The Nation's Pulse / Bakke: America's Oldest Medical Student
Rusthoven, Peter J.
"The Nation's Pulse / Bakke: America's Oldest Medical Student" the crowd (estimated at 600) in 'Happy Birthday, HEW, Happy Birthday To You.' " Congressmen and Senators responsible for funding HEW came down from the Hill and joined in the fun and games. Rep....
...At times, however, the Court's reluctance squarely to confront an extraordinarily controversial case produces a confusing and somewhat expedient decision which straddles the critical issue involved, when a forthright and straightforward resolution would have been more appropriate...
...Their statement quoted above, linking "disparate racial impact" with "past discrimination," is the nub of the contention...
...In fact, however, the second inquiry does not amount to much, since it is an article of faith among proponents of reverse discrimination that so-called "disparate racial impact" can only —or perhaps more accurately, may only—be explained ' as a result of "past discrimination...
...But some consideration of race, as one factor among others, was permissible for the purpose of encouraging diversity...
...In a curious decision reached by overlapping majorities, the Supreme Court held that rigid numerical quotas such as those used by the medical school at the University of California at Davis were impermissible, but that some form of special consideration to minorities based on race was permissible...
...Since the Stevens group of Justices believed that the California-Davis system was simply illegal under the 1964 Civil Rights Act, and refused to address the broader constitutional issue, they joined with Justice Powell to make a majority of five in holding that rigid numerical quotas were impermissible...
...David Obey of Wisconsin played the harmonica...
...The statutory language provided that "no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...
...It is, if anything, a feature of systems which are the antithesis of one rooted in concepts of individual freedom and responsibility...
...Others, the saxophone, trumpet, and trombone...
...Believing that the case could be decided under the 1964 Civil Rights Act's prohibition of race discrimination by institutions receiving federal funds, they declined to address the constitutional issue...
...But far more disturbing is the Court's failure straightforwardly to confront and resolve the truly critical question presented by the case...
...This June's decision in Re,gents of the University of California v. Bakke—which involved the legality of so-called "reverse" racial discrimination—is an unfortunate example...
...Though their argument is a faulty one, Justices Brennan, White, Marshall, and Blackmun at least stated unequivocally the basic argument for reverse discrimination...
...In our constitutional moral order, there are few principles which have deeper roots throughout the community, or greater continuity over significant periods of time, than the belief in freedom of opportunity for individuals, irrespective of race or background...
...But I'm not critical of it, and we in Congress are not critical of it, because we know that you have become the people's agency...
...In our particular time and place, the painful legacies of slavery and discrimination against blacks unquestionably provide considerable pressure in favor of a pragmatic political judgment which would endorse some form of reverse discrimination...
...If the numbers do not conform to a specific set of expectations as to what a "good" or "proper" racial breakdown would be, one moves to the second question, which is whether there is "reason to believe that the disparate impact is itself the product of past discrimination...
...In practice, therefore, the only showing needed to justify reverse discrimination under this school of thought involves whether the numbers come out right...
...Today we are 145,000 federal employees and we pay the salaries of another 980,000 state, local and private employees...
...Well, it was a little difficult to get that figure...
...This is not a misprint...
...Weekdays...
...The first, from the late Alexander M. Bickel's extraordinarily perceptive work, The Morality of Consent, aptly captures the fundamental inconsistency of the argument advanced by proponents of reverse discrimination: The lesson of great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society...
...While he expressly rejected the argument that racial preferences for minorities were permissible simply due to past discrimination, he believed such preferences could be used to further the university's interest in having a "diverse" student body...
...Ironically, the second quotation cited by Justice Powell comes from the writings of Archibald Cox, who argued the case for affirmative action in Bakke...
...In this case, California-Davis, "through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race...
...In the words of Justice Marshall's individual- opinion, the contrary position would substitute "abstract equality" for "genuine equality...
...As stated in the critical paragraph of their 24 The American Spectator August/September 1978 joint opinion, "a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large...
...as the arbiter of last resort than a recognition of the heavy burdens that responsibility entails...
...The question to them was straightforward...
...He introduced the legislators to the assembled party-going HEW employees: "Senator Brooke—" (applause), "Senator Javits—" (applause), "Senator Randolph—" (applause...
...How many people are paid out of the federal till...
...By Professor Cox's own well-stated formula, however, the former should have prevailed more decisively over the latter in Bakke...
...In that case, the Supreme Court was able to avoid a decision on the merits: Since one of the lower courts had ordered that DeFunis be admitted to the University of Washington law school, and since he was in his last semester and about to graduate by thetime the case had been briefed and argued in the Supreme Court, the Court held that the case was moot and refused to issue a substantive ruling on the legality of reverse discrimination...
...This year, in the Bakke case, no such easy out was available...
...Often, therefore, the Supreme Court's hesitancy when faced with such issues is to be commended: It reflects less a shirking of the Court's constitutional responsibility Peter J. Rusthoven is an Indianapolis attorney...
...The American Spectator August/September 1978 25...
...As a consequence, the future impact of the Bakke case—particularly, perhaps, in situations which do not involve the issues of academic freedom that Justice Powell found so important—is extremely unclear...
