Bakke's Implication

...The solution that is simple, easy—and wrong—is racial and ethnic "quotaism...

...Nine Justices, six opinions, two specific judgments...

...In short, one need not hide racial preference behind the dis­guise of ethnic diversity...

...The fatal flaw in petitioner's preferential program," he reasons, "is its disregard of indi­vidual rights as guaranteed by the Fourteenth Amendment...

...A personal note: In the course of several years of laboring in the vineyard of affirmative action in general and of the Bakke case in particular, it has become clear to me that a good many of those in the pro-Bakke camp were and are "closet" racists, people who do not really want to help blacks, Hispan­ics or Native Americans...

...Not enough black college students, for example, undertake the tough mathematics and science courses that are prerequisite to medical school admission...

...But what it really shows is that any affirmative action program deserves to be scrutinized carefully, as well as sympathetically, in terms of its actual effects...

...It is difficult to elicit clarity from the 154 pages of opinions which were handed down...

...Since "quotaism" is so heavily opposed by the public at large, even if it were to be ratified by the Supreme Court, its utilization would serve to further polarize our society, as well as to discredit other types of affirmative action which are more acceptable...

...A university is permitted to seek diversity, so long as its admis­sions process "treats each applicant as an individual...

...Yet the reaction of the Amsterdam News is important because it epito­mized the intensity of feeling on the part of many blacks in support of quotas and racial preference, as well as their conviction that the Jews have betrayed them on this vital issue...

...One is permitted, constitutionally, to endorse the use of race explicitly "where there is a sound basis for concluding that minority underrep­ resentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the medical school...

...Justice Powell was the key to the two decisions, joining with four of his colleagues in the affirmation and joining with the other four in Samuel Rabinove is Legal Director for the American Jewish Comittee...

...How­ever ambiguous the decision, and however much difficulty admis­sions officers may have in being guided by it, affirmative action has been held permissible...

...Most Jews, for example, while quick to express their strong aver­sion toward quotas, seem prepared to be supportive of other reason­able, less drastic affirmative action measures to rectify the conse­quences of past discrimnation...

...The Supreme Court may soon have still another opportunity to clarify affirmative action law in the employment sphere...

...Others secretly share the contemptible views of Dr...

...Actually, it is apparent that many of the non-Jewish white ethnic groups are presently "underrepresented" in the learned professions...

...Hence it is worth noting, and respecting, those black spokesmen who have been appearing in inner-city schools and neighborhoods throughout the country to call upon students, teachers and parents to join in programs to upgrade black student achievement levels...

...one need not say that race may be only one of many factors taken into account...

...Perhaps this attempt to snatch defeat from what was at least a measurable victory for black people may be excused as an ill-advised, impulsive response...

...In fact, there is consider­able evidence that many, if not most, of the black students admitted preferentially in recent years to Harvard College come not from economically or culturally disadvantaged backgrounds, but rather from comfortable, middle class homes...

...Obviously, the fact that the Court did not spec­ify precisely the extent to which race may be taken into account will create problems...

...Moreover, the promotion of diversity is to be distinguished from preference...

...There was no such violation at Davis—specifically, there was no history there of racial discrimina­tion...

...Their demand­ing message reportedly has been greeted with enthusiasm, including their attacks on those elements of the contemporary "youth culture" which feature the escape mecha­nisms of alcohol, drugs and sex rather than scholastic achievement...

...They held that "we cannot and .. . need not under our Consti­ tution or Title VI...

...Depending on how it is imple­mented, then, the quest for "diver­sity" may well affect adversely members of groups, such as Jews, which for various historical and cultural reasons, tend to be "over­represented...

...The fears expressed by many in the civil rights movement that the Supreme Court would use the Bakke case as an instrument to destroy affirma­tive action were unfounded...

...the reversal...

...What was the gist of the Powell argument...

...What is not permissible—as far as university admissions are concerned—is the use of racial and ethnic quotas The quest for "diversity" may well affect adversely members of groups which tend to be "overrepresented...

