Bakke: The Legal Profession in Crisis

...But the nature of the offense, we ought to be clear, does not inhere in the fact that people may be denied a house...

...Moral principles involve propositions that are true as a matter of necessity, now and for all time...

...It is the peculiar disability of moral arguments that they will quickly be opposed as too "abstract" and unrealistic by the people who find their results uncongenial...

...When we consider the current practices of Offices of Admissions in this country, we find that many of them have backed into the same theories of racial determinism that underlay the perspectives of racialists in the past...

...and that students will generally be improved by the experience...

...that an encounter of minds will take place in the classrooms or the dormitories...

...For if it is plausible to believe (as the Office of Admissions does) that a student will be able to convey to other students the sense of his culture in the ghetto, it is quite as plausible to argue that he will also carry with him many of the looser conventions about theft and crime that prevail in the ghetto...

...What I would argue here is that our laws against discrimination on the basis of race can in fact be grounded in propositions of this kind...

...Nor has that omission been supplied in any of the decisions on segregation and discrimination that have been rendered since that time...

...The case he argued to the Supreme Court at the time was burdened by all the tortured formulas and accumulated cliches that modern jurisprudence has devised for the sake of dealing with matters of moral consequence while pretending that the law has nothing to do with questions of morals at all...

...Clearly, it cannot be true as a matter of necessity...

...The judgment of the act is detached from any subjective feeling about its consequences or its material effects...

...Modern lawyers, especially lawyers from the most established schools, are the children of Holmes rather than Blackstone, and it is in the tradition of Holmes that Mr...

...As I will try to show in a moment, the case against racial discrimination becomes wholly unworkable and even ludicrous when the definition of the "wrong" is reduced to the estimate of material injuries...

...Determined" behavior is that which we associate, for example, with falling bodies, and behavior of that kind cannot be the object of legal and moral responsibility...

...Yet if these matters were to be judged rigorously by the test of material injuries, it would be impossible to establish that a material injury has occurred in most of these cases...

...of the things that are in principle good or just...

...According to Mr...

...Like the racialists of old they now assume that race essentially determines in significant ways the moral character of individuals...

...but he failed to disclose, of course, the grounds on which it would have been proper to raise doubts at all...

...The far deeper problem lies in the incomprehension that has been shown by the most celebrated minds in the profession over the meaning of "principle" itself...

...Let us assume further that the property was distributed to a class of people who had never before had substantial holdings of their own...

...What we are compelled to say in response is that it would be unwarranted to make a transition of that kind between the aggregate characteristics of a racial group and the moral character of any particular member...

...Cox, as Solicitor General of the United States, had to explain how the Constitution could forbid discrimination on the basis of race in public inns and restaurants...

...In turn, that shortfall of trade would reduce the amount of orders that these businesses would place with other businesses (e.g., for meat, linens, furniture), and the effect would be to depress even further the level of trade and, presumably, the standard of living...

...The point may come closer to us, though, in another way...

...4 / FEBRUARY 1978 Hadley Arkes Bakke: The Legal Profession in Crisis Affirmative action strikes at the very principles that underlie our laws on civil rights...

...The question is why discrimination on the basis of race cannot be considered legitimate in the same way...

...The question may be raised, however, at the last: If we insist on holding to the matter of principle here, is there not a risk that there will be a shortfall in the enrollment of minorities in certain schools...

...There has been a rough sense over the years that the exclusion of certain groups implies a judgment about their inferiority or their moral undesirability, and this persuasion runs back to the first Justice Harlan in the famous Plessy case in 1896...

...I Archibald Cox to explain to the Supreme Court why it was quite tenable, under the Constitution, to turn Allan Bakke away from medical school on account of his race...

...There is, then, no longer any difference in principle that separates the argument of the racialist from the argument of the Admissions Office...

...We accept the exclusion of people in one case but not the other, and our reasons have nothing to do with food...

...It used to be understood, however, by people schooled in philosophy, that no set of material results can lend itself to moral judgments in the absence of principles of judgment...

...They may be inclined to argue that since the level of violent crime is higher in black areas, the risk of crime will rise as the proportion of blacks within the neighborhood rises...

...But the understanding that must be faced once again is that the question of material outcomes can never override a question of principle...

...A "victory" for them in these cases would surely ruin them in the most fundamental sense, even if it would appear to satisfy for a moment the material interests of some of their members...

...One lawyer for the NAACP was recently quoted as saying that it would take "a decade of opinion writing" before all the questions of equity involved in these cases could be sorted out...

