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CaliforniaSupreme Court, which handed down · a decision
totally in favor of Bakke. Bakke was admitted to the School
and is there nQw as a student. The Regents, despite the fact
that legal counsel had informed them that they did not have .a
· favorable case to take to the Supreme Coun and that it .would
· be better to' 'w:ait to test ' ' a more-well-conceived admissions
program than that of the Davis Medical School, decided to
appeal anyway . Had the y not appealed, Bakke would have
been in the School (where he is anyway) and the School
would have had to revise its Admissions progra m. Instead,
the Regents put the entire University's admission program
(and by inference, the programs of every college .and
university operating with state or federal funding ) on the line
before a reactionary Supreme Court , 4/9ths of which were
Nixon appointees , with a weak case and upon the basis of a
sketch y and incomplete trial record.
BAKKE: TIIE NEWEST RAQST A TI ACK
Helene Burgess
California State University at Sacramento
&cJwr,11tld
Allan Bakke is a white engineer in his 30's, who in 1973
and '74 applied for admission to the medical school of the
University of California, Davis campus. 1-Ie was denied admission ·in both years . lie was also ~ed
admiwon to 12
other medical schools to which he has applied in 1973. Upon
the suggestion of a U .C. Davis admissions officer' Peter
· Storandt (1), Bakke took his setback to the courts, filing suit
against the Regents of the University of California in order to
obtain admission by court order. On what grounds could a
court order the qualified professionals of ~e Medical School
to admit an applicant they had twice rejected? Bakke' s
lawyers contended that he was a victim of racial discrimination, -that is. he was discriminated against because he was
Origins of th e Bakke Decision
As behaviorists we must review and examine· the forces
giving rise to the condi,tions which. now threaten to
terminate the gains made in the Civil Rights Act of 1964 and
the historic Brown v . Board of F.ducation rulings of the
Warren Court.
The slogan ' 'reverse discriminat ion ' ' could not have
taken hold until now ..During the 1960's 311dearly ' 70 ' s the
combination of mass popular pressure and surging .economic
growth potential combined to produc e concessions from
government and industry . These concessions were translatable as legislation providing increased benefits for mino rity
and white workers and litigation to assure minorities of equal
rights and opportunities. Because capitalism was in an
expansionist moment , it could be pushed int o absorbing
hitheno disenfranchised minorities into its system. When
the economic slowdown of the middle '70's occurred ,
however , the tide in favor of progressive programs ebbed.
The economic recession of the 1970's had led to a reverse
in the gains of the '60 's, In an effort to secure shrinking
profits, capital ists have forced tht slowdown of poverty
programs , housing construction, and free-lunch programs ,
to name but three. In January, 1977, the Supreme Coun
held that minori ties could be kept out of a proposed
Arlington Heigh ts., Illinois housing complex because the
regu lations passed by City Officials to achieve that purpose
did not do so " directly " or "intentionally " but merely
happened to have a discriminatory ' 'effect' ' upon minorities.
The notion that discrimination is not discrimin ation unless
one can prove ' 'intent' ' to discriminate has also beenused to
keep workers from maintaining their seniority when they are
promoted within the same company , unless it can be proven
tha t the company intended to discriminate against them in
their original job classification. Contrast these two rulings
with the progressive actions which sought to use racial
classifications to remedy inequality and promote integration
in educational settings. In San Francisco Unified School Dist .
v. Johnson (1971) the California Supreme Court concluded
that • • . . . the racial classification involved in effective
integration of public schools does nqt deny , but secures , the
equal protection of the laws.' f (4) (p. 69) . The United States
Supreme Court concurred in a similar case Swann v. Board of
F.duc~ion (1971) . Returning to more recent events we can
see that the ant i-gay campaign and the recent Supreme Court
decision which denies ~bortions to poor women are part of
this reactionary swing.
By far the most dangerous of the reactionary trends is the
-white.
