Vol. 11 No. 1 (January 2001) pp. 31-34.

THE BAKKE CASE: RACE, EDUCATION AND AFFIRMATIVE ACTION by Howard Ball. Lawrence, Kansas: University of Kansas Press, 2000. 248 pp. Cloth $29.95. ISBN: 0-7006-1045-6. Paper $ 12.95. ISBN: 0-7006-1046-4.

Reviewed by Timothy J. O'Neill, Department of Political Science, Southwestern University.

Few topics spark as much controversy in the typical undergraduate American Politics course as affirmative action. Although the policy is now thirty-five years old, it still guarantees impassioned debate. Howard Ball seeks to bring some reason and facts to this passion by writing a fair and clear-headed account of the landmark case of REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE (1978).

THE BAKKE CASE is a case study of affirmative action presented in the facts, law and politics of BAKKE. Ball's analysis of this special case permits him to describe and explain the dynamic of judicial policymaking in America. It also permits him to summarize the key arguments for and against affirmative action, to write briefly on the politics of interest group litigation and coalition building in the Supreme Court, to teach key legal concepts such as certiorari, and to describe the legacy of affirmative action in higher education. Ball ends by asking and answering at least in part whether affirmative action has achieved diversity in higher education and what its future is at the dawn of a new millennium.

THE BAKKE CASE is more than the story of Allan Bakke's efforts to gain admission to the University of California, Davis Medical School. It is a story about the unmet promises of the early civil rights era. The conviction that a color-blind policy would overcome the effects of racial discrimination animated the early civil rights movement. Remove the stigma of public racism and the plight of blacks and other minorities would disappear. The passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act seemed to accomplish this aim. By the late sixties, however, it became clear that racially neutral programs of nondiscrimination failed to guarantee equal opportunity in higher education.

By the 1970s affirmative action programs were common in higher. Legal suits challenging such programs as "reverse discrimination" were also common. The controversy over affirmative action seems to pose a choice between two unpalatable alternatives. Endorsing race or ethnic conscious programs may further legitimize these characteristics as means to apportion benefits and burdens in American society. Rejecting such programs on a "color-blind" principle may condemn minorities to a continued status as an underclass.

Opponents of preferential treatment in higher education assert that the Fourteenth Amendment's guarantee of equal protection is unequivocal. The declaration that "No State shall. . .deny to any person within its jurisdiction the equal protection of the laws" rejects racial or ethnic ancestry as a relevant basis for awarding a government

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benefit. Moreover, they argue, the 1964 Civil Rights Act requires that individual, not group- based, attributes be the only permissible factor when governmental or private goods or opportunities are dispersed. Opponents also invoke policy arguments. Preferences tend to reward the most advantaged members of the targeted groups while hurting the least advantaged members of the nonpreferred groups, creating an unjust form of compensation. Preferences also stigmatize minorities as inferior since they may be seen to succeed not through merit but through gift. Finally, opponents fear that preferences encourage racial and ethnic identities as a means to win social goods and services, "Balkanizing" rather than uniting the nation.

Supporters of affirmative action argue that the Fourteenth Amendment and the Civil Rights Act permit carefully tailored programs designed to overcome systemic discrimination. They further assert that preferential treatment produces significant social benefits that outweigh the harm inflicted on the supposed victims of reverse discrimination. It preserves social peace by establishing society's sensitivity to the plight of its minority citizens. It stimulates social mobility by providing role models who will inspire minority youths. It improves access to professional services such as medical and legal care by training minorities to serve traditionally undeserved communities. It enriches the marketplaces of goods and of ideas with a diversity of viewpoints, experiences, and interests. And it responds to the remedial spirit of the Reconstruction amendments, allowing government and private redress for past social wrongs.

