Yale Law School
Yale Law School Legal Scholarship Repository
Faculty Scholarship Series
Yale Law School Faculty Scholarship
1-1-1996
Introduction: After Bakke
Robert C. Post
Yale Law School
Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers
Recommended Citation
Post, Robert C., "Introduction: After Bakke" (1996). Faculty Scholarship Series. Paper 199.
http://digitalcommons.law.yale.edu/fss_papers/199
This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It
has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For
more information, please contact [email protected].
ROBERT
POST
Introduction: AfterBakke
THERE
WAS THE
SENSE
OF VIOLATION,
of course. At thebidding of
a governor
anxioustoridetheraceissuetotheWhiteHouse,theBoardofRegents
of California,
of the University
againsttheoppositionof faculty,
and
students,
over the vigorousprotestsof chancellorsand demonstrators,
administration,
votedto end affirmative
actionat thepremierpublicinstitution
of thenation's
mostdemographically
diversestate.'The firstmajorpublicuniversity
to do so.
July20, 1995.
At a stroke,thelandscapeof highereducationhad changed.Assumptions
about race and ethnicity
thathad for decades guided policywere suddenly
strippedofthearmorofinstitutional
inevitability.
Theywererentopen,open to
whateverthe newlyemergingpoliticsof a
recuperation,
revision,repudiation,
dawningera woulddecree.Stungbythiseruptionof history,
theeditorsofRepresentations
presentthisspecialissuedevotedtoexploringthenewterrain.
the University
of Californiahad itselfhelpedto createthevery
Ironically,
thatpresently
legal framework
governsaffirmative
actionwithinhighereducation.That framework
was established
in reactionto theUniversity's
defenseof
one ofitsownaffirmative
actionprogramstoassistminority
groups.The frameworkprovidesa clarifying
lensforidentifying
themanyquestionsof policyand
swirlthroughthe maelstrom
principlethatpresently
of the affirmative
action
forthelaw'stormented
and equivocalresponsetoaffirmative
action
controversy,
thenationaldebate.
closelyreflects
AfterWorldWarII, theequal protection
clauseof theFourteenth
Amendmentof theUnitedStatesConstitution
cameto be interpreted
as strongly
disfaThis intervoringtheuse ofexplicitracialor ethniccriteria
bystateinstitutions.2
pretationwas part of the nationaleffortto disestablishSouthernapartheid.
normswerealsopowerfully
Nationalegalitarian
articulated
byfederallegislation.
Mostrelevantto highereducation,TitleVI of theCivilRightsActof 1964 proon "thegroundofrace,color,or nationalorigin"in any
hibited"discrimination"
"programor activity
The reachof Title
receivingFederalfinancialassistance."3
VI remainsquitebroad;itappliesto"alltheoperationsof"any"college,university,or otherpostsecondary
institution,"
anypart"ofwhichis extendedFederal
financialassistance,"'
evento theminimalextentof enrolling"studentswho receive federalgrantsthatmustbe used foreducationalpurposes."5Affirmative
actionprogramsappearedto be in tensionwiththesenationalnormsof nondisREPRESENTATIONS
55 - Summer 1996 ?
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
actionprogramto provoke
affirmative
crimination.The first(and only)university
a full-scaleSupreme Court constitutionalreviewof theselegal constraintswas that
of the medical school of the Universityof Californiaat Davis, whichwas subject
to the restrictionsof both the equal protectionclause and Title VI.
A legal complaintchallengingthe programwas filedon 20 June 1974, and it
of
ultimatelyresulted in the decisive Supreme Court case of Regentsof University
Californiav. Bakke.6The Davis medical school had essentiallyreserved sixteen
places out of an enteringclass of one hundred forpersonswho were membersof
one of four "minoritygroups": "Blacks," "Chicanos," "Asians,"and "American
Indians."7The Court splinteredbadly in its evaluation of the case. Four justices
wrotethatthe Davis programwas a constitutionaleffortto redressthe "effectsof
and thatTitle VI "prohibitsonlythoseuses of racial
past societaldiscrimination,"8
criteriathatwould violatethe FourteenthAmendmentif employed bya State or
its agencies."9Four justices held that the program was illegal because Title VI
requiresa "colorblind"admissionprocessin which"race" does not providea "basis
of excludinganyone fromparticipationin a federallyfunded program."'0These
justices did not address the independent restrictionsof the equal protection
clause.