...We are forced to remind ourselves in the end that any people who would preserve their freedom cannot be blind to the possibility that they may gain their material ends in certain cases only by affirming principles inconsistent with the premises on which all of their rights depend...

...When an attempt is made to undo the injustice that was done, it is resisted by the party of "social change," which insists that there is a need to "compensate" the poor for some of the inequalities that were accumulated in the past...

...But that assumption cannot be indulged, the policy of reverse discrimination cannot be accepted in any degree, without denying the very idea of law and morals...

...it would seem to reflect an interest on the part of the owners in preserving a certain style or decorum in their establishment, and that interest could be shown to be quite legitimate...

...Some black applicants come from families that are better off than the families of many white applicants, and if a school, say, like Amherst College would give a certain preference, categorically, to female applicants, some of those women would bear names such as Chapin, Cabot, and Lodge: They would not be The American Spectator February 1978 7 attached to any persons who have suffered in the past as a result of being excluded from the college when it was confined to males...

...When it came to the matter of discrimination in public establishments, the Solicitor General and the Court found it convenient to argue in this way: If blacks faced the prospect of discrimination in public inns and restaurants, they might be discouraged from travelling among the states...

...The ends of the law were to be reduced, in other words, to the measure of material outcomes, quite apart from the grounds of principle on which schools managed to produce those material results...

...Nor can one assume, on the basis of race or sex alone, that one is dealing with a person who has partaken of the injuries that were suffered by blacks and women in the past...

...Beyond that, there is a disposition to believe that he will be able to impart a sense of justice to other students...

...It does not take much experience, however, to realize that perspectives can be articulated only by individuals, and that none of the benign effects that are stipulated here can possibly be inferred from the race (or sex) of the students...

...Yet in a number of ways it is evident that in their daily lives people are highly attentive to the question of whether they would gain their immediate ends on the basis of procedures that may undercut a deeper principle...

...Professor Dworkin is candid enough to acknowledge that a program of "preferential admissions" might not really achieve the ends laid out in this list, but he insists also that "it cannot be said to be implausible that it will...

...The danger, he thought, was that no system of selection that was racially neutral would figure to enroll more than a "trickle" of minority students...

...Cox would pretend that there was any ground of principle that mandated one set of numbers rather than another or which marked 'off the enrollments that satisfied the standards of justice...

...That question is complicated, and the answer, as an empirical prediction, is by no means clear...

...But as a general matter, aggregates such as racial or ethnic groups may not be singled out for special punishments or restrictions, and the reason, very simply, is that we cannot attribute to these groups, as corporate groups, a tendency toward criminality or immorality, as though the group exerted some unfailing deterministic control over the moral practice of each member...

...The lesson that seems almost impossible to convey these days is that this whole mode of argument is in point of principle inadmissible...

...For all of his assertions about race and equality, it was evident that Harlan was as far as anyone from explaining the ground of principle involved in this problem: He was never able to offer an account of the precise grounds on which it would be wrong of necessity to assume that a group defined by race may be morally inferior...

...In the eyes of the law, then, the problem of discrimination in places of public accommodation did not lie in any injustice that was done to black people, but in the interference it might produce in the interstate flow of meat...

...Legal responsibility assumes a certain free will or moral autonomy on the part of individuals in forming their own acts and making decisions on matters of right and wrong...

...Cox could offer was that, "as a constitutional lawyer, the further [the medical school moved in that direction] the more doubts I would have...

...THE AMERICAN SPECTATOR VOL...

...We take the measure of any profession by gauging the thought of those minds which it regards as its best, and Dworkin represents, quite as dramatically as any other writer, the distance that now separates jurisprudence from the tradition of moral and political philosophy that formed its foundation...

...It may be true, for example, that "If Saks Fifth Avenue moves into the neighborhood, the whole neighborhood will prosper"—but it may not be...

...The wrong of the case inheres in the principle that animates the act: The willingness to discriminate on the basis of race denies, in relation to blacks, that moral autonomy which provides the very premise of all morals and law...

...These kinds of considerations, which seem so petty on their face, become pertinent and even decisive when the measurement of the "wrong" is reduced to the estimate of material injuries...

...It should have occasioned no surprise, therefore, when the argument Mr...

...Whether it will be true or not will be contingent on a number of other events...

...Cox, the question raised by the Bakke case was whether members of minorities are to have "meaningful access" to higher education or whether they are "to be reduced to the trivial numbers which they [held] prior to the adoption of minority admissions programs...

...It might well improve the quality of legal education for all students, moreover, to have a greater number of blacks as classroom discussants of social problems...