...The Congress/Committee brief, however, emphasized disadvan­tage, whether caused by discrimi­nation or other factors, not diver­sity...

...Court of Appeals struck down a one-to-one racial hiring quota for a job train­ing program, set up by the com­pany on a voluntary basis as part of an affirmative action plan, on the ground that past discrimination had not been established...

...Court of Appeals decision which upheld the validity of a 1973 con­sent decree that required the Amer­ican Telephone and Telegraph Company to hire and promote more blacks and women...

...In his Forward to Minorities in Medicine by Dr...

...They have stressed the importance of establishing high academic stan­dards and the need for attaining self-discipline as the path to meet­ing such standards...

...The California Supreme Court had based its decision on the Equal Protection Clause, but the Stevens quartet based their judg­ment squarely on Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the ground of race, color or national origin in any program or activity receiving Federal financial assis­tance...

...Regrettably, though, and all too frequently, in others the distinctions between quotas, outright preferences for poorly qualified persons, goals and other forms of affirmative action have been disregarded or smudged...

...The affirmative action program embod­ied in that decree was challenged by three unions which charged that the agreement violated some of their members' cherished seniority rights, won in collective bargaining and incorporated in their contracts with AT&T...

...We have never approved preferential classifica­tions in the absence of proved con­stitutional or statutory violations...

...And what, if anything, does the decision portend for the Jews of America, who have been among the most interested in the issues of quotas and affirmative action...

...In fact, that is essentially what happened, at least to some degree, at the Davis Medi­cal School, though that school went much further than Powell could approve by openly conferring pref­erences on blacks, Chicanos, Asians, and American Indians only, under a fixed two-track sys­tem with lower standards for the preferred groups...

...The other quartet disagreed with Powell regarding Bakke's admis­sion, and agreed with him regard­ing the use of race—except that they felt he had not gone nearly far enough in legitimizing racial con­siderations in the admissions proc­ess...

...How the Court may attempt to resolve this appar­ent dilemma should be of surpass­ing interest...

...If achiev­ing group proportionality comes to be seen as a desirable societal goal, this could hardly augur well for the 2.7 percent of the population who identify as Jews...

...in their view, that question was not before the Court...

...If the Supreme Court agrees to review this case, it will confront the prob­lem of how to reconcile two of its prior decisions in job discrimina­tion cases with its decision in Bakke...

...On the other hand, affirmative action can also be a useful weapon in situ­ations where there has been dis­crimination against Jews...

...If, after all, it is important to enroll a representative cross-section of American society, "diversity" could easily spill over into a design for a rough propor­tionality, or what is tantamount to "quotaism...

...It depends...

...The problem with Justice Pow­ell's approval of the objective of "diversity," which is perhaps appealing on its face, is that it can so readily be misused to grant de facto preferences to applicants whose capabilities, as measured by A good many of those in the pro-Bakke camp were and are "closet" racists...

...It is also true, however, that a sub-reason for this condition is that too few black pupils and stu­dents have studied hard enough to overcome their deprivation...

...William Shockley that blacks, on the whole, are inherently inferior to whites in intelligence and nothing can or should be done about this...

...In the 1971 case of Griggs v. Duke Power Company, the Supreme Court unanimously con­strued Title VII to mean that "dis­criminatory preference for any group, minority or majority, is pre­cisely and only what Congress has proscribed," and that Congress had made job qualification "the con­trolling factor, so that race, relig­ion, nationality and sex become irrelevant...

...Each of these four wrote a separate opinion—as did also Justice Stevens (joined in his by Burger, Stewart and Rehnquist...

...The Congress/Committee brief urged, moreover, that medical schools evaluate college grades and aptitude test scores in the light of a candidate's background: whether he or she came from a culturally impoverished home, the nature and quality of schools attended, lead­ership ability and evidence of high motivation such as volunteer work among the sick or underprivileged...