The fifthand determinativevote was cast byJusticeLewis F. Powell Jr. AlthoughPowellwroteforhimselfalone, hisviewcarriedthebalance of power,and
it has remained the governinglaw to this day. Over time,Powell's opinion has
come to stand forfourpropositions:(1) Title VI applies constitutionalstandards.
(2) The Constitutionrequires thatall explicitstateuses of racial criteria,whether
or not for benign purposes, be subject to strictjudicial scrutinyto determine
whethertheyare narrowlytailored to servecompellingstateinterests." (3) The
state'sinterestin remedyingthe generalized and systemiceffectsof societal disaction procriminationis not compellingand hence cannotjustifyan affirmative
gram.12 (4) The Universityof California'sobjectiveof attaining"a diversestudent
compellingand can justifythe use of racial and ethnic
body" is constitutionally
criteriaforadmissions:
of"speculation,
andcreation"-soessentialtothequality
The atmosphere
experiment
ofhighereducation-iswidelybelievedtobe promotedbya diversestudentbody.... [I]t
futuredependsuponleaderstrainedthrough
wide
is nottoomuchtosaythatthe"nation's
exposure"to theideas and moresof studentsas diverseas thisNationof manypeoples.
mustbe accordedtherighttoselectthosestudents
Thus,inarguingthatitsuniversities
ofCaliforthemosttothe"robustexchangeofideas,"[theUniversity
whowillcontribute
constitutional
thatoftheFirstAmendment.
In this
interest,
nia]invokesa countervailing
mustbe viewedas seekingto achievea goal thatis of paramount
light,[theUniversity]
ofitsmission.13
in thefulfillment
importance
This last propositionprovides the constitutionaljustificationfor contemporary
action programsthroughoutthe country.
universityaffirmative
Powell made veryplain that
In explainingthe objectiveof student"diversity,"
2
REPRESENTATIONS
in his view the Constitutioncould not be read to accept a "diversity"that was
defined solelyby referenceto differencesbetween racial or ethnic groups. The
"diversity"that Powell found constitutionally
compelling was located instead in
the infinitely
variable differencesamong individuals,withrespectto whichracial
or ethnicidentitywas onlya "singlealthoughimportantelement."'4
The legal structureof the Davis medical school program establisheda fixed
quota that automaticallyset aside sixteenslots for those who were members of
four specificgroups. The structureof the program thus collapsed the endless
possibilitiesof differenceintofourdiscreteand limitedcategoriesof group idenaction programunconstitutionalbecause
tity.Powell found the Davis affirmative
it rendered race and ethnicitya determinativefactor,ratherthan merely"a 'plus'
in a particularapplicant'sfile,"a "plus" thatwould "not insulate the individual
fromcomparison withall other candidates for the available seats."'5 The Davis
program was unconstitutionalbecause it recognized only the diversityof racial
and ethnicgroups, ratherthan the diversityof individuals.
The crucialfactaboutBakke,however,is thatPowelldid not end hisjudgment
He took the unusual step of apwitha simple declarationof unconstitutionality.
action plan of Harvard College, which
pending to his opinion the affirmative
Powell said he would findconstitutional.The Harvard plan celebratedthe diversityof individuals,but it also specificallynoted thatthe value of ethnicand racial
diversitycould be attained only throughan admission process that paid "some
attentionto numbers."'6
By stretchingthroughdicta to approve the Harvard plan, Powell prospecaction plans that went beyond the recognitionof
tivelysanctioned affirmative
purely individual differencesin order to ensure the representationof distinct
racial groups. He therebysignifiedthat"diversity"could not in factbe reduced
to mere individualvariety,but must also be understood to depend upon the effectivepresence of diversegroup perspectives.
In dissent,JusticesWilliamBrennan, ByronWhite,Thurgood Marshall,and
Harry Blackmunargued thattheDavis and Harvard programswere functionally
equivalent. "There is no sensible,and certainlyno constitutional,distinctionbetween,for example, adding a set number of points to the admissions ratingof
disadvantaged minorityapplicants as an expression of the preferencewith the
expectationthatthiswillresultin the admissionof an approximatelydetermined
numberof qualifiedminorityapplicantsand settinga fixednumberof places for
such applicants."'7 The only differenceis that the Harvard program does not
"make public the extentof the preferenceand the preciseworkingsof the system
whilethe Davis programemploysa specific,openlystatednumber."'8 The dissent
pressed a formidablefunctionallogic.
