enforcement. Justice Frankfurter, in particular, was deeply concerned about this issue. He felt there would be nothing worse the Court could do than to announce boldly the lofty principles of racial justice and then reveal itself impotent to effect any practical results consequent upon its an
nouncement. The concern of Frankfurter and the other justices may well have been motivated by two closely related considerations. The first, and most obvious, consideration would be to save the Court from looking ridic
ulous. The second consideration would be that institutions that appear ridiculous by overreaching themselves are thereby rendered incapable of achieving reforms that they might otherwise have been able to bring about.
Thus there is at times a connection between an organization’s image and its ability to promote moral values. This proposition is, of course, quite obvious for the simple reason that there is a connection between an organi
zation’s image and its ability to do anything at a ll-m o r a l, immoral, or amoral. The proposition is highlighted here to serve as a reminder that an organization’s concern with its self-im age—at least to the extent of not appearing absurd—can be freighted with moral values. Concerns about
’’saving face” are not necessarily motivated by narrow self-interest alone.
Can you apply this principle in a concrete way to government organizations with which you are familiar ?
In the aftermath of Brown, the Court rejected two extreme alterna
tives in formulating an enforcement policy. For the reasons discussed in the previous paragraph, it did not order the immediate desegregation of all school districts forthwith. Nor did it fashion an order granting relief only to the litigants of Brown and its companion cases. The Court could have taken this very cautious approach, but this would have forced black children in segregated states to undertake the time and expense of initiating law
suits to secure what the Court had already announced as their constitutional rights.
Instead, the Court called for further argument on the enforcement issue and diplomatically invited the attorneys general of the states requir
ing or permitting segregation to submit briefs representing their view
points. Oral argument was heard in April 1955, and at the end of the following month the Court issued its decree. After rehearsing the history of the case. Chief Justice Warren gave the following directives:
Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local condi
tions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal.
126 Equality Accordingly, we believe it appropriate to remand the cases to those courts.
In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been charac
terized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.
To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider prob
lem s related to administration, arising from the physical condition of the school plant, the school transportation system, personnel,
revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also con
sider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondis- criminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.
The judgments below are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondisc riminatory basis with all deliberate speed the parties to these cases. . . . ^^
To put the Court's decision in management term s, it opted for a strategy of decentralization and then delegated broad, discretionary author
ity to the district courts. It provided no timetable; neither the fixed date
for ending segregation requested by NAACP counsel Thurgood Marshall nor the ninety-day deadline for school boards to file a desegregation plan suggested by the Justice Department. The only temporal admonition the Court offered was that the school districts get on with the work of desegre
gation ”with all deliberate speed. ” The phrase was borrowed from Francis Thompson's poem "The Hound of H e a v e n . T h e selection was an apt one for subsequent events revealed that the black children seeking admission to previously all-white schools would need patience approaching the divine. Ten years after Brown less than 2 percent of the black children residing in the eleven states of the Confederacy were going to schools with white youngsters.
It would be unfair to blame the Court for this dismal record. The other two branches of government indulged in unconscionable foot-dragging for many years after Brown. Eventually Congress passed important legis
lation in the areas of civil rights and education. Pursuant to this legislation, the Department of Health, Education, and Welfare in the late 1960s threatened to suspend federal education aid to segregated school districts. This broke the logjam, and the school boards of the South started to implement Brown in a serious way. By 1973 over 46 percent of the black children in the states of the Confederacy were attending predominantly white schools. No other section of the nation could boast of such an impressive record of integration.
What lessons might be drawn from all this for our purposes? The comforting thought that time heals all? The critical position that the Court was excessively concerned with not overreaching itself and conse
quently fashioned too lenient a decree? The constitutional reflection that causes of high moral purpose need the cooperation of all three branches of government? The economic observation that money talks—southern school boards stalled until threatened with monetary reprisals? The prudential consideration that one must be ’’sensitive” to varying moral climates in different parts of the country and that this ’’sensitivity" is, after all, a concomitant of federalism? The unbending stance that it is simply inde
fensible to delay the enforcement of constitutional rights in certain parts of the country because of the likelihood of resistance?
Loving V. Virginia
If in 1954 the Court was willing to extirpate racial segregation in public schools only "with all deliberate speed,” by the late 1960s the mood of both Court and nation was such that a broader condemnation of racism was in order. A Virginia antimiscegenation statute provided an opportunity for the Supreme Court, in Loving v. V i r g i n i a , to issue one of its most unequivocal statements on racial discrimination.