Bakke's reasoning exploited the pseudo-concept of
' 'reverse discrimination '' ; a concept · used by those
interested -in maintaining racial segregation and depriving
racialminorities of economic and $0Cialopportunity. Of the
100 openings for each year's class at
Davis Medical
School
, the oveswhelming majority are and have be.enfilled
by'whites. In 1972, .in order to assure a minimal correction
of the disparity that existed in regard to admissions, the
Admissions Program (SA)
School had created a ~al
which set aside 16 of the 100 seats per yest for disadvantaged
members of minorities. This concewon to social -equality in
no way meant that white students were t o be bumped from
their pPSition of absolute ma~ty
in the School's
enrollment, and in fact, the proportion of 16 out of 100 did
~ even equal the proportion of racial minorities to whites in
California. (2). In fact, there are greater numbers of whites
enrolled in medical schools today than before the special admissions programs. For the ~i<;
year 1970- 71 there
were 693 whites enrolled in California medical :,chools. In
1975-6, due to the grdwth in the number c,f available spaces
coupled with the limited scope of special admissions
programs , there were 797 whites enrolled (3). The feature
of the Special Admissions Program that made it susceptible
to attack by Bakkl was one of its most imponant
chatact-eristics : the disadvantaged minority student could
obtain an interview which was part of the admission process,
even though his or her grades were below the cutoff used to
eliminate non-disadvantiged whites and minorities from
further consideration.
The trial coun accepted B~e's
argument that he was
being discriminated again$t on the basis of his race . Since he
had obtained grades and scores on the MCA T (Medical
College Admissions Te!!t) that were higher than some of the
SA students admitted, so the reasoning went. he had been
tbf' victim of racial discrimination . The court did not
concern itself with the fact that many white students who
were admitted hadalso obtained lower grades and scores than
Bakke, andBakke's supposed " adv~e.s ", the Regents,
never made much of a point of the fact either at trial or on
the
appeal.
1be trial court held, however, that Bakkewas not entitled
to admission because he would not have been admitted
anyway, that is, he may have been discriminated against as a
white , but the discrimination had no effect upon his
admismon
. B,>tl Bakke and the Regents appealed to the
16
resurgence of racism. Of course, racism in this country
never went away , but it was temporarily suppressed through
popular struggles . The Bakke decision, however, is particularly insidious because it *reatens to completely legalize inequality. If the Supreme Court votes in favor of Bakke,
efforts to remedy the effects of past discrimination will be
labeled '' racial quotas '' or ''reverse discrimination'' and
'
thereby be declared-illegal.
Court rules against UC it will lose nothing. The special
admissions program was implemented only after mtense
pressure from minoriues . Further, the program costs time
and mone y to maintain. More importantly, however, it
reduces alumni contributions because special admis'sions
students do not come from wealthy or influential backgrounds. UC had everything to gain and nothing to ose by
losing the case.
The Regents' behavior should not be a surprise to behaviorists . The Regents (as well as the rest ·of us) have world
outlooks ·that are ·completely formed by the contingellcit5
under which they live, and these contingencies ate class
based. The Regents can't understand the need for minority
pl1ysicians because they have never lived in situations where
they have been unable to obtain medical care. They have not
been treated badly by physicians because of their race . They
!ife unable to view the privledged white adrnittee s as beneficiaries of past discrimination. The Regents probably have
no "self-awareness' ' of their practice of individual and institutional racism. Likewise, they do not see a law as biased
when that law can appearto be neutral but is actually perpetuating racism, sexism, and anti-working-class practices.
The Regents have been conditioned to view the world from
their own narrow class interests.
Role of the UC Re.gents
The role played by the UC Regents may be a predictor of
the stand that other academic administrations will take.
Bakke filed his suit against the University; however, it was a
university admissions officer who suggested to him th at he
file the suit on the grounds of racial discrimination. When
UC lost at the trial and appellate court levels, various
minori ty organizations requested UC not to · ·appeal to the
Supreme Cou rt because they believed that UC was more
inte rested in getting a final decision than in winning the case.
The Regents refused this request. (5)
The National Committee to Overturn the Bakke Decision
lists further how it feels UC sabotaged its own case:
1. The Regent s failed to introduce testimony reagarding
UC's long history of past discrimination ; thus, they
could not argue that UC was attempting to remedy past
discriminatory pract ices. Yet , in 1972-3 the federal
government found pervasive discrimina tion against
women and ethnics in university employment on at least
three separate occasions.
2 . UC failed to challenge the Medical College Admissions
Test (MCA T) even though the test has been shown to
be useless as a predictor of actual performance as a physician .