Powell's opinion, however,was designed to workas an ideological construct,
not merelyas a functionalone. Powell'sambitionwas to establisha fragilebalance
between,on theone hand, allowingacademic affirmative
action plans to continue
Introduction:
AfterBakke
3
as a means of redressingdeep social dislocationsand, on the other,ideologically
destabilizingsuch plans so as to preventtheir slide into a regime of racial and
ethnicrightsand entitlements.'9What was "immediatelyapparent to the public"
was thusfundamentalto Powell.20He was determinedbothto achieve a pragmatic
accommodationto the social necessityof affirmative
actionand to extracta patent
symboliccommitmentto the values of individualism.2'In the process he crafted
a remarkablejudicial opinion whose "moderationand statesmanship,"as Judge
Henry Friendlyobserved,saved the countryfrom"anotherDred Scott."22
The Regents'resolutionofJuly20 roughlyrepudiated Powell's delicate and
judicious compromise. In truth,however,Powell's opinion had never been free
frominternalstressand attack.It had never silenced the contentionthat affirmativeaction ought to be used to remedythe presenteffectsof past oppression.
Such claims forexplicitracial and ethnicrightsto distributive
justice, the implicationsof whichextend beyond the limitedcontextof universityadmissionsand
reach into the structureof the labor market,are visiblein thisspecial issue in the
essaysof Michael Rogin and TroyDuster; the clear suggestionof theirargument
is thatthejoint dissentin BakkeofJusticesBrennan, White,Marshall,and Blackmun was correct.Moreover,byde factosanctioningaffirmative
action programs
theBakkecompromisehas over the past two decades
based on race and ethnicity,
facilitatedthe demographic preconditionsfor the emergence of new claims for
racial and ethnic entitlementsbased upon an aggressiveidentitypoliticsthat is
both multiculturaland separatist.These claims are traced and analyzed in the
essaysofJudithButler and Michel Feher.
As evidenced in the Regents'resolutionofJuly20, theBakkecompromisealso
never fullysatisfiedthose committedto the values of liberal individualism.23
These values, as illuminatedbyJorge Klor de Alva, are deeply embedded within
the American liberal and Christiantraditions.They are not easilytrespassed. In
action
factitis remarkablein retrospecthow pervasiveand entrenchedaffirmative
has become withoutpreviouslyhaving provoked the kind of frontalchallenge
representedby the Regents'resolution.No doubt thisis in part due to the widespread recognitionthatracialand ethniccategorieshave throughoutthecenturies
been employed as efficientcategories of discriminationand oppression. The
action seems fromthis perspectiveundeniable. To
rough justice of affirmative
comprehend the source of Powell's reservations,therefore,it is essential to understand the precise termsof the oppositionhe establishesin Bakke.
There are significantWesterntraditions-for example, Kantian and Christian traditions-in which the values of individual autonomy are understood as
standingoutside of history.But as Marianne Constable illustratesin her articlein
thisspecial issue, it is all but impossibleto deny eitherthe historicalconstruction
4
REPRESENTATIONS
or the historicalsalience of race as a relevantcategoryof social diversity.Race
leaches into the Regents'resolutiondespite theirbest effortsat exclusion. Anne
Wagnermakes thelargerpointthathistoricalnarrativesof race resistsuppression
even bythemostsevereand seeminglyapoliticaleffortsof culturalrepresentation
to do so.
Powell'sopinion in Bakke,however,is not such an effort.He does not wish to
deny history.The facetsof individual diversitythat he celebrates,for example,
are all historicallyconstructed.When Powell citesHarvard's praise forthe diversitythatcomes from"citydwellersand farmboys; violinistsand footballplayers;
biologists,historians,and classicists;potentialstockbrokers,academics and polihe locates,as he must,individualdiversityin historicallygivenand conticians,"24
tingentcategories.