...Further, if blacks are seen as successful law students, then other blacks who do meet the usual intellectual standards might be encouraged to apply, and that, in turn, would raise the intellectual quality of the bar...

...So it is sobering to encounter a book quite as celebrated as Professor Ronald Dworkin's recent work, Taking Rights Seriously, and to discover that, as Dworkin sets forth the considerations that might argue for "reverse discrimination," he provides a virtual inventory of contingent propositions: If there are more black lawyers, they will help to provide better legal services to the black community, and so reduce social tensions...

...But now, with reverse discrimination and affirmative action, we have been asked to accept the very arguments that we were compelled to reject in the past in making the case against segregation...

...there is no caste here...

...The insistence on a necktie bears no invidious intent...

...Not even Mr...

...Cox offered against Allan Bakke was similarly emancipated from the properties of a principled argument...

...The fact that a black is turned away from one restaurant cannot establish with any strictness that he would be turned away at another restaurant of comparable quality across the street...

...The understanding is not too abstract, then, or arcane, and it may apply quite as well to the issue of Bakke and affirmative action...

...When the question was raised as to why it was wrong for the Moose Lodge, as a private association, to discriminate on the basis of race, Douglas' response ran along these lines: The Moose Lodge received a license from the state to serve liquor on its premises...

...and so it becomes important to distinguish between real "principles" of morals and propositions that are merely empirical and contingent...

...The empirical evidence has hardly been necessary to establish the problematic nature of these propositions...

...What we think we know about the incidence of crime in black neighborhoods could not possibly determine that the black family that moves in next door will be composed of criminals...

...If that is indeed the current level of understanding, one would have to say finally, with Henry James, that such people are the victims of perplexities from which a single spark of direct perception might have saved them...

...When we take it upon ourselves to legislate for other people—when we presume to override their personal choices and make rules that are binding on them—we imply the existence of "morals" or moral principles in the strictest sense...

...In light of this news it can only be regarded as a mercy to us all that a case on this subject did not arise while justice Douglas was still on the Court, for we would have had then the construction of a constitutional claim of unmeasured novelty...

...but it should have been sufficient to remind legal scholars that, when they cast their arguments in this form, they are doing nothing more than advancing empirical predictions and contingent "truths...

...justice Rehnquist: What if the medical school in Davis, California, decided to set aside seats each year for 50 members of minorities rather than 16—and indeed, as our imagination extends the question, what if the medical school had decided to draw its class exclusively from members of minority groups until each minority accounted for its proper share of the medical profession in the state...

...The racialist would argue in precisely the same way: He too would make inferences from aggregate data, but he would point to other data and draw other inferences...

...Taking Rights Seriously, p. 228] Outside the offices of stockbrokers and bookmakers one is not apt to find such an example of a professional who rests important judgments of policy on a catalogue of empirical predictions of such dubious merit...

...only a restricted number of these licenses was made available by the state...

...This recognition must be implicit in the very notion of law or jurisprudence itself...

...As we have seen them at work in the cases on civil rights, these contingent propositions have become familiar to us in arguments of this kind: —If black children go to schools that are at least 75 percent white, they are likely to read better in the aggregate—and possibly end up getting better jobs...

...The question is not asked, I think, because we seem to understand that the rightness or wrongness of slavery was established on grounds of principle that were quite independent of the question of whether the former slaves were happy or not as slaves, or whether they would have been more secure and prosperous if their slavery were ended...

...The question is just why the NAACP and its allies are inclined to spend so much of their treasure and their prestige in efforts to defend schemes for racial quotas and reverse discrimination...

...8 The American Spectator February 1978...

...What is profoundly unsettling is that one of the most anointed figures in jurisprudence today has absolutely no awareness of the difference between a proposition that makes a prediction and a proposition that states a principle...

...There is a restraint here which comes from the recognition that certain "victories" are not victories at all if they establish precedents that are inconsistent with the terms on which people prefer to live...

...When people discriminate on the basis of race, then, in a matter like housing, they would suggest that if we simply knew the race of the applicant we would know something also about the moral quality of his behavior and his prospects for being a good neighbor...

...11, NO...

...In this particular case, the preference is for black groups with a wide degree of autonomy, which can resist interference from whites...

...Hadley Arkes teaches constitutional law at Amherst College...

...But our most respected jurists are simply unable to clarify questions of principle, and in that sense Bakke marks a serious crisis for the legal profession itself...

...At that moment, I think, we would come to recognize again that justice cannot be defined merely by the distribution of material benefits—that the essential justice of any distribution cannot be divorced from the grounds of principle on which the benefits are acquired...

