Chapter 16: Diversity, the Bakke Case,
and the Defense of Autonomy
“Even if prejudice magically ceased today, the burden of the past would remain.”
- Evelyn B. Pluhar
By Catherine Cash, MA
Presentation Outline
I. Greater inclusion at the Big Three
II. Affirmative action criticism and debate
III. Case of DeFunis v. University of Washington
IV. Case of Bakke v. University of California
V. Asian-American discrimination
VI. The Big Three between 1990-2002
VII.Class Activity
2
1961 - 1978 Significant Legislation
1961 President Kennedy issues
Executive Order 10925 created
Committee on Equal Opportunity and
required employers to “take affirmative
action” ensure hiring practices and
employment free of discrimination
1964 Civil Rights Act prohibited
discrimination based on race, color,
religion, or national origin within
education and employment settings
June, 1965 Lyndon Johnson gives
famous speech at Howard
University asserts the Civil Rights
Act alone not be enough to remedy
past racial discrimination
September, 1965 Lyndon Johnson
issues Executive Order 11246,
requirements for nondiscriminatory
practices and government contracts
initiate affirmative action policies to
increase the hiring of minorities and
women
History of Affirmative Action Policies
1965 Voting Rights Act outlaws
discriminatory voting practices, such
as literacy tests that prevented poor
African Americans from voting
1967 Thurgood Marshall first
African American justice of the U.S.
Supreme Court
1967 Executive Order 11375
prohibited discrimination on basis of
sex in federal and government
employment settings
1968 Civil Rights Act is signed into
law by President Lyndon Johnson
provided equal housing opportunities
by prohibiting discrimination towards
race, color, religion or national origin
1969 Philadelphia Order initiated by
President Nixon, to guarantee fair
hiring practices for minorities in
construction jobs
1973 US Supreme Court hears
DeFunis vs. University of
Washington race consideration in
admissions within HE becomes
prime focus for debate
1974 Vietnam Era Veterans
Readjustment Assistance federal
contracts or subcontracts apply equal
opportunity and affirmative action to
hiring Vietnam veterans, disabled
veterans and active duty veterans
1978 US Supreme Court hears
Bakke vs. University of CA
the use of race based quotas in HE is
highly scrutinized
3
Commitment to Inclusion
1976 at the Big Three:
• Women make up 1/3 of freshman class
• 15% of the student population is
comprised of African American,
Latinos, Asian Americans, and Native
Americans
• Jewish student enrollment is at an all
time high at 33% at Yale to a low of
19% at Princeton
• Q. During this time, what influenced
the growth of minority representation
at the Big Three?
A. In mid-1970’s need
blind admissions
formula was fully
being instituted which
eliminated
discrimination against
Jewish students and
Women, but gave
special consideration to
underrepresented
minorities, legacies,
and athletes
4
New Admissions Formula
• In 1771 a pure merit model did not satisfy
Harvard
 Only benefited high scoring candidates
from metropolitan schools
• Solution: initiate a need blind model of
admissions that would allow for
consideration of merit with flexible
subjective admissions policies (heavy
emphasis on personal characteristics)
• Q. What were the institutional advantages
of such an admissions policy? And, what
was the justification?
A. The gatekeepers
(admissions +
faculty) had the
freedom to select an
entering class that
best represented
institutional
interests
B. The Big Three still
held the belief
that personal
characteristics were
just as important in
predicting future
success in life and it
allowed faculty and
alumni interest to be
served
5
Affirmative Action Receives Criticism
• For the first time that the Big Three started using affirmative
action practices to benefit minorities an outcry of “reverse
discrimination” occurred in the media (p. 486):







“The Return of the Quota System”
“Discrimination Against the Qualified”
“The Decline of Merit”
“Do Colleges Practice Reverse Bias?”
“A Breakdown in Civil Rights Enforcement?”
“The Tyranny of Reverse Discrimination”
“The Idea of Merit”
• Supporters of the “merit” model opposed affirmative action
• Higher education’s autonomy in selecting applicants was
being scrutinized
6
Why is Affirmative Action Under Attack?