His opinion, therefore,does not rest upon an opposition to the historical
constructionof difference.It restsinstead upon the historicallygrounded, normative,constitutionalpropositionthatrace and ethnicityought not to be used as
a ground of state action except in the rarest and most exceptional of circumstances.Powell stronglyaffirmsthispropositionin order to condemn the nation's
historyof officialracial discriminationand oppression. So when JusticeBlackmun, in his separate opinion in Bakke,notes the ironyof the factthatuniversities
"have given conceded preferencesup to a point to those possessed of athletic
skills,to the childrenof alumni, to the affluentwho may bestow theirlargess on
and to thosehavingconnectionswithcelebrities,the famous,and
the institutions,
the powerful,"25
he fails to engage Powell's central point, which is that when it
comes to stateactionthecountry'shistoryhas made race and ethnicityspecial and
problematiccategories.
The question remains,however,how an ideal of racial nondiscriminationcan
be squared withan incontestablehistoryof pervasiveofficialmisuse of racial and
ethnic categories. The sociologistNiklas Luhmann astutelyobserves that normative propositions,unlike descriptiveones, are "capable of conformationas
formbyboth conformableand deviantconduct."26Whereas we would be merely
foolishsteadfastlyto maintainallegiance to descriptivehypothesesthatprove frequentlyfalse, the same is not true of our moral commitments.Thus we do not
ordinarilyunderstandthe commandmentagainstmurder to be rendered untenable by a high homicide rate. We are more likelyto read the crime statisticsas a
reason to redouble our effortsto enforcethe moral prohibition.
Similarly,a historyof discriminationand oppression does not necessarilydiscredit the constitutionalnorm that a person's race and ethnicityought not to
matterto the state.It could lead us instead to even greatereffortsfullyto realize
thatliberal,individualistideal. Of course the opposite outcome is also possible.
We mightcome to believethattheideal is so otherworldly,
so pervasivelyirrelevant
and compromised,as to be worthlessas a guide to action,and we mightdemand
Introduction:
AfterBakke
5
thata differentnormativeorientationbe adopted. Or we mightbelieve thatthe
ideal should be compromisedor temporarilysuspended in the serviceof its realisticfulfillment.
The debate over the ideal can have many differentpossible outcomes. It is
clear, however,that the debate will turn on a wide varietyof practical,historical, and contingentconsiderations.It is at thisjuncture of the argumentthatthe
sociological and demographic analyses offeredin this special issue by Richard
Walkerbecome relevant,as do the assessmentsof politicaland strategicfactors
contributedby David Hollinger,as do the personal and experientialreflections
recorded by Barbara Christian.
The crude inconsistencybetween the ideal of racial nondiscriminationand
the factof racial oppression is mostoftenfinessedin liberalthoughtbyconfining
affirmative
action to a discreteand bounded temporal position. Affirmative
action,it is said, is necessaryas a temporaryexpedient to overcome past discrimination.In thefamouswordsofJusticeBlackmuninBakke,"In order to getbeyond
racism,we mustfirsttake account of race."27
Powell'sopinion, however,does not take thistack. It instead invokesbenefits
of diversitythatare not representedas temporary.These benefitsare figuredas
structuraland atemporal. Of course Powell views these benefitsas merelypermissive; nothingin his opinion compels universitiesto seek them, nor does he
attemptto definethe termsin whichtheymustbe embodied. Nevertheless,over
timeBakkehas come to stand forthe propositionthatrace and ethnicityare constitutiveof a structuraland atemporalvalue of diversity.This notionof diversity
has in turnfosteredthe paradoxical tendencyto view the categoriesof race and
ethnicityas themselvesimmunefromthecontingenciesof historicalconstruction.
Essays in thisspecial issue by Miranda Oshige McGowan, Rachel Moran, and Miof thisproblematic
chael Omi and Dana Takagi explore the costsand difficulties
are
tendency.At stake
exceedinglyimportantconsiderationsin the practicaldeaction programsunder Bakke.