In 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia
128 Equality and returned to Virginia to establish their home in Caroline County. The following year they were convicted of violating a Virginia statute forbidding
’’any white person [to] intermarry with a colored person or any colored person [to] intermarry with a white person.” The same statute forbade such persons to leave the state for the purpose of being married with the intention of returning to Virginia and cohabiting therein. At their trial the Lovings pleaded guility and were sentenced to one year in jail. The trial judge suspended the sentence on the condition that the Lovings leave Virginia and not return for twenty-five years. For the edification of all concerned, the judge felt obliged to explain the wisdom of Virginia’s pro
hibition of racially mixed marriages. To this end, he added the follow
ing gloss on the Book of Genesis:
Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the inter
ference with his arrangement there would be no cause for such mar
riages. The fact that he separated the races shows that he did not intend for the races to mix.^^
The Lovings moved to the District of Columbia and in 1963 filed a motion with the trial court to set aside their sentence on the ground that the statutes they had violated were unconstitutional. The motion was denied, and, upon appeal, Virginia’s Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statute. The Lovings then appealed to the Supreme Court of the United States. Chief Justice Warren delivered the opinion of the Court:
[T]he State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Fram ers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.
Because we reject the notion that the mere ’’equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's conten
tion that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, . . . or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse. . . . In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. . . ,
The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U.S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute for
bidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated "Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.” . . . As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Four
teenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. . . .
There can be no question but that Virginia's miscegenation stat
utes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by mem
bers of different races. Over the years, this Court has consistently repudiated ”[d]istinctions between citizens solely because of their ancestry” as being "odious to a free people whose institutions are founded upon the doctrine of equality.” . . . At the very least, the
130 Equality Equal Protection Clause demands that racial classifications, especial
ly suspect in criminal statutes, be subjected to the ’’most rigid
scrutiny,” . . . and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two mem
bers of this Court have already stated that they ’’cannot conceive of a valid legislative purpose . . . which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” . . .
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of m eas
ures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Pro
tection Clause.
Although this case involved criminal penalties, the Court applied the same standard in subsequent civil cases as we 11—that ”the clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.”
Do you find this statement adequately reflects your own views ? Do you find the use of the word ’’invidious” redundant? That is , can there be racial discrimination that is not invidious? This raises the same issue we saw in Yick Wo v. Hopkins: Is ’’benign” racial discrimination possible?
Do you think the Court used the word ’’invidious” to leave open the pos
sibility of some sort of benign racial discrimination? If this was the Court's intention, the use of ’’invidious” is not altogether appropriate. In terms of formal logic, the obverse of invidious is "noninvidious.” ”Non- invidious” is not synonymous with ’’benign.” The former is a broader term than the latter because logically it includes ’’neutral” as well as ’’b en ign .”
Despite the niceties of formal logic, does it make any sense to speak of discrimination that is neutral? Is ’’neutral discrimination” a contradiction in term s? Is all discrimination necessarily either invidious or benign?
Indeed, is it appropriate to speak of benign discrimination at all? If we treat people differently on the basis of race out of a benign motivation, is it best to avoid the word ’’discrimination” altogether? If so, what should we call such treatment?
A careful self-examination of just how we use words can be a useful exercise in gaining self-knowledge. Judges are frequently constrained in their use of language because their decis ions usually follow established
precedents and at times create new ones. Professional proprieties demand adherence to certain terms of art. While this adherence has the whole
some effect of conferring stability on our legal institutions, it can also have the less happy effect of stultifying ideas. Words are symbols and, as such, point to, but do not exhaust, the richness of our thoughts. For pro
fessional reasons, judges must at times rest content with repeating conse
crated phrases from the past that do not precisely convey their personal beliefs. As individuals, however, we are not so constrained. We can and should express our thoughts as clearly as language will allow.
How would you state your own views on when, if ever, and under what circumstances, if any, an American government (national, state, or local) could be morally justified in treating people differently on the basis of race alone?22
Regents of the University of California v. Bakke
The series of questions we have just addressed brings us to the trouble
some topic of affirmative action. Here the leading case is Regents of the University of California v. Bakke. Affirmative action is troublesome because, despite its intuitive appeal on the grounds of "playing catchup," it is vulnerable at the more serious level of moral and constitutional prin
ciple. The heart of the problem is the principle announced by Justice Powell in Bakke. "It is settled beyond question that the ^rights created by the first section of the Fourteenth Amendment are, by its term s, guaran
teed to the individual. The rights established are personal rights.^
The equal protection clause protects individual persons, not groups: "No state sh a ll. . . deny to any person within its jurisdiction the equal protec
tion of the laws."
Affirmative action is fundamentally at odds with this principle. One cannot make any sense out of a public policy of affirmative action imless one is willing to think of persons as members of racial groups rather than simply as individuals. Such thinking, however, is bound to put pressure on the values that underlie the equal protection clause. And yet, as a prac
tical matter, it is not likely that members of racial groups that have been discriminated against historically will improve their lot dramatically with
out receiving the kind of massive support that is usually associated with political efforts to help groups as opposed to individuals. Let us see what help we can glean from the Bakke case in thinking about this intractable issue.
Bakke begins and ends with administrative discretion. It began when the Department of Health, Education, and Welfare promulgated a contro
versial regulation under the Civil Rights Act that would permit a govern
ment agency, like a state university, to initiate voluntary affirmative action programs even though the agency itself had no history of discrimination.
