How the Justices Disagreed

Highlights of the Supreme Court opinions:

Justice Powell, for the majority:

The guarantees of the Fourteenth Amendment [are] explicit: "No state ... shall deny to any person within its jurisdiction the equal protection of the laws." The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal,.. Petitioner [the University of California] urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white "majority" cannot be suspect if its purpose can be characterized as "benign." The clock of our liberties, however, cannot be turned back to 1868. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.

It may not always be clear that a so-called preference is in fact benign ... Preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection .,. There is [also] a measure of inequity in forcing innocent persons in [Bakke's] position to bear the burdens of redressing. grievances not of their making...

The State certainly has a legitimate and substantial interest in ameliorating or eliminating where feasible the disabling effects of identified discrimination ... In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past. We have 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.

Justice Stevens (with the concurrence of Justices Burger, Stewart and Rehnqulst):

Section 601 of the Civil Rights Act of 1964 provides:

"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in... any program or activity receiving Federal financial assistance."

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below [for Bakke].

Justices Brennan, White, Marshall and Blackmun:

[Our judicial differences] should not and must not mask the central meaning of today's opinions: Government may take race into account when it acts not to demean or insult any racial group but to remedy disadvantages cast on minorities by past racial prejudice...

Our Nation was founded on the principle that "all men are created equal." Yet candor requires acknowledgement that the Framers of our Constitution openly compromised this principle of equality with its antithesis: slavery ... It is well to recount how recent the time has been, if it has yet come, when the promise of our principles has flowered into the actuality of equal opportunity for all regardless of race or color...

Claims that law must be "colorblind" or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot ... let color blindness become myopia which masks the reality that many "created equal" have been treated as inferior...

On the basis of the undisputed factual submissions before this Court, Davis had a sound basis for believing that the problem of underrepresentation of minorities was substantial and chronic and that the problem was attributable to handicaps imposed on minority applicants by past and present racial discrimination ... The Davis program does not simply advance less qualified applicants; rather, it compensates applicants, whom it is uncontested are fully qualified to study medicine.

Justice Blackmun:

It is worth noting, perhaps, that governmental preference has not been a stranger to our legal life. We see it in veterans' preferences. We see it in aid-to-the-handicapped programs. We see it in the progressive income tax...

I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.

Justice Marshall:

During most of the past 200 years, the Constitution, as interpreted by this court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order ... The racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America is not merely the history of slavery alone, but also that a whole people were marked inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color, he never even made it into the pot...

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