sign of affirmative
Whateverthe deficienciesof Powell'sopinion in Bakke,and no doubt theyare
legion, it has alwaysseemed to me to contain two shiningvirtues.The firstis its
action on the basis of the "mission"of higher educaefforttojustifyaffirmative
tion. Powell resistscharacterizingaffirmative
action as unrelated to educational
and
as
hence
purposes
externallyimposed upon universitiesand colleges. The
strengthof his approach is now especiallyapparent, as facultythroughoutthe
Universityof Californiasystemmobilize to resistthe Regents' resolutionon the
grounds thatit is an improperpoliticalimpositionon the educational missionof
There are signs that defending the institutionalautonomy of
the University.28
publicuniversitiesmaybecome of increasingnationalimportanceas "a new group
6
REPRESENTATIONS
of public-collegetrustees"appears poised to move "aggressively"to implement
far-reachingpolitical"agendas."29
action have sometimes,in the heat and intensityof
Partisansfor affirmative
failed to appreciate the importanceof thispoint. One can occathe controversy,
action
sionallydiscern resonances of the highlynihilisticclaim that affirmative
ought to be unproblematicbecause universityadmissions criteriaare arbitrary,
so that the refusal to extend preferencesbased upon racial or ethnicidentityis
or unjust.Those concerned to unmask"themythof merit"
merelydiscriminatory
and to expose the "subjectivenature of universitydecisions"are particularlyattractedto thisline of argumentation.30
A major problem withthisperspective,however,is thatit ultimatelydenies
legitimacyto the distinctiveeducational purposes of institutionsof higherlearning. If universitiesand colleges have no particularmission,therecan be no principled objection to the Regents'subordinationof the Universityof California to
the presidentialambitionsof the State'sgovernor.But if,on the contrary,there
are ends to whichhighereducation ought to aspire,then"merit"in theadmission
processwillbe neithermythicalnor subjective,but willrepresentinstead the standards of selectionbest suited forthe attainmentof those ends.3'
I do not mean to implythathighereducation has any single or simple set of
purposes. No doubt the ends of colleges and universitiesare diverseand various,
whichis whymostcollegesand universitiesemploymultifariousmeasuresof merit
embodied in complex and seeminglyinconsistentstandardsof admission. Many,
if not most,of the goals of highereducation are probablybest expressed in standards of admissionthatare neutralwithrespectto racial and ethnicidentity.But
thisis not the case withrespectto all such possible goals.
The institutionalautonomyof publicuniversitiesmaybestbe protectedifthe
issue of affirmative
action is addressed in termsof the question of appropriate
and inappropriateeducational purposes. In Bakke,forexample, Powell advanced
the theorythatlearningwas an appropriate object of highereducation and that
learning would be improvedthrougha "'wide exposure' to the ideas and mores
of studentsas diverse as this Nation of many peoples." Powell concluded that
admissionstandardscould legitimately
acknowledgeracial and ethnicdifferences
because that acknowledgmentwas necessaryin order to realize the benefitsof
diversity.While the heuristicpremises of Powell's theoryare surely subject to
debate, it is at least the rightkind of debate to be having in the contextof affirmativeaction.
It is importantto recognize,however,thatthe heuristicvalue of diversityis
not the onlytheoryof highereducation thatwouldjustifystandardsof admission
that acknowledge racial and ethnic differences.In the remainder of this introduction I would like brieflyto sketcha differentsuch theory:the creation of a
democraticpublic culture.
AfterBakke
Introduction:
7
Democracy and public education have long been regarded as inseparably
complementary.Democracyis the practiceof collectiveself-determination;
public
education is an investmentbythe stateto disseminatethe trainingand knowledge
prerequisitefor that practice.The question I wish to analyze concerns the distinctivecontributionof publichighereducationto democraticpractice.The questionwill,I hope, illuminatewhat I regard as the second greatstrengthof Powell's
opinion in Bakke,whichis itsaccommodationof affirmative
action withina justificatoryframeworkthatunsettlesthe slide towardgroup rightsand entitlements.