3. UC refused to hire minority counsel when requested to
do so by minority organizatio ns .
4. UC made an inadequate effort at the trial court level. It
offered only one witness who did not even testify before
th e judge. It did not offer testimony by students and
minori ties, the ones who would be primarily affected by
the decision.
5. UC 's only witness, Dean George Lowrey, falsely stated
tha t only minority applicants were considered for the
'' special admissions program'' when in fact white students had been interviewed and considered. Lowrey's
false,statement validated Bakke' s claim that the program
intentionally discriminated against whites.
6 . UC could have challenged Bakke's legal right to sue
since it could be argued that other factors were the primary reason for Bakke's rejection.
On the whole, the Regents showed little interest in
winning their suit. Frank Ochoa, an attorn'ey who helped
prepare a brief to the Supreme Court in opposition to Bakke,
believes that UC attorneys acted to cover up a special
admissions procedure which enabled the dean of the medical
school, C. John Tupper to appoint five persons a year from
the 100 slots. In 1973, one of the years that Bakke applied,
Dean Tupper admitted a student who had not even filed an
application. The student was the son of a state assemblyman .
Dean Tupper also admitted four other white applicants who
ranked lower than Bakke. It is possible that Bakke was kept
out because of Dean Topper's preferential appointments,
UC was not in a position to give a strong defense of its special
admissions program.
UC was not the real ''party-in-interest '' . If the Supreme
The Question of Qualifications
Part of the self-justification offered by oppressors is to hold
the victim responsible for that oppression. Thus., minority
individuals in our society have become both victim and
scapegoat. The justification for the oppression of minorities
in education is subtle. Inadequate representation of
minorities and women as faculty members and as students in
graduate and professional programs i attributed to an
inability to compete intellectually in such situations . This
supposed inability is seen as innate : if you let those
"inferiors" into your program, the program will be contaminated and the '' quality of education'' will suffer.
Educators, journalists, and government officials never
complained about a '' quota system'' which reserved 84 of
100 slots for the overpriviledged elite because these are the
supposed superior people to whom all good things must
naturally flow. Let 16 out of 100 slots be reserved for disadvantaged minorities and the hue and cry of '' racial quota''
and " reverse discrimination" find fuel from arguments
about the quality of education.
Is there a basis for saying that the people admitted under
the UC Davis special admissions program were less qualified
than Bakke? Unequivocally no. First, it is necessary to
compar e the admissions procedures under the regular and
special admissions programs. An applicant for admission to
UC Davis Medical School is required to take the Medical
College Admissions Test (MCA1) which measures performance in four areas : verbal, quantitative, science, and
general information. The MCA T test score , extracurricular
and community activities , work history, and pe,sonal
comments are included in the applicant's dossier. In addition,
the applicant must submit two letters of recommendation
and various academic transcripts .
There were two admissions committees. The regular
admissions committee consisted of 14 or 15 faculty andan
equal number of students, all selected by the deand. the
medical college . The special admissions committee was
comprised of minority students and minority and nonminori ty faculty. All applicant !-were screened and those not
found or claiming to be disadvanta ged were handled by the
17
and the over.representation of physicians in certain desirable
urban centers.
Minority communities have among the worst physicianto-population ratios ~ .£ according to Jerome Lackner,
Director of the Department of Health of the State of
California and Marion Woods, Director of the Department
of Benefit Payments of the State of alifornia in their amicus
brief. Their data show that in the Los Angele s area the
physician-population ratio for chicano areas averages
1 :4463, for black areas it averages 1 :2905 , and for white
areas it is 1 :793 for Van Nuys to 1 :1 62 for Beverly Hills.
(8). In addition, although poor health correlates positively
with income, minorities receive less health care than whites
regardless of income .
Few people questioned the right of UC to give preference
to applicants stating an intent to practice in rural California.
However, when UC gave preference to applicants who had
stated an intention to practice in minority communi ties , the
racists again yelled, we
harming the "quality of educ;~tion' '. The fact is, most minority physicians and dentists
practice in minority communiti es, while few of the white
physicians practice in these communities (9,10). This fact
was never mentioned by UC .