• 1964 Civil Rights Act is signed into law by Lyndon Johnson
• outlawed discrimination based on race, ethnicity, gender, and
religion in schools, employment, and public organizations
• Opposition felt affirmative action was a form of “reverse
discrimination” against whites and violated civil rights act
• Supporters felt the 1964 Civil Rights Act was a step in the
right direction, but it did not correct all the injustice of past
racism and segregation
• Supporters of affirmative action saw it as a tool to correct past
injustice by leveraging opportunity for those who never had it
due to racism
7
Marco DeFunis v. University of
Washington Law School
• 1971 DeFunis sued University of Washington because he
is denied admission to Law School
 Believed denied due to acceptance of less qualified
minority applicants
 Claimed deprived equal protection of the law under
the Fourteenth Amendment
• University of Washington ordered to enroll DeFunis in the
1971-1972 school year by the Washington State Court
• University of Washington appealed the ruling
• March, 1973 State Supreme Court heard the case and ruled
in favor of University of Washington by 6-2 vote (p. 487)
• Big win for the Big Three
8
DeFunis Appealed Decision
• DeFunis appealed Washington State
Supreme Court decision based on lawyer
recommendations
• Fear of program dismissal
• November, 1973 US Supreme Court agreed to
hear case
 30 briefs representing 60 organizations were
filed (22 sided with the law school and 8
with DeFunis)
• Fearing potential consequences Harvard took
a strong stand siding with University of
Washington.
• Q. Why did Harvard take a strong stand with
the University of Washington?
A.
If DeFunis won
the case in the
U.S. Supreme
Court it could
lead to further
court rulings
imposing a
“model of pure
academic
meritocracy”
B. Institutional
interests could be
compromised
because limitations
could be placed on
the institutional
freedom of
selecting
applicants
9
US Supreme Court Hears DeFunis Case
• Archibald Cox, Harvard Law school professor was well
established for a reputation of integrity and fairness
 Harvard sent message they were serious by hiring Cox
• Cox stressed the following three points:
1) Harvard’s age and experience made them an educational authority
2) State should not limit higher education’s institutional authority
3) Considering race in admissions was necessary to create a diverse
student population
• University of Washington issued public statement that they
will allow DeFunis to graduate regardless of ruling
• April 23, 1974 Supreme Court ruled 5-4 declaring the case
“moot” because no issue existed that needed resolution
10
Allen Bakke v. University of California
Davis Medical School
• June 1974 Bakke filed a law suit against UC Davis
• Claim: UC Davis’s policy of reserving 16% of the entering
class for less qualified minorities denied equal protection of
the law
• Yolo County court declared that providing preference to
minorities was injustice when it denied white applicants
equal opportunity; however, did not enforce a ruling
 It was unclear that Bakke would have been admitted in
absence of minority preference and the court felt
uncomfortable enforcing a ruling over medical school
admissions
11
California Supreme Court Hears Case
• Mid-September 1976 State Supreme Court
votes 6-1 ruling in favor of Bakke
• October 28, 1976 UC Davis ordered to
admit Bakke
• UC Davis immediately challenged ruling
and filed a brief with the US Supreme Court
• University of Pennsylvania took the lead in
supporting UC Davis
 Controversial nature of the case made other Ivy
League universities hold off on immediate
support
• Q. What concerns do you think may have
been shared by university administrators?
A. If supreme court
supported Bakke
higher education
would be at risk
for “reverse
discrimination
lawsuits”
B. Minority gains
would be set back
by strict
color-blind
admissions
policies
C. Controversial
nature of the case
could have created
faculty and alumni
tensions
12
US Supreme Court Hears Bakke Case
• February, 1977 at a meeting of the Ivy
Council Presidents Harvard, Columbia,
and later Stanford choose to join Penn
State in submitting briefs
• Archibald Cox was hired again to present
the case
• October 12, 1977 the US Supreme Court
convened to hear the University of
California vs. Allen Bakke
 Media sensation with nearly 100 reporters
 Hundreds of people gathered on the steps
of the supreme court
13
US Supreme Court Decision
• June 28, 1978 Justice Lewis Powell spoke for
the torn court
• Declared Bakke admitted aligning himself
with conservatives, but decided against
banning affirmative action aligning himself
with liberals – “Solomonic” (p.497)
• Decision allowed universities to consider race
for the purpose of obtaining diversity and the
purpose to fulfill institutional goals
• Publically declared Harvard as the perfect
embodiment of an appropriate admissions
system
• Q. How did Powell downplay the central
argument of affirmative action in admissions?