"The essence ofdemocracy,"writesJean Piaget,"residesin itsattitudetowards
law as a product of collectivewill,and not as somethingemanating froma transcendentwillor fromthe authorityestablishedbydivineright.It is thereforethe
essence of democracyto replace the unilateralrespectof authoritybythe mutual
respectof autonomous wills."32Democracy,we mightmore preciselysay,entails
the perpetual process of reconcilingthe self-determination
of autonomous wills
self-determination
of a polity.This process,whichis perennially
withthe collective
open-ended, occurs through the medium of a public discourse sustained by a
public culture.33
Two consequences flowfromthisformulation.First,thereis a strongaffiliation between democracyand individualism,because the autonomous willsof individuals are conceptualized as politicallyprior to and constitutiveof the rights
of groups. If thiswere not the case, if the self-determination
of individualswere
to be subordinatedto the identitiesand normsof particulargroups, the possibilwould to thatpreciseextentbe circumscribed.
itiesofcollectiveself-determination
Second, because of this political individualism,democratic public culture
must also be understood as distinctfromthe culturesof particulargroups and
communities.Even thoughwe knowthatin actualitythe identitiesof individuals
are formedthroughsocializationinto the mores of specificand historicalgroups
and communities,the ideal of self-determination
requires thatpublic culturealwaysmaintainthe possibilityof citizensimaginingthemselvesas somethingother
thanwhattheyin factare. Public culturemustbe large enough to encompass this
possibilityand thereforeto embrace all possible groups and communities.Public
cultureis, as Thomas Keenan writes,the "realm ... of others,of all thatis other
to-and in-the subjectitself."34
Historicallyand sociologically,public culturetypicallyevolves from"cultural
itfunctions,as thesociologiststellus, as a "universeof discourse"
differentiation";
withinwhichdistinctcommunitiescan neverthelesscome togetherto forma single
democraticpolity.35
Public cultureappears as a site of difference,in whichcommunicationoccurs betweenthosewho do not share the identityand assumptions
that define distinctivecommunities.Successful participationin public culture
thereforerequires a special formof culturalcapital: the abilityto interactin a
mannerthatestablishesdistancefromlocal certitudesand therebycre"critical"36
ates the possibilityof spanning the boundaries betweendisparate groups.
8
REPRESENTATIONS
Institutionsof higher education are today a primarysource of thatcultural
capital. They aspire to cultivatethe remarkableand difficultcapacityto regard
oneself fromthe perspectiveof the other,whichis the foundationof the critical
interactionnecessaryforactiveand effectivecitizenship.37
The cultivationof this
capacityis especiallyimportantforpublicuniversities,fortheyare in partcreated
to educate generationsof futurecitizensso as to maintainthe legitimacyof demPublicuniversitieshave theeducational obligationto disocraticself-government.
pense theculturalcapitalat theirdisposal in a mannerthataccountsforthehealth
of public culture.
There are many dimensionsto thisobligation,but certainlyone aspect of it
would entail facilitatingparticipationin public cultureby membersof politically
salientcommunities.A politicalculturewithoutsuch participationwould be neither democratic nor healthy,but merelyrepressive. In the United States, and
especiallyin California,racial and ethnicidentitiesmarklines of intensepolitical
division. If the racial and ethnicriftsthatdivide us are to be transcended by a
democraticstatethatis legitimateto all sides,theremustbe articulateparticipation
in publicculturethatconcomitantly
spans thelinesof thesecontroversies.I would
argue, therefore,that the educational mission of the Universityof California
ought to include the obligationto facilitatethisparticipation.
If "normal" admission standards,bywhich I mean admission standards formulated to achieve othereducational goals of the University,
would in effectoperate so as to exclude membersof politicallysalientracialand ethniccommunities,
then the University'sobligationto promotea flourishingpublic culturemaywell
require standardsof admissionthatexplicitlyrecognizeracial and ethnicidentity.
The justificationof thesestandardswould not depend upon any theoryof group
rightsor entitlements;it would not reflectthe extrinsicgoal of compensatingfor
past wrongsor oppression; it would not relyupon any pedagogical theoryof the
heuristicvalue of diversity.It would flowinstead fromthe educational goal of
fosteringthe public culture upon which rests the success of democratic selfgovernance. It would followfromthe perceptionthatin the United States today
democratic legitimacyvery much depends upon the active participationof an
educated and criticalcitizenrythat spans existingracial and ethnic differences.
Because thisgoal would conceptualizeuniversityapplicants as potentialcitizens who are capable of transcendinglocal attachmentsand identities,it would
entail admission standardsthat,like those proposed by Powell in Bakke,ideologicallyprivilegethe individualityof applicants.This means thatracial and ethnic
identitywould be relevant,but not determinative.An admissions policy based
upon the goal of nurturingpublic culturewould thus retain Powell's pragmatic
accommodationbetween a symboliccommitmentto individualismand a practicallyeffectiveresponse to social dislocation.