...In their meanness of spirit, they are inclined to blame the vic­tims for their plight and to begrudge them any compensatory or remedial help whatever to enable them to overcome their gen­uine handicaps...

...He seeks caution here: "Ethnic diversity .. . is only one element in a range of factors a university may properly consider in attaining the goal of a heterogeneous student body...

...While the Court's refusal to disturb the ruling in the AT&T case does not establish any firm legal precedent, it does indi­cate that the Justices are not dis­posed to reject far-reaching affirmative action plans, even though they may entail some cost to white males, in employment sit­ uations where there has been evi­dence of past discrimination...

...Justice Powell takes sharp excep­tion...

...He specifically mentioned that admis­sion of an Italian-American appli­cant, for example, might be deemed to help an institution achieve that objective...

...In fact, the Gallup Poll taken in March 1977 revealed that 64 per­cent of even non-white participants in the survey expressed opposition to preferential treatment in higher education and employment for minority group members and favored use of ability criteria as measured by tests, notwithstanding past discrimination...

...By way of illus­tration, among the affirmative action measures endorsed by the American Jewish Congress and the American Jewish Committee (together with six white ethnic organizations) in their amicus brief were: expanded recruitment, reme­dial programs for disadvantaged students at all levels of the educa­tional process, as well as a "plus" factor for disadvantaged medical school applicants who have demon­strated the capability of over­coming the handicaps of racial dis­crimination or poverty...

...A few years ago, in the job dis­crimination suit of NAA CP v. Imperial Irrigation District, a Fed­eral judge in California approved a Consent Decree which required the employer not merely to hire and promote blacks and Chicanos at all job levels in proportion to their numbers in the general population of the county, but also all other racial and ethnic groups in its employ in proportion to their num­bers in the county population...

...Thomas Sowell that the message of quotas "loud and clear, is that black people just don't have it," that quotas signal "incompetence, and black achievement becomes synon­ymous with charity or payoffs...

...He argues that the denial to Bakke of his "right to individ­ualized consideration without regard to his race is the principal evil o f the Davis program, and chides his brethren in the pro-quota camp for ignoring that denial entirely in their opinion...

...Many affirmative action programs are sound enough in concept and fair enough in prac­tice to warrant strong endorsement, particularly those that include a training component...

...Yet in Bakke, five of the Justices agreed that race may be a "plus" factor, even in situa­tions where there is no prior history of discrimination...

...others will think it a wholly inadequate response to the continuing problem of discrimina­tion...

...A professional school might reasonably conclude, for instance, that it has too many stu­dents from the northeastern part of the country and needs more Idaho farm boys or Appalachian coal miners' daughters to improve its geographic mix...

...In finding for Bakke, Powell places great emphasis on the Equal Protection Clause of the Fourteenth Amendment...

...BAKKE'S IMPLICATION SAMUEL RABINOVE No recent decision of the United States Supreme Court has been so eagerly awaited as was the decision in the Bakke case...

...He stresses repeatedly that this consti­tutional protection is guaranteed to all individuals regardless of racial or ethnic origin...

...To convince such per­sons that they are in error is not easy...

...This hap­pened recently in Philadelphia as a result of a complaint filed by the American Jewish Committee against the Provident Mutual Life Insurance Company, which was required by the Pennsylvania Human Relations Commission to seek to meet reasonable goals and timetables for hiring and promo­tion of Jews...

...The danger was dramatically demonstrated by an episode last November, when New York state Senator John Calandra complained that while Italian-Americans com­prise 25 percent of the City Univer­sity student body, they hold only four percent of the faculty posts...

...And none, once rendered, has left quite as much confusion and controversy in its wake...

...Yet, under Justice Powell's criterion of diversity, professional schools in effect are encouraged to enroll such an applicant to promote racial diversity...

...Under the criteria urged in this brief, the hypothetical son of black Secretary of the Army Clifford Alexander, for example, himself a graduate of Fieldston, Harvard College and Yale Law School, would not receive any special con­sideration based on race...