A.
B.
He dismissed the
issue of social
discrimination
focusing instead
on justifying
affirmative action
polices for the
achievement of
diversity
Diversity defense
downplayed that
merit standards
maintained the
status quo by
providing
privilege to
white’s that had
been given
greater access to
opportunities
14
Asian American Discrimination
• 1960s and 1970s Yale & Princeton recruiting Asian Americans
• 1976 Harvard did not recognize Asian Americans as a minority
 Not allowed to participate in Freshman Minority Orientation
 Included in affirmative action federal compliance report
• Between 1974-1975 Coalition of Asian Americans is formed
(known as Asian-American Association in 1977)
 Placed demands on Harvard to increase Asian-American
recruitment and incorporate into affirmative action program
 By 1978 Harvard freshman class increase from 3.6% to 6.5%
• Between 1983-1986 an outcry of Asian-American
discrimination at the Ivy league schools
 Claim that Asian-Americans held to a higher admissions standard
15
Federal Investigation’s Begin
• Corporation Committee on Minority Affairs (COMA) found
that Asian-American applicants received lower scores on
nonacademic ratings at Brown University
 Princeton and Stanford’s findings also showed Asian-Americans
were admitted at a lower rate than white applicants
• 1987 New York Times article by Ling-Chi Wang compared
Asian-American quota to the Jewish quota
 Harvard defense - Asian-Americans had weaker qualifications
 That year a journal published that a 112 point difference existed
on the SAT between Asian (1467 score) and Caucasian (1355
score) applicants
• 1988 Office of Civil Rights (OCR) started an investigation at
Harvard
16
OCR Investigation Findings
• 1990 OCR investigation showed that Asian-Americans were
admitted at a significantly lower rate between 1982-1988:
 Harvard's preference of admitting legacies and athletes placed
Asian-Americans at a disadvantage
 Bakke case supported that an institution could have the right to
admit applicants for the goal of achieving the institutional
mission so the OCR concluded admitting legacies and athletes
were institutional goals and not considered cause for
discrimination
• Harvard had met legality by:
 Not intentionally excluding Asian-Americans in admissions
 Establishing a connection between institutional policies and goals
• Harvard received criticism from the OCR report due to the
finding that applicants were judged more on superficial grounds
17
1990’s to 2002 At the Big Three
• 1990’s Harvard showed a deep commitment to diversity
 President Neil Rudenstine supported affirmative action policies
to increase diversity
• 2001 Asian-Americans dropped to below 15%
• 2001-2002 show a disturbing trend of decline in students
from low-socioeconomic backgrounds
 54% students able to pay more than $38,000 per year without
scholarships
 46% of scholarships went to families with incomes between
$80,000-$90,000
 1/3 of scholarships go to families with incomes of $1000,000
• 2002 African American’s only 6.8% of the freshman class
• 2002 “z-list” existed for legacies
18
Class Activity: Restoring Campus Climate
UC Berkeley Incident of 2011
In 2011 California Senate Bill 185 was successfully passed by the state legislature
and awaited Governor Jerry Brown’s signature of the bill into law. The SB 185 bill
would have allowed public colleges and universities to consider race in the
admissions process. Passing the bill would have contradicted California’s 1996
Proposition 209, California Civil Rights Initiative, which prohibited public state
institutions to consider race, sex, or ethnicity in the admissions process. Supporters of
the SB 185 bill stated it would have increased the multicultural diversity of pubic
state higher education institutions and opponents like Ward Connerly, former UC
Regent and influential supporter of Proposition 209 believed that other methods
should be utilized to increase access for underrepresented minorities. In 2011 the
College Republicans Club with the support of Ward Connerly held an “Affirmative
Action Bake Sale,” which elicited a great deal of controversy in the media. The
following is a media clip of the UC Berkeley students discussing the incident.