The arguments against the special admissions program
cannot be based on empty speculation about "qualifi cations'' , or the so-call~ '' quality of education ' ' . No
evidence shows that the quality of the practicing physician is
better or worse for the special as compared to the regular
admittee. Further , if we consider the population that is
served by th ese physicians, then certainly the special
admissions program is responsible for placing medical practitioners in areas where there would be few if any at all.
regular admiss.ions program.Evaluation of the two applicant
pools was done independently; then all candidates, both
regular and special, were given final approval by the regular
admiMions
committee.
- Member$
" the regular admissions c;ommittee screened
the regular admis.1ionscandidates and decided which
candi.dat~to interview on the basis of their dossiers .
Students with. .1 grade point average below 2.5 were automatically rejected (except for Dean Topper's super-special
admissions). One faculty member and after 1973 , one
student and one faculty member interviewed the candidate
and evaluated the candidate on a scale of Oto 100. Four other
committee members reviewed the candidate's file, without
knowing the interviewers' ratings, and ~ted the applicant on
the same scale. The five reviews were combined to produce a
nwnerical total. In 1973 the highest scoreone could receive
was 500. This numerical rating is basedon : information in
the application, letters of recommendation, interview
summary, MCAT scores, grade point average, and "consideration·Of motivation, character . imagination, type and
locale of the practice the applicant intends on entering in the
future." 7(p42)
The chair of the special admissions committee screened
applications from those of disadvantaged backgrounds. The
special committee then decided which applicants to
interview . The same criteria as in regular admissions were
used; howev~, applicants belowthe 2., grade point average
were not automatically
disqualified from further
consideration. The special committee prepaml a written
summary of the qualifications of the applicants and the
regu}Jr committee made the final determinations . Thus, all
candidates wer~ judged qualified by the regular admissions
~~In 1973, the year on which Bakke based his case, he
received a combined numerical rating of 468 out of a possible
~. In that ume year 3, other applicants received ratings of
468 and 469. A score of 470 or higher a5$uredadmission .
The dean decidedamong candidates sharing 469 and 468
ratings as to who would be moved up to fill openings. In
addition, the dean reserved five of the 100 slots for his
appointments.
Of the canclidates
who finally wound up at first year
students, about halfof both the re~
and special admittees
had final numerical ratings higher than Bakke' s 468. Does
this mean that all of the ttgU1aradmissions candidates who
scoted lower than Bakke w«e qualified?When we discuss
white applicants who scored lower than Bakke, we don't
think of them as unqnalified.When minority appliamts who
sand lowt- than Bakke are clisamed, however people
U'JJD'M'fflately
jump to oooclusions about qnalificarioos.
Bakke's argument about discrimination therebe turns on a
aomewbatsubtle point. SinceI wasso clme to beiJ>8
admitted,
argued Bakke, the 16 sJoo reserved for minorities deprived
me of an opportunity to make it into the school as one of
those 16 admitt.ees; it doesn't matter that I lost out to 84
others .
It is the rapoosibility of the medical school to tum out
qnalifwdr_ctical
pra:tioners.Surely , the UC DavisMedical
Scbaolfj:ulty memberswouldnot let students
who were
uncp,alifird oc pmuate. It is also the respoos11rilityof
themedialschoolsto seethattheir graduatespracticein the
area of sreatest
mm.UC Davis gave higherevaluationsto
lf!Picmts who stated• prieft:rence
for practice in rural
NorthernCalifornia
locations.Preference wasacrordedthese
applicantsbecausrol tht paucity of phyiicians in these areas,
are
Who Benefits?
The Bakke decision is an attack on both minorities and
white working people. The Bakke decision threatens to
legalize racial discrimination , but racial discrimination keeps
us divided and misdirects our behavior. For example , a white
worker who feels his or her job is threatened by minority
workers rather than by the boss or ~ation
is never
going to act against t.1teright source; thus his or her salary ,
working conditions, frustration, and alienation will remain
the same or worsen . Likewise,a minority worker who thinks
whites are the enemy will ranain relatively isolated and
powerless .
On the other hand, the contingencies for owners (i.e.
capitalists) are determined by the realities of thei1' own
system of profit and exploitation. If workers are divided ,
black and brown against white, then they compete against
each other and are. not united against the profit -exploitation
system. Trouble . for the boss start$ when worken organii.e.
Organiz.ation causes demands, strikes , slowdowns, bad
publicity , crisis financial planning, and of coune, loss of
profits through reduced production and uicreasedwages.