It is uncertainwhetherthisjustificationforaffirmative
action,ifcandidlyexpressed,would pass constitutionalmuster.But theprimarypurpose of thisspecial
Introduction:
AfterBakke
9
issue is to thinkfranklyamong ourselves,ratherthan to speculate about the constitutionalinterpretation
of ninejustices. Our fundamentalchallenge is to decide
what we wish to accomplishpoliticallyand how we wish to accomplishit,and we
may hope that in the end constitutionallaw will follow the lead of informed
judgment.
Notes
1. The Regentsresolvedthat"effectiveJanuary
1,1997, theUniversityof Californiashall
or nationaloriginas criteriaforadmission
not use race, religion,sex, color,ethnicity,
to the Universityor to any programof study."The completetextof the Regents'resolutionappears in an appendix on page 184. The Regents'prohibitionagainst the use
of the criteriaof religionand sex raises importantquestionsthatwe do not address in
thisspecial issue.
2. "Nor shall any State ... deny to any person withinitsjurisdictionequal protectionof
the laws." U.S. Constitution,amend. 14, sec. 1.
3. CivilRightsActof1964, U.S. Code, vol. 42, sec. 2004 (1994).
Actof1987, U.S. Code, vol. 42, sec. 2000d-4a (1994).
4. CivilRightsRestoration
5. GroveCityCollegev.Bell,465 U.S. 555, 558 (1984).
6. Regentsof University
ofCaliforniav. Bakke,438 U.S. 265 (1978). For an account of the
Actionand theSupremeCourt(New
case, see Bernard Schwartz,BehindBakke: Affirmative
York, 1988).
7. Regentsv.Bakke,274.
8. Ibid., 362 (joint opinion ofJusticesWilliamBrennan, ByronWhite,Thurgood Marshall,and Harry Blackmun).
9. Ibid., 328.
10. Ibid., 415-18 (opinion ofJusticeJohnStevens).Stevens'sopinion wasjoined byJustices
WarrenBurger,PotterStewart,and WilliamRehnquist.
11. Lewis F. Powell'sactual formulationof the strictscrutinytestwas somewhatdifferent.
See ibid., 305. For a modern formulationof the strictscrutinytest,see AdarandConv. Pena, 115 Sup. Ct. 2097, 2113 (1995). On the influenceof Powell's opinion
structors
in Bakkeformodern equal protectiondoctrine,see ibid., 2108-12.
12. Powellconceded theimportanceof the State'sinterestin "ameliorating,or eliminating
where feasible,the disabling effectsof identifieddiscrimination,"but he contended
thatsocietaldiscriminationwas by itsverynature general and amorphous. Regentsv.
action that
Bakke,307. Powell was not prepared to accept a rationale for affirmative
he believed would cede to "all institutionsthroughoutthe Nation" the power to use
racial criteria "at their pleasure" to establish affirmativeaction programs to assist
"whatevergroups are perceived as victimsof societaldiscrimination."Ibid., 310. The
v.J.A. CrosonCo.,488
modern Court has explicitlyadopted thisposition.See Richmond
v.JacksonBoard ofEd., 476 U.S. 267 (1986).
U.S. 469 (1989); Wygant
13. Regentsv.Bakke,311-13.
see RobertPost,
14. Ibid., 315-19. For a discussionof the twodifferentkindsof diversity,
"Cultural Heterogeneityand Law: Pornography,Blasphemy,and the FirstAmend-
10
REPRESENTATIONS
(Cambridge,Mass.,
ment,"in Constitutional
Domains:Democracy,
Community,
Management
1995).
15. Regentsv.Bakke,317.
16. Ibid., 323.
17. Ibid., 378.
18. Ibid., 379.
19. For a good discussion of Powell's intentions,see John C. JeffriesJr.,JusticeLewisF
Powell,Jr.(New York, 1994), 455-501.
20. "There is no basis forpreferringa particularpreferenceprogram simplybecause in
achievingthe same goals thatthe Davis Medical School is pursuing,it proceeds in a
manner thatis not immediatelyapparent to the public."Regentsv. Bakke,379 (joint
opinion of Brennan, White,Marshall,and Blackmun).