Affirmative Action Bake Sale Incident at UC-Berkeley
19
Bronfenner’s Ecological Framework for
Human Development
Microsystem Level
• One-on-one direct
interactions
Mesosystem Level
• Two-party relationships/
“linkages”
Exosystem Level
• Social system relations/
influence Microsystem
Macrosystem Level
• Cultural expectations,
political ideologies, and
societal influences
(Evans, Forney, Guido, Patton, and Ren, 2010, P. 163)
20
Research on Student
Affirmative Action Perspectives
Study examined the differences that occurred in racial/ethnic
groups attitudes about affirmative action over 4 year period:
 Sample Size: 18,217 students from 169 institutions were surveyed during
1st and 4th year of college
 Participants: 15,704 White, 706 Black, 323 American Indian, 701 Asian
American, & 783 Latino/a
 Data collection: Fall 2000 Cooperative Institutional Research Program
(CIRP) Freshman Survey and Spring 2004, follow-up survey, College
Student Survey (CSS)
 Dependent variable: item asking students if “affirmative action should be
abolished in college admissions” measured on scale from 1 (disagree
strongly) to 4 (agree strongly) and Independent variables: demographic
characteristics, academic preparation, attitudes and attributes, college
environment (public versus private), political and religious affiliation,
choice of major (using Holland's typology), and racial attitudes or beliefs
(Park, 2009)
21
Results Showed
Fall 2001 – Spring 2004
1.
2.
3.
4.
5.
6.
7.
White students more likely
to agree and their beliefs
shifted the least over 4y
Men (10 points more)
Southern areas (22.3%)
High academic preparation
most likely to agree
Conservative
Realistic, Enterprising, and
Artistic majors
Belief that racial
discrimination is not a
problem and individuals
have little control to change
society
1.
2.
3.
4.
5.
6.
7.
Black students most likely to
disagree and opinion grew
stronger over 4 years / both
Asian American and Latino
students shifted slightly over 4 y
Women (10 points less)
East coast areas (12.3%)
Low academic preparation
Liberalism
Social majors
Attitude or commitment towards
promoting racial understanding
(Park, 2009)
More Likely to Disagree
More Likely to Agree
“Affirmative action should be abolished in college admissions”
22
UC Berkeley Responses
What was UC Berkeley's response to the “Affirmative Action Bake Sale”?
•
•
•
•
•
•
•
•
Campus administrators sent a campus wide letter condemning the bake sale
A student coalition at UC Berkeley posted seven “Tentative Demands for the UC
Berkeley Campus Administration”
The Initiative for Equity, Diversity and Inclusion website listed research articles,
teaching resources and media coverage in response to BCR’s bake sale
Linda Chavez, Chair of the Center for Equal Opportunity went on National Public
Radio to address and examine the necessity of affirmative action policies
Rodolfo Mendoza-Denton, Associate Professor of Psychology responded with the
blog article “Making the Invisible Visible: Campus Republicans Bake Sale”
The ASUC Senate passed “A Bill in Support of Respectful ASUC Student Group
Conduct”
The Coalition a newly-formed multicultural student group held a town hall meeting
to promote multiculturalism and open dialogue (did not allow BRC to attend)
The Coalition recruited 250 demonstrators to execute a protest in response to “poor
campus climate”
23
References
• Evans, E.J., Forney, D.S., Guido, F.M., Patton, L.D., & Renn, K.R.
(2010). Student development in college theory, research, and
practice. CA: Jossey-Bass.
• Karabel, J. (2005). The chosen: The hidden history of admission
and exclusion at Harvard, Yale and Princeton. NY:
Houghton Mifflin.
• Park. J. (2009). Taking race into account: Charting student
attitudes towards affirmative action. Research in Higher
Education, 50 (7), 670-690.
• Miller. J. (2011). Incident at UC-Berkeley. Fox News. Retrieved
from http://www.foxnews.com
24