Far better for the bosses to fight off a segment of the working
class than the entjre working class; better yet to have one
segment of the workers hostile to another segment.
~ is the primary division among workers, and where
social inequality has been at its height, wages and working
conditions have been the poorest. (1 1). Historically , during
economic crisis the authorities have encouraged violent
racial attacks and government repression. For example, in
the 1930's the mobilization of workers in the packing
industries was broken up by drumming up racism against the
workers' leadership and then having those leaders deported .
mm
18
•
!
We can also force people to examine why they believe that an
instrument which measures performance in ·high school
English and mathematics has any ttlation at all to being a
good physician.
As behaviorists we can attack the myth of qualifications
and intelligence. The myth is that qualifications and intelli gence are synonymous, and that intelligenre is a mental
quality which is innately endowedand which combines with
education to make a person more qualified than others to
enter certain occupations.
In reality, qualification means that a person can exhibit
the requisite behaviors which are demanded of him or lier in
an occupation. It is the job of our educational system to
graduate qualified individuals. In contrast. intelligence is a
concept which has no basis apart from the past and present
reinforcement conti.tlgencies which have shaped·· the
individual . Even Albert Einstein -acknowledged ·that his
contribution to science was an. en'Vll'Onmental not ail
individual product. Behaviorists should be the most vocal
opponents of the concept of intelligence. Indeed, we should
work to show how intelligence can be reduced to environ ment, and then specifically show how the environment can
be changed to produce what is now called intelligent
behavior. In addition, we can point to the success of behavior
modification in the classroom to show that academic
performance is a function of academic contingencies .
After we have given our arguments and therefore have
exhausted our attempts to change people's behavior though
formal, i.e. verbal or rule governed, contingencies , we might
try to alter the social environment. Such activities as parti cipating in anti-Bakke demonstrations, demonstr ating
against cutbacks in special admissions , and investigating
admissions and hiring practices at our workplaces are but a
few ways in which people may be brought into anti-Bakke
and anti-racist work.
Similarly, some "ed ucators" have decried the so-called
deterioration of the quality of education by adverting to
lowered academic standards as a result of minority
admissions. Rather than confess that. poorly educated
minorities are the result of an invidious and debased educational system, they find solace and support in "new
theories' ' which purport to show a genetic basis for alleged
racial i,nferiority. Thus, the racist pseudo-scientist Arthur
Jensen is given 'an award by no le~<>
an institution than the
American Association for the Adv :ement of Science. It is
no coincidence that this occurrence took place during the
recent educational cutbacks.
What To Do
A strong united effort by minority and white working
people can stem the current rising ,tide of racism . Although
the final arguments have been given ta the United States
Supreme C'.ourt, its decision, whatever it may be, should not
deter us from anti-racist work. For when economic
conditions worsen, as they are now doing, minorities will be
made scapegoats in this society. When minorities are blamed
for unemployment and assorted social ills, all workers suffer.
As behaviorists we have an important perspective to lend.
to anti-Bakke, and anti-racist work. First, we have a
materialist conception of human behavior . Thus, we are able
to pinpoint the disabling effects of poor education. Most of us
are familiar with the studies which show that minority
children receive less reinforcement from teachers than their
white classmates. Similarly, behaviorists can give the correct
analysis of why children in Harlem have normally
distributed IQ tests scores during their first grade testing ,
but that the distribution skews more and more toward the
lower end as the children progress through the
"educational" system. Behaviorists can show that most
minority students have received some non-reinforcement
and some punishment for their academic endeavors, and that
disadvantaged minority students have received much
punishment and non-reinforcement for their schoolwork.
The results of these contingencies are responsible for the
poor showing by minorities on traditional evaluative techniques; however these evaluative techniques measure exactly
the same behaviors for which minorities have been punished
in the past.
More specifically, behaviorists can demonstrate th e
absurdity of the Medical College Admissions Test (MCAT) .
According to the company which puts out the MCA T it is
no predictor of success as a physician. The Journal of
American Education reiterates this point :
Several investigators have observed that the criteria for
selecting medical applicants correlate poorly with the s~udents' performance in medical school and not at all with
their performance as physicians. In particular, investigators have not been able to predict physician performance
by co~ge grade J?<)int average, ~· _criterion ~tly
emphasized by medical school admissions committees.
