Affirmative action: Choose the other Bakke Affirmative action: Choose the other Bakke
By HAROLD JOHNSON updated: 04/07/2003 08:17 AM
The U.S. Supreme Court last week heard two widely publicized lawsuits against the University of Michigan's "diversity" policies that give explicit advantages to racial minorities in the admissions process. The ideal result would be for Regents of the University of California v. Bakke to be affirmed as law of the land. I don't mean the confusing, self-contradictory Bakke ruling that the high court handed down 25 years ago this June.
While purporting to outlaw quotas, that decision said race could still count in university admissions - a recipe for quotas by another name. The Bakke holding that should be embraced is the more principled decision that California's Supreme Court issued earlier in the same case. The court said that giving an applicant extra consideration because of color is unconstitutional, period. Alan Bakke, a caucasian, was turned away by the University of California-Davis' Medical School while students with lower grades and test scores were let in under a minority set-aside program.
The California Supreme Court found the set-asides invalid. Ruling that Bakke should be let into medical school, the California justices said the Constitution's guarantees of equal justice protect people of all colors, even white males. The notion "that the Constitution sanctions racial discrimination against a race - any race - is a dangerous concept fraught with potential for misuse," the majority declared. The California Bakke ruling was as notable for who wrote it as for what it said. The author was Justice Stanley Mosk, "the last of the New Deal liberals in California public life," as a San Francisco Chronicle legal reporter wrote when Mosk died two years ago at 88.
Arguably, no jurist in America has had a stronger civil rights record than Stanley Mosk. In 1947, as a Los Angeles judge, he struck down whites-only real-estate clauses. As state attorney general in the early 1960s, he threatened to block a Professional Golfers' Association tournament on a public golf course if qualified African-American players were barred.
On the state Supreme Court, he delivered a milestone ruling against racial discrimination in jury selection. Mosk believed in the value of a diverse student body, but insisted that divisive, color-coded admissions was not the fair way to achieve it. Rather, as his Bakke opinion put it, a university could make special efforts to recruit "disadvantaged students - but they must be targeted at needy students of all races." Unfortunately, Mosk's commitment to the "equal" in equal rights was not seconded by Justice Lewis Powell, who voted to admit Bakke but endorsed the use of race as a factor in admissions.
The historic core principle of civil rights is that no one should be treated better or worse than another because of race. The Supreme Court should use the Michigan cases as an opportunity to declare that Justice Powell got it wrong, and Justice Mosk got it right. Harold Johnson is an attorney with Sacramento, Calif.,-based Pacific Legal Foundation, which has submitted briefs opposing the University of Michigan's race-conscious admissions policies.
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