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发帖数: 4184 | 1 The Medical School of the University of California at Davis was typical. It
reserved sixteen of the one hundred slots in its entering classes for
minorities. In 1973 and again in 1974, Allan Bakke, a white applicant, was
denied admission although his test scores and grades were better than most
or all of those admitted through the special program. He sued. In 1977, his
case, Regents of the University of California v. Bakke, reached the Supreme
Court. The Court rendered its decision a year later (438 U.S. 265 [1978]).[
13]
An attentive reader of Title VI of the Civil Rights Act might have thought
this case was an easy call. So, too, thought four justices on the Supreme
Court, who voted to order Bakke admitted to the Medical School. Led by
Justice Stevens, they saw the racially segregated, two-track scheme at the
Medical School (a recipient of federal funds) as a clear violation of the
plain language of the Title.
Four other members of the Court, led by Justice Brennan, wanted very keenly
to save the Medical School program. To find a more attractive terrain for
doing battle, they made an end-run around Title VI, arguing that, whatever
its language, it had no independent meaning itself. It meant in regard to
race only what the Constitution meant.[14] Thus, instead of having to parse
the stingy and unyielding language of Title VI (“no person shall be
subjected to…on the ground of race”), the Brennan group could turn their
creative energies to interpreting the broad and vague language of the
Fourteenth Amendment (“no person shall be denied the equal protection of
the laws”), which provided much more wiggle-room for justifying racial
preferences. The Brennan group persuaded one other member, Justice Powell,
to join them in their view of Title VI. But Powell didn't agree with their
view of the Constitution. He argued that the Medical School's policy was
unconstitutional and voted that Bakke must be admitted. His vote, added to
the four votes of the Stevens group, meant that Allan Bakke won his case and
that Powell got to write the opinion of the Court. The Brennan strategy
didn't reap the fruit it intended.
Against the leanings of the Brennan group, who would distinguish between “
benign” and “malign” uses of race and deal more leniently with the former
, Powell insisted that the Fourteenth Amendment's promise of “equal
protection of the law” must mean the same thing for all, black and white
alike. To paraphrase Powell:
The Constitution can tolerate no “two-class” theory of equal protection.
There is no principled basis for deciding between classes that deserve
special judicial attention and those that don't. To think otherwise would
involve the Court in making all kinds of “political” decisions it is not
competent to make. In expounding the Constitution, the Court's role is to
discern “principles sufficiently absolute to give them roots throughout the
community and continuity over significant periods of time, and to lift them
above the pragmatic political judgments of a particular time and place” (
Bakke, at 295–300 [Powell quoting Cox 1976, 114]).
What, then, was the practical meaning of a “sufficiently absolute”
rendering of the principle of equal protection? It was this: when the
decisions of state agents “touch upon an individual's race or ethnic
background, he is entitled to a judicial determination that the burden he is
asked to bear on that basis is precisely tailored to serve a compelling
governmental interest (Bakke, at 300).
Powell, with this standard in hand, then turned to look at the four reasons
the Medical School offered for its special program: (i) to reduce “the
historic deficit of traditionally disfavored minorities in medical schools
and the medical profession;” (ii) to counter “the effects of societal
discrimination;” (iii) to increase “the number of physicians who will
practice in communities currently underserved;” and (iv) to obtain “the
educational benefits that flow from an ethnically diverse student body” (
Bakke, at 307). Did any or all of them specify a compelling governmental
interest? Did they necessitate use of racial preferences?
As to the first reason, Powell dismissed it out of hand.
If [the School's] purpose is to assure within its student body some
specified percentage of a particular group merely because of its race or
ethnic origin, such a preferential purpose must be rejected not as
insubstantial but as facially invalid. Preferring members of any one group
for no reason other than race or ethnic origin is discrimination for its own
sake.
As to the second reason, Powell allowed it more force. A state has a
legitimate interest in ameliorating the effects of past discrimination. Even
so, contended Powell, the Court,
has never approved a classification that aids persons perceived as members
of relatively victimized groups at the expense of other innocent individuals
in the absence of judicial, legislative, or administrative findings of
constitutional or statutory violations (Bakke, at 308).
And the Medical School does not purport to have made, and is in no position
to make, such findings. Its broad mission is education, not the formulation
of any legislative policy or the adjudication of particular claims of
illegality.…[I]solated segments of our vast governmental structures are not
competent to make those decisions, at least in the absence of legislative
mandates and legislatively determined criteria (Bakke, at 309).
As to the third reason, Powell found it, too, insufficient. The Medical
School provided no evidence that the best way it could contribute to
increased medical services to underserved communities was to employ a
racially preferential admissions scheme. Indeed, the Medical School provided
no evidence that its scheme would result in any benefits at all to such
communities (Bakke, at 311).
This left the fourth reason. Here Powell found merit. A university's
interest in a diverse student body is legitimated by the First Amendment's
implied protection of academic freedom. This constitutional halo makes the
interest “compelling.” However, the Medical School's use of a racial and
ethnic classification scheme was not “precisely tailored” to effect the
School's interest in diversity, argued Powell.
The diversity that furthers a compelling state interest encompasses a far
broader array of qualifications and characteristics of which racial or
ethnic origin is but a single though important element. [The Medical School'
s] special admissions program, focused solely on ethnic diversity, would
hinder rather than further attainment of genuine diversity (Bakke, at 316).
The diversity which provides an educational atmosphere “conducive to
speculation, experiment and creation” includes a nearly endless range of
experiences, talents, and attributes that students might bring to campus. In
reducing diversity to racial and ethnic quotas, the Medical School wholly
misconceived this important educational interest.
In sum, although the last of the Medical School's four reasons encompassed a
“compelling governmental interest,” the School's special admissions
program was not necessary to effect the interest. The special admissions
program was unconstitutional. So concluded Justice Powell. |
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