(12).
Insofar as they select systematically, such variables as
MCA T and pre-medical GPA indentffi.ed smart,
. achievement-oriented, rather aloof individuals who know
how to get good grades. (13).
Acceptance in medical schools seems to depend on
factors that show little correlation with later performance
as a physician. (14)
Behaviorists can also discuss cultural bias in terms of
reinforcement contingencies, and link this discussion
directly to the MCA T as well as to other standardized tests.
Summary
The slogan of ' 'reverse discrimination ' ' which was given
international attention by the Bakke decision, is just another
way that the people who own the productive processes in this
country have of making whit«:S believ~ that they are being
abused by non-whites. In reality, worsening economic
conditions force high unemployment and cutbacks in
educational and social services in order to secure high (in
some cases record high) profits for industry . The
industrialists cream off the wealth while we fight over leftover change.
Bakke and his lawyers would have us believe that he,
although qualified, was · bumped by unqualified · minority
students. This is false.All admittees were qualified, however
there are many qualified applicants, minority and white,
who are denied admission to Davis and other medical
Even in the face of a physician shortage, few people have
looked into increasing the number of slots for minorities and
whites. It has been estimated that special admissions
programs add only about eight percent to the cost of
operating the school. The U.S. government is spending
much larger amounts to trliin military physicians. (15). In
light of the fact that 24 ·cents of every tax dollargoes to
military and defense industries it seems th-at some of that
money could be diverted into training physicians for critical
shortage areas. Do we really need soldiers more than
doctors?
The Bakke decision is a serious reversal of the civil rights
gains made during the 1960' s. If left unchallenged the Bakke
19
Regents of the Unive.rsity of California v. Bakke? No.
76-811, United States Supreme Court; Brief of
Amici Curiae in Support of Petitioner .
9. . Lieberson, ' 'Et hn ic Groups and the Practice of
Medicin e , " 23 American Sociological Review 524 ,
546 (1958).
10. Amici Brief, as cited at fn. 8
11. Osborn, "Bea t Back the Bakke Decision! , " Medical
Committee for Human Right s News , Vol. 1, No . 4
Ouly 1977) , pp. 9 °15.
12. Freidan et al., "Medical Education and Physician
Behavior : Preparing Physicians for New Ro~es,''
Journal of Medical Education 47 : 163 (1972), cited
in Montoya , The Ir,validity of Tr!Jditiona/ Admi ssions Criteria and the Invalid Logic of Reverse Discriminatiotz Cases: Health Professional Admissions
to Meet Society 's Needs , Testimony to the California
Assembly Permanent Subcommittee on Post-Secondary Ed1:1cation, Mar . 2, 1977.
13. Korman, ' 'Patterns of Success in Medical School and
their Correlates, journal of Medical £:lucation 46 : 405 (1968), cited in Montoya; seefn. 12.
14. Leape et al., ''Peer Evaluation of Applicants to Medical
School, Journal of Medical F:ducation 51-586
(1976), cited in Montoya , fn. 12.
15. Montoya , Invalidity o/T raditiona~Admission s, p. 8.
8.
decisionmay render attempts to remediate effects of past discrimination illegal.While the current status of the Bakke
decisionmakes industry, c:ollege administrators, and the UC
Davis Regents happy, it is certain to result in a net loss for
the rest of USFootnotes
1. Nesbitt, '' Bakke Passed Over for White VIP's" The
'EastBay Voice. Vol. 11, No. 5 (October, 1977), pp.
1-10.
1. According to recent figures of the California Depart ment of · Finance, minorities comprise more than
25% o1 the state's population.
l Greenwalt, "Judicial Squtiny of·~·
Racial Preference in Law ·School Admissions,' 7'5 Columbia
uiwReview 559 , 585 (1975).
4. Bakke v. Regentsof the Univ. of California (1976) 18
Cal. 3<134.
,. P~ph.let. "A Case of Political Collusion," An
Opinion by the National Committee to Overturn the
~e
Decision, P.O. Box 3026, Berkeley,
California
(1977 )..
. .
6. &sy Bay Viiice•. Vol.11, No. 5, as cited at fn. 1.
7. Ibid.
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20