...And by that test the racialists are apt to be right quite as often as the Offices of Admissions...

...The wrongness of the act, then, has nothing to do with the consequences: It would still be wrong even if the black family turned out to be happy with the result—if, for example, in being rejected for one house, they happened to find another they liked even more...

...As the classics understood, law must proceed from an understanding, in this sense...

...The two differ only on the question of who has made the most tenable inference from the aggregate data...

...But this time we are asked to assume that race (or sex) is the determinant of good character or benign effects: We are asked to assume, for example, that a black student will be able to articulate to other students what it means to be poor and black...

...Indeed, that moral autonomy is the very mark of theirdistinctiveness as human beings and the precondition of their citizenship...

...And like the racialists they reach their decisions by combining a rough utilitarianism with a disposition to make inferences from aggregate data...

...But lawyers and judges have not shown any notable aptitude for clarifying these questions of principle, and in that sense the Bakke case has marked a serious crisis for the legal profession itself...

...The consummation of this logic probably came several years later in justice Douglas' notable dissent in the Moose Lodge case...

...When the question has been raised then as to where the "injustice" (or the "injury") lies in the cases of discrimination in inns and restaurants, the children of modern jurisprudence have been rather uniform in their answers: The dominant response has been that blacks are injured in these cases because they are denied access to food and lodgings that are available to whites...

...rapists, robbers, arsonists) or classes defined by common disabilities (e.g., mental incompetents...

...Harlan argued there that the Constitution was "color-blind": Discriminations founded on race were inconsistent, not only with that equality of rights that applies to citizens, but with that natural liberty that is preserved for all persons, including those who are not citizens...

...And yet Harlan could also declare in the same opinion that "there is a race so different from our own that we do not permit those belonging to it to become citizens of the United States...

...No shortfall of enrollments in a medical school can constitute an injury in itself in the absence of a principle that explains what is justified or The American Spectator February 1978 5 unjustified about the procedures that produced these results...

...and if some of the establishments which enjoyed these licenses also discriminated on the basis of race, the breach of the Constitution would become manifest: Blacks would not receive their fair share of drinks per capita in the state...

...These principles cannot be dependent merely on experience, because "experience" lies in the future, as well as in the past, and no proposition can claim the rank of a necessary truth if its validity may be affected in any serious way by events that crop up in the future...

...The problem, however, over the past 40 years, is that the argument against racial discrimination, in one case after another, has been cast in the form of just such contingent propositions about material outcomes—propositions on the order of: "If Saks Fifth Avenue moves into the neighborhood, the whole neighborhood will prosper...

...The Office of Admissions would probably concede that things will not always work out this way, but it would argue that there is a decent chance that they will, and the prospect of the good that is done overall may outweigh, on balance, the wrong that is inherent in turning people away on the basis of race...

...When lawyers and judges ceased being concerned foremost about the understanding of principles, they began to identify the presence of an "injustice" with the suffering of a material "injury" (or the deprivation of a material good...

...If blacks do not gain admission to the only law school run by the state, they will not make the social connections that are necessary for a successful career...

...That is to say, we imply that there are grounds on which we can speak about the things that are more generally or universally "good"—i.e., good for others as well as ourselves...

...The most Mr...

...Now of course it simply cannot follow as a matter of necessity that a black child who attends a predominantly white school will become a better reader or get a better job...

...If this act is not wrong, nothing can be wrong, because there can be no concepts of "right" and "wrong" to which individuals can be held responsible...

...One needs to remind oneself here of an elementary point in jurisprudence: that the law gives remedies or reparations only to people who have themselves suffered injuries, and it imposes liabilities only on people who are themselves responsible for the injuries...

...As foolish as all of this may sound, it nevertheless represents the kind of reasoning that legal scholars were destined to produce once they had absorbed the notion that the language of morals had to be placed "outside the law" altogether...

...Whether it is employed by the racialist or by the Admissions Office, it carries the assumption that race does indeed govern the character of individuals, and that people cannot detach themselves from the ethic of their racial groups to reach judgments of their own about matters of right and wrong...

...It is not merely the fact that lawyers and judges have failed to settle the grounds of principle that underlie these cases on discrimination and affirmative action...

...It is clear that the difference fails to matter for Dworkin, and for that reason he finds nothing disturbing in the prospect of contravening the freedom of individuals (e.g., by assigning them to schools on the basis of racial quotas) or apportioning benefits and disabilities, not on the basis of moral truths that must be necessary, but on the basis merely of propositions, as he says, that are not "implausible...

