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The current widespread use of remedial affirmative action programs makes the legitimacy of reverse discrimination a pragmatic social concern. That alone, however, would not explain the intense interest generated by Regents of the University of California v. Bakke. The question posed in the case compels our attention because it forces a choice between two values that occupy a high place in the liberal conception of justice and claim substantial support in the equal protection clause. On the one hand, justice requires that groups that have previously suffered gross discrimination be given truly equal opportunity in American life; on the other, justice precludes the assignment of benefits and burdens on the arbitrary basis of racial and ethnic characteristics. So long as steps to correct racial injustice were limited to assuring that individual members of minority groups would receive the same benefits and opportunities available to persons like them except in race, the steps implemented both these values (against the competing claim that individuals and organizations should be left free to assign benefits and opportunities on whatever grounds they chose). But when individual blacks and members of other minority groups began to be given benefits at the expense of whites who, apart from race, would have had a superior claim to enjoy them, the values were brought into sharp conflict, dividing previously allied liberal organizations such as the NAACP and the Anti-Defamation League, producing an outpouring of anguished commentary by legal scholars and philosophers, and creating serious doubts about the legality of such practices.

Those who hoped (or feared) that the major legal questions would be decisively resolved by the Supreme Court in Bakke have been dis appointed (or relieved); but at least the Court finally has confronted the substantive issues. The opinions bear the stamp of the travail that accompanies determination of unsettling problems. The travail is most evident in Justice Powell's opinion, which strikes a middle ground, permitting consideration of race in professional school admissions but barring the allocation of a fixed number of places for minority group members. Justice Powell has won well-deserved respect as a thoughtful moderate who is sensitive to both sides of perplexing issues and who strives with remarkable success for a reasoned accommodation of conflicting interests. If his opinion in Bakke fails to persuade, which is one of the central theses of this Article, that is perhaps but a further mark of the enormous difficulty of the problem with which it deals.

The three crucial opinions in Bakke resolve very little that was not already obvious. This is partly because each opinion has its own limited focus and ambiguities, but it is primarily because of the manner in which the conclusions of the three opinions relate to one another. One aim of this Article is to indicate what is clear and what is not clear about each opinion, and to demonstrate how very little the case authoritatively "stands for'' as a whole. Brief consideration is given to several interesting features of the problem of statutory interpretation faced by the Court, followed by a somewhat more detailed discussion of the merits of the constitutional analysis in the opinions of the five Justices who discussed constitutionality. It is concluded that the sounder constitutional position is that taken in the opinion of Justices Brennan, White, Marshall, and Blackmun.


Civil Rights and Discrimination | Law | Law and Race