21. The presentCourt is now also engaged in extractinga symboliccommitmentto individualistvalues, in thecontextof a pragmaticadjustmentto racial realities,in the area
of reapportionmentplans designed to maximize minorityrepresentation.Compare
Millerv.Johnson,115 Sup. Ct. 2475 (1995) withDe Wittv. Wilson,115 Sup. Ct. 2637
(1995). As the Court statedin Shawv. Reno, 113 Sup. Ct. 2816, 2827 (1993), the first
of these cases, "reapportionmentis one area in which appearances do matter."By
contrast,the Court's enforcementof individualistvalues in the area of employment
has notat all been merelysymbolic.See Richmond
v.J.A. CrosonCo.,488 U.S. 469 (1989).
LewisF Powell,
22. Quoted in Jeffries,Justice
Jr.,498.
23. Indeed, as I writethisintroduction,a panel of the United StatesCourt of Appeals for
action plan based upon the ratiothe FifthCircuithasjust struckdown an affirmative
nale of Bakkeat the Law School of the Universityof Texas at Austin. The Court held
that Powell's "lonelyopinion in Bakke"should no longer be regarded as controlling
precedent because interveningSupreme Court cases stand for the proposition"that
any considerationof race or ethnicityby the law school for the purpose of achieving
a diversestudentbodyis nota compellinginterestunder theFourteenthAmendment."
Hopwoodv. Texas,1996 U.S. App. LEXIS 4719 (5th Cir. 18 March 1996), 32, 40. The
Court observed that"diversityfosters,ratherthan minimizes,the use of race. It treats
minoritiesas a group, ratherthan as individuals."Ibid., 40.
24. Regentsv.Bakke,322.
25. Ibid., 404.
trans.Rhodes Barrett(New York, 1993),
26. Niklas Luhmann, Risk:A SociologicalTheory,
55. For a full elaboration of the point, see Niklas Luhmann, A SociologicalTheoryof
Law, trans.Elizabeth King and MartinAlbrow(Boston, 1972), 31-35.
27. Regentsv.Bakke,407.
28. See, e.g., "DepoliticizingUC," Sacramento
Bee, 15 January1996, B6.
29. PatrickHealy, "The Republican Contractwith Higher Education: ActivistTrustees
Raise Questions on Finances,Curriculum,Racial Preferences,"Chronicle
ofHigherEducation,26 January 1996, A26.
30. Martha S. West,"Gender Bias in Academic Roles: The Law's Failureto ProtectWomen
Law Review67 (1994): 134-43.
Faculty,"Temple
31. See Kenneth L. Karst and Harold W. Horowitz,"Affirmative
Action and Equal Protection,"VirginiaLaw Review60 (1974): 961-63; Richard H. Fallon Jr.,"To Each According to His Ability,fromNone Accordingto His Race: The Concept of Merit in
the Law of Antidiscrimination,"
BostonUniversity
Law Review60 (1980): 864-76. If in
factthe ends of highereducation cannot be advanced byanyselectioncriteria,a most
unlikelyhypothesis,then a lotterymay perhaps be the fairestprocess of admission.
32. Jean Piaget,TheMoralJudgment
oftheChild,trans.Marjorie Gabain (New York, 1948),
366.
Introduction:AfterBakke
11
33. The argumentof thisand the subsequent two paragraphs is fullydeveloped in Post,
Constitutional
Domains,134-96.
34. Thomas Keenan, "Windows: of Vulnerability,"
in Bruce Robbins, ed., The Phantom
PublicSphere(Minneapolis, Minn., 1993), 133.
35. Carroll D. Clark,"The Concept of the Public,"Southwestern
ScienceQuarterly
13 (1933):
311-15. See RobertE. Parkand ErnestW. Burgess,Introduction
totheScienceofSociology
inLifeand Society
(Chicago, 1924), 254; KennethEwartBoulding, TheImage:Knowledge
(Ann Arbor,1956), 137-47.
The Origins,Grammar,
and
36. Alvin W. Gouldner, TheDialecticofIdeologyand Technology:
FutureofIdeology(New York, 1976), 98.
344 U.S.
37. For a classicand eloquent statementof thisposition,see Wiemanv. Updegraff,
183, 194 (1952) (Frankfurter,
J., concurring).
12
REPRESENTATIONS