...The argument he would offer would probably run along these lines: The aggregate data show that the crime rate is generally higher in black neighborhoods...

...If white students do not have the experience of attending schools with blacks, they will be more inclined to preserve the separation of the races that has prevailed in the past...

...And the law which condemns this act would achieve the firmest grounding that Kant understood a law could have: It would be derived from premises that are logically necessary to the notion of law itself...

...The question would turn, rather, on the ground of principle on which the exclusion is made to rest in either case...

...Neither does it follow that a black person who is admitted to an integrated law school will form important social connections with his classmates and then go on to prosper...

...In any strict reckoning it would simply not be plausible to argue in most of these cases that blacks are denied food when they are turned away from a restaurant: People are turned away from restaurants quite often because they 6 The American Spectator February 1978 are not wearing neckties, and yet no one thinks of suggesting that they have been denied food (and that they have suffered an "injury...

...Of course, that doesn't mean that any particular black person will be a criminal...

...The opinions he has offered have been written, as Holmes once said, as "if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law...

...If our most respected judges had managed to get clear on the strict meaning of a "principle," and if they had succeeded in establishing the grounds of principle for their decisions on segregation, we would not have to stagger from case to case today in a chain of litigation that never ends...

...What must be counted as far more decisive in these cases are the principles that are implicit in discrimination, quite apart from the material results they happen to generate...

...It is interesting in this respect that no one raises the question: How has the abolition of slavery in this country worked...

...It is evident that these claims need not be true, and they have been open to the persistent embarrassment of empiricalstudies that show, in particular cases, that they are wrong...

...That question can finally be answered, I think, only if one takes the issue, as Kant suggested, to the root: to the logic that is inherent in the concepts of morals and law themselves...

...For that reason he could provide no answer to the problem posed by Mr...

...We may decently indulge this preference here, much in the way that the Admissions Office is willing to do injustice to individuals in separate cases for the sake of attaining what it regards as a larger, cumulative good...

...It is apparent, for example, that members of Afro-American groups are constrained from appealing to white groups and institutions for the sake of gaining support for their positions within their own organizations...

...What is surprising here, of course, is not Dworkin's immense credulity in the face of the problematic...

...Twelve years earlier Mr...

...Let us assume that we have a government that was committed to the ends of redistribution, and that it hit upon the device of expropriating the businesses of all Chinese or Jews (for no other reason than the fact that the owners were Chinese or Jewish...

...As the aphorism may go, "If we undo what was done, we would stop the material gains made by people who had never possessed businesses of their own...

...The ends of justice were not to be reached through principles of justice, but through a process of reduction in which questions of justice were translated into material injuries or attached to the formulas of the Commerce Clause—as though the Constitution itself foreclosed reasoning that was distinctly moral...

...But the statistics are sufficiently plausible in the aggregate that we may be justified in turning certain students away on the basis of race now for the sake of achieving a larger good in the aggregate...

...For that reason it would be the essence of injustice to use the characteristics of the aggregate as the basis for what we do in relation to any black family in particular...

...Cox has been fashioning his arguments over the years...

...If blacks were discouraged in this way, the effect would be to reduce the total volume of trade that was available to restaurants and inns and other places of public accomodation...

...t was only fitting that the task should fall to Mr...

...The "race" he had in mind was the Chinese, and he made it clear that, in his own understanding, the Chinese were barred from a position of equality in this country as a result of their "racial" or cultural differences...

...The typical Office of Admissions assumes, as I have suggested, that if one knows that a young person is black—or if one knows, for example, that he comes from Harlem—then it is likely that he will be able to articulate a certain perspective on life in a poor neighborhood...

...In the noted case of 011ie's Barbecue in Birmingham, in which the issue was argued out before the Supreme Court, the restaurant happened to offer service to blacks at a takeout counter...

...Once again we are asked to assume that, if we merely know the race (or sex) of a student, we can infer something morally interesting about that student...

...It might be said as a fundamental point of recognition that the only groups which the law may properly pick out for disadvantages or punishments are groups defined by specific criminal acts (e.g...

...As Harlan put it, there is, in this country, "no superior, dominant ruling class of citizens" marked by race...

...At the same time it would have become evident that schemes for affirmative action and reverse discrimination cannot be indulged in any degree without striking at the premises on which our laws on civil rights find their firmest foundations...

...In any case, preferential admissions of blacks should decrease the difference in wealth and power that now exists between different racial groups, and so make the community more equal overall...

...It has been reported recently that some of the legalized brothels in Las Vegas refuse to admit blacks as customers...

...Therefore, the larger the number of blacks in the area, the higher the crime rate will be...