Ball's sensitive reading of the public arguments of the parties, amici curiae and judges make these arguments come alive. However, the book's finest chapters are Five and Six. They detail the special role of the Solicitor General in Supreme Court litigation, the contributions of law clerks to the justice's decisions, the strategies of attorneys during oral arguments before the High Court, and the dynamics of Court opinion assignments and writing. Here we are privy to the behind the scenes story of Supreme Court decision making, one based on conference notes and memoranda from the Library of Congress and from Ball's interviews with several former and current Justices. We listen in on conference sessions, witness the machinations of contriving coalitions among nine stiff-necked justices. And so we become parties to the conflict, compromise, not so subtle manipulation, obstinacy, and generosity of a cobbled together opinion.

This narrative dispels myths about the Court, ones that are often repeated even in the best judicial process texts. The myth of a collegial body with a healthy, open-minded exchange of views leading to consensus is challenged by the reality of combat and warring positions.. The written rather than the spoken word is the preferred form of communication among the justices, and hastily written memos (like e-mail messages among college colleagues) can express intemperate views that would be hard to express in personal contact. The Supreme Court is composed of nine lonely justices whose interactions are largely confined to or mediated by their law clerks. The justices' plight is evocative of the complaints that members of Congress have become the managers of small enterprises rather than members of a deliberative body.

Ball's approach recognizes that social change, and resistance to change, is products of individuals acting in concert with and against one another. His portraits

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of the key players, Marco DeFunis, Bakke, the attorneys, and especially the justices, reveal how individual motives, interests and principles power politics, especially judicial politics, not disembodied "movements" and "causes." Ball also knows that social change is not like a person or a light bulb - it does not die out in a minute. There is something that goes beyond simple individual agendas. He weaves a story that reflects this complexity in only 200 pages.

Nor does Ball ignore the question "if not affirmative action, what else?" He offers evidence that affirmative action has achieved some level of diversity in American higher education, but he understands that the debate over affirmative action as a means to racial and ethnic inclusiveness has become a surrogate for a more profound difference over fundamental values and principles. And so he explores the recent challenges and alternatives to affirmative action in undergraduate education adopted in states such as California, Texas, and Florida. His evidence suggests that these alternatives may be more complex, more expensive, and somewhat less effective than a straightforward affirmative action policy. However, he acknowledges that the alternatives do work and may avoid some of the vitriol that has become commonplace on the topic. Although Ball never makes this step, his evidence and analysis could suggest that we can attain both social justice and social peace if we are creative.

Ball overlooks or underplays parts of his story that may be as interesting and as important as the parts he emphasizes. He offers a fine explication of the University of Washington's rationale behind its affirmative action program challenged in DeFUNIS v. ODEGARRD (1974). However, he offers no equivalent discussion of the University of California, Davis Medical School's faculty and their decision to adopt the affirmative action program challenged by Bakke. Apart from the laudatory goal of opening access to ethnic and racial minorities, the faculty appears to have spent little time considering the choice of 16 percent minority admissions as their target, what groups should be preferred, or how the costs of the program should be apportioned. He misses the battle fought within the Regents of the University of California over whether to appeal the California Supreme Court decision. He also writes as if the amici curiae groups were monolithic. There is no discussion of the internal battles with these groups, especially the ACLU, paralleling his terse but effective narrative of the divisions within the Carter Administration (pp. 72-77).

There are other unexamined topics that interest those of us who see the state judiciaries as important as the federal one. The Washington State Supreme Court overturned by a 6-1 decision a lower court's ban on affirmative action at the University of Washington Law School. Five years later the California Supreme Court upheld a lower court's ban on the University of California, Davis program by an identical 6-1 vote. Both courts were considered liberal in the seventies, both confronted similar fact situations, both drew upon the same constitutional principles and language, and yet they came to contrary results. Why? A discussion of these two courts in a comparative perspective might cast light on the variables of judicial decision making.

In brief, this is an accessible, often lively, retelling of one of the most controversial cases of the late twentieth century. It would be a good candidate for a Judicial Process course, a traditional Constitutional Law course, and even a

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standard Public Policy course focusing on judicial policymaking as a key policy process in America.


DeFUNIS v. ODEGAARD, 416 U.S. 312 (1974).


Copyright 2001 by the author, Timothy J. O'Neill.