...For another, there is no question that the overwhelming majority of the American people are opposed to quotas and to any absolute prefer­ence based on race or ethnicity, as being antithetical to equal opportu­nity...

...So long as remedial action does not violate the Fourteenth Amendment, preferential treat­ ment of racial minorities is accept­ able...

...Both Griggs and McDonald, therefore, tended to uphold color blindness under the Civil Rights Act...

...Some are of the same ideological bent as those who, for so many years, accepted with equanimity, if not approval, the pervasive rejection and exclusion of people of color from everything good in American society...

...where there has been no finding of past discrimination on the part of the institution involved...

...let color blindness become myopia which masks the reality that many 'cre­ated equal' have been treated within our lifetimes as inferior both by the law and by their fellow citi­zens...

...The two quartets dis­agreed sharply with each other, and there was considerable diversity in the approach to their position of the group (Brennan, White, Mar­shall and Blackmun) who endorsed the use of race in admissions pro­grams...

...H. L. Mencken is reputed to have said that there are some problems for which there are solutions that are simple, easy—and wrong...

...The plaintiff had charged that the scheme discriminated against him as a white under Title VII of the Civil Rights Act of 1964...

...How to help all the disadvantaged to actualize their full potentialities and to take their rightful places within the mainstream of American society is a complicated problem indeed...

...Now that the Court has struck down quotas where past discrimi­nation has not been proved, should Jews continue to be troubled or ambivalent (as so many have been) about affirmative action in general...

...Similar judgments have been made by universities in the past, to the detriment of New York Jews...

...But five Justices cited with approval the Harvard College Admissions Program, which in fact reflects what many other universities have been doing—and are likely, therefore, to continue to do...

...The basic reasons why there are too few qualified black medical school applicants, of course, are to be found in the total historical and cultural experience of the black people...

...There are numerous cases now pending in lower courts which challenge the validity of various forms of affirmative action in employment and business on the ground that they discriminate against whites...

...At the same time, the judgment reversed the California Supreme Court ruling to the extent that that Court had barred the Medical School from giving any consideration to race in its admissions process...

...An admissions program such as that in question at Davis, one "focused solely on ethnic diver­sity, would hinder rather than fur­ther attainment of genuine diver­sity...

...It is the Court's "settled practice .. . to avoid the decision of a constitutional issue if the case can be fairly decided on a statutory ground...

...But some things are clear...

...At the same time, however, he holds that race may be taken into account in the admissions process, since educational diversity is a valid educational objective, and since the use of race as one factor (among others) helps to promote diversity...

...John Z. Bowers stated: "Enough qualified minority group applicants are simply not available...

...And in McDonald v. Santa Fe Trail Transportation Com­pany in 1976 the Court, again unan­imously, ruled that Title VII pro­tects whites on the same basis as it protects blacks...

...In sum, the brief stressed the importance of considering the total life experience of each individual applicant in order to assess accu­rately the applicant's merits, speci­fying most of the very same criteria set forth by Justice Powell in the course of his endorsement of con­sideration of race as one factor which properly may be considered by a college or university...

...This tends to make affirmative action appear odious...

...As any number of commen­tators have already pointed out, the one virtually certain result of the Bakke decision will be a substantial increase in the amount of litigation in the months and years ahead...

...What did the Court say—or try to say...

...Insufficient study may be explainable in part in terms of disproportionate numbers of severely troubled black home situa­tions and consequent demoraliza­tion of so many young people who have to struggle just to survive...

...As announced by Justice Powell, the judgment affirmed the decision of the Califor­nia Supreme Court to the extent that it held the special admissions program at the Medical School of the University of California at Davis to be unlawful and directed that Allan Bakke be admitted to the Medical School...

...The target date for achieving this af­firmative action program is January 1, 1984...

...In the case of Weber v. Kaiser Aluminum and Steel Company, a U.S...