...Although he emphasized that any race discrimination was inherently suspect under the Constitution, alone among the Justices he noted a countervailing constitutional issue—academic freedom, which he described as being among the concerns of the First Amendment...
...In his view, the 1964 Civil Rights Act and the Equal Protection Clause were inextricably linked...
...Rigid quotas, however, were unnecessary to achieve this goal, and therefore unjustified, particularly since they absolutely excluded non-minority applicants such as Mr...
...The question whether preferences based on race may legally be given to members of minority groups, so long as the purposes be "benign," had first reached the Court in 1974 in DeFunis v. Odegaard...
...Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored...
...The key lies in the phrase "disparate racial impact," which makes the numerical racial breakdown resulting from a particular state action the critical initial inquiry...
...John Brademas of Indiana—another lawmaker who both initiates and subsequently benefits in his district from HEW appropriations...
...I often thought that within any organization such as this that it's awfully nice to have your banker up for coffee and doughnuts once in a while...
...As far as I know, these figures have not appeared anywhere outside the Congressional Record, in which the "Proceedings of the Opening Ceremony and Presentation by the Honorable Joseph Califano" were published, with no sign of embarrassment, at the behest of Rep...
...Uncertainty of this sort, though hardly unprecedented in the annals of the Court, is of course one unfortunate aspect of the Bakke decision...
...The "principle," if indeed it can be described as one, is equality of result, not equality of opportunity...
...Bakke from consideration for a defined number of slots...
...But it's no wonder that you have the big complex organization you have now...because since the beginning tremendous responsibility has been placed on this Department, much of it from the courts of the United States and a lot of it from Congress....I asked the Secretary one time, when he first took office, how many people are employed in HEW...
...Califano said in his speech: "In 1954 we were 35,000 federal employees...
...Then he got down to the serious business of ensuring that there would be no let-up in this multiplication of spending money...
...With his eight fellow Justices evenly divided, Justice Powell's opinion proved decisive...
...Rusthoven Bakke: America's Oldest Medical Student With periodic exceptions (most notably the crusading impulses too often indulged during the era of Chief Justice Earl Warren), the Supreme Court has usually approached with marked reluctance issues that are the focus of sharp and emotion-laden controversy in the body politic...
...Finally he came up with it...
...When a case also involves a widespread and potentially divisive conflict in the population at large, there is further danger that any decision by the Court will be perceived as result-oriented and political rather than as a principled judgment...
...So-called "genuine equality"—a neologism designed to make more palatable the philosophy that everyone should be substantively equal in wealth, prestige, or what have you—was the farthest thing from the Framers' mind...
...Therefore, under "the plain language of the statute," the admissions program was, in their view, unlawful...
...This unusual mix of opinions yielded a curious result unsupported by any consistent or cohesive rationale...
...While one may sympathize, as noted earlier, with the Justices' reluctance when confronted with the emotional and divisive controversy of reverse discrimination, the fundamental issue of principle implicated by that controversy is one which deserved to be addressed...
...Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution...
...Quite simply, what Justice Marshall lightly dismisses as "abstract equality" is in fact the distinguishing feature of the secular morality upon which this nation was founded...
...Now," Califano continued, "I would like to ask Senator Magnuson, who chairs our Appropriations Committee in the Senate, and has worked hard to fund somany of these programs over so many years and who was here at the creation, if he would say a few words on behalf of the Senate...
...HEW now employs 1,144,000 people.* That's bigger than the Army, I think, or the Navy...
...THE NATION'S PULSE by PeterJ...
...In any matter of import, there is danger that too swift and too certain an adjudication will decide for all time—and perhaps wrongly—an issue whose final resolution is better left for another day...
...Applause...
...That growth, thrust upon us by the Congress and the American people, has created a more just and caring society...
...Abstract equality" —equality of opportunity among free and responsible individuals—is just what the Framers of our Constitution were at pains to preserve...
...Secretary...
...This philosophy, which lies at the heart of the entire push for affirmative action, is precisely what should have been rejected by the Court...
...In The Role of the Supreme Court in American Government, published in 1976, Cox notes that the Court's role in constitutional cases is to discern "principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of pragmatic political judgments of a particular time and place...
...Though the different opinions issued by various members of the Court are both lengthy and complex, the essential viewpoints expressed are fairly easily described...
...Four Justices—Brennan, White, Marshall, and Blackmun—concluded that quotas and less direct expressions of preference for minorities based on race were perfectly permissible, under both the 1964 Civil Rights Act and the Constitution...
...However, since the Brennan group of Justices believed that both quotas and other forms of affirmative action were justifiable, they joined with Justice Powellto make a different majority of five which condoned some consideration of race in the admissions process...
...Those for whom racial equality was demanded are to be more equal than others...
...Secretary Califano spoke, noting proudly that HEW's budget had increased 26-fold in 25 years...
...The party lasted for two days...
...Justice Powell, in the course of reaching his curious and somewhat murky compromise, cites two quotations which should have brought this point home to the Court...
...Now, it's nice of you to ask us here today, Mr...
...Justice Stevens, joined by Chief Justice Burger and Justices Stewart and Rehnquist, took a sharply different tack...
...We started out very small," Senator Magnuson said...
Vol. 11 • August 1978 • No. 9