...Some will think this merely an excuse for preferential treatment, masquerading as ethnic diversity...

...Cer­tainly that was the posture adopted by the major Jewish organizations in the friend-of-the-court briefs they filed in the Supreme Court on the side of Bakke...

...Carried to a logical extreme, it is that kind of approach that could again restrict opportu­nities for Jewish students, who reside disproportionately in the northeast and who are rarely found on farms or in coal mines...

...Accordingly, this group is silent on the question of whether race can be used at all, even in a limited way, as a factor in the admissions process...

...But it is important to acknowledge that it is a reality and then to do some­thing constructive about it, in order for the necessary remedial efforts to be effective...

...But the upshot is most likely to be a system very much like that we have come to know, a system which has caused some dislocation for individual Jews and other whites, but has not led to dispro­portionate penalty to any one group...

...On that basis, this group upholds the racial and ethnic quota scheme employed by Davis...

...In the opinion written by Justice Stevens, he and the three Justices who joined with him argued for Bakke's admission on narrower grounds...

...The Brennan opinion, in which White, Marshall and Blackmun joined, rejected the Powell conclu­ sion that the special admissions program at Davis is unconstitu­tional...

...On the day after the Supreme Court rendered its decision in Bakke, while some black leaders reacted guardedly and others even found reason for encouragement, the influential black weekly, the New York Amsterdam News, head­lined the event as follows: "Bakke: We lose...

...Some Jewish employees, of course, may well be hurt by the implementation of such plans...

...almost any yardstick, are substan­tially below those of others who are rejected because they do not pro­mote diversity...

...Charles E. Odegaard, published in 1977, Dr...

...The implications of the decision for Jews in employment situations are considerably less clear...

...Still, it may well be main­tained that the Court's rejection of quotas at Davis Medical School, in the long run, will advance the interests of black people further than if the Court had upheld such quotas...

...But Justice Powell, of course, was not thinking merely of geo­graphic diversity "to promote ben­eficial educational pluralism...

...In a significant ruling on July 3, the Supreme Court without any recorded dissent declined to review (and thereby let stand) a U.S...

...Otherwise I'll fight their budget in Albany...

...In a different context (namely, the Court decisions on the death penalty) Chief Justice Burger recently commented, "The signals from this Court have not always been easy to decipher...

...As for the Bakke decision, perhaps future Supreme Court rulings will more clearly reveal its contours and its full implications for Jews, as well as for everyone else...

...The brief filed by the Anti-Defamation League, Jewish Labor Committee and National Jewish Commission on Law and Public Affairs, sup­ported, among other things, "experimentation with nondiscrim­inatory approaches to University admissions that will afford the dis­advantaged in our society better access to a higher education and the professions...

...For one thing, there is much truth in the argument of black economist Dr...

...Every other ethnic group starts yelling about quotas," he said, "I want the Italo-Americans to get what everybody else has...

...Still others point out that, in con­trast to the relatively low average achievement levels of black stu­dents, Asian Americans have dem­onstrated high upward academic mobility, that children and grand­children of Chinese and Japanese immigrants, almost all of whom came here in dire poverty, who faced an acute language barrier as well as pervasive exclusion and dis­crimination on the part of the dom­inant white society, nevertheless have managed to compete success­fully with whites in very substantial numbers for openings in medical and other professional schools...

...One may imag­ine what they might have said, but what they actually said was noth­ing...

...The paper then pro­ceeded to analyze the impact of the decision, concluding that it "also has jeopardized every affirmative action program in the country, not only in colleges and graduate schools, but also in private business and industry," and went on to say that the fact that "blacks have now lost the case may further divide blacks from Jews at the national and local levels...

...In responding to this type of argument it is necessary to stress, as Justice Marshall did in his eloquent opin­ion in Bakke, that no other ethnic group in this country was enslaved, with the multiple afflictions that that has meant for the descendants of the enslaved...