132 Equality Pursuant to this regulation, the faculty and administration of the medical school at the University of California at Davis (UC-Davis) took it upon them
selves to develop a special admissions program ”to increase the represen
tation of ^disadvantaged^ students in each medical school class." The case ended on the desk of the schooUs admissions officer, who had been told by the Supreme Court that he could continue to administer the affirmative action plan, but that he must do so without relying on the rigid quotas for minorities that had been part of the original plan. As the Court put it, the race of an applicant could be considered as "a plus,” but specific slots in the incoming classes could not be reserved for minorities alone. Just what this flexible standard would mean in practice would be a matter for the admissions officer to decide. As Philip Kurland, a noted constitutional scholar, observed, ”The Bakke decision leaves much discretion to admis
sions officers to determine how they may secure whatever diversity they deem appropriate for their student bodies without resting solely on racial categories. ”
Allan Bakke was a white applicant for admission to the UC-Davis medical school. His application was rejected even though his test scores and grades were higher than those of most of the minority applicants who had been admitted. Under the UC-Davis affirmative action plan, there were two admissions tracks for the one hundred students who would be ad
mitted to medical school each year. One track, with eighty-four seats, was open to applicants of all races. The other track, with sixteen seats, was open only to "Blacks,” "Chícanos," "Asians," and "American Indians.
As far as the second track was concerned, whites "need not apply." It was this rigid quota that the Supreme Court struck down without, however, pro
hibiting the university from taking race into consideration as "a plus" in evaluating future admissions.
The Supreme Court’s handling of the case was unusual because of the extraordinary importance of one justice—Lewis Powell. Four justices (Brennan, Marshall, Blackmun, and White) would have upheld the UC-Davis plan—quotas and all. For these justices the plan violated neither the Civil Rights Act of 1964 nor the equal protection clause of the Fourteenth Amend
ment. Four other justices (Stevens, Rehnquist, Stewart, and Chief Justice Burger) found the plan in violation of Title VI of the Civil Rights Act. For them there was no need to reach the equal protection clause of the Consti
tution. On statutory grounds alone, Allan Bakke should be admitted to medical school. Justice Powell stood astride these two blocks of four jus
tices. To the conservative bloc that found the quotas in violation of the Civil Rights Act, he added his own opinion that it violated the equal protec
tion clause. Thus there were five votes to support the conclusion that the quota deprived Allan Bakke of his right (statutory or constitutional) to be admitted to the UC-Davis medical school. Although Powell rejected the liberal bloc’s acceptance of the quota, he supported its position that a uni- versily may take race into consideration in deciding to admit an applicant.
Thus there were five votes in support of affirmative action, provided no quotas were involved. PowelVs opinion was a judicial tour de force. He got Allan Bakke into medical school and still upheld the constitutionality of affirmative action as long as no quotas were involved. As commentator Kenneth L. Karst has noted, the "press hailed Justice Powell’s opinion as a judgment of S o l o m o n . T h e press paid less attention, however, to the fact that by singling out quotas as the chief offenders in an affirmative action plan, Powell replaced hard-and-fast rules (strict numerical quotas) with enhanced administrative discretion (race can be taken into consideration as
"a plus"). Plus what? This would be determined administratively. If an admissions officer or a faculty committee should give a "big plus" to race, the affirmative action program would be vigorous and effective, and, in practice, could achieve results comparable to those that might have been achieved under the ill-starred quotas. If the plus is quite small, the affir
mative action program could provide a convenient rationale for tokenism whereby a university solemnly proclaims its "sensitivity" to the needs of minorities but admits precious few of them.
For our purposes, the most interesting aspect of Powell’s opinion was the way in which he struggled to find a reason to justify a public policy that was politically attractive but constitutionally suspect. Bureaucrats often find themselves in a somewhat similar position, but for them the politically attractive option is morally—rather than constitutionally—suspect.
By "suspect," I do not mean something that is absolutely prohibited, but rather something one would rather just not do. It is the sort of thing we have in mind when we say: "I don’t know; I just don’t feel right about it."
Or: "There’s something here that just isn’t quite right." For example, a law enforcement officer might lie in order to foil a kidnapper or a terrorist, but he knows that lying is morally suspect. It is suspect even if one’s pur
pose is as useful as rescuing a kidnapper’s hostage.
In our example, the law enforcement officer believes that it is wrong to lie, but he also believes that there are certain circumstances that might justify lying. His position is quite different from that of a person who believes that lying is wrong regardless of circumstances. For such a per
son lying is not morally suspect; it is absolutely prohibited, regardless of what good results it might bring about.
Justice Powell’s opinion in Bakke presents an instructive parallel between legal and moral reasoning in a situation in which the judge believes he is being called upon to decide whether a politically attractive end (in
creasing the number of minority physicians) can overcome the presumption against a constitutionally suspect means (admitting students on the basis of race). I use the language of ends and means to highlight the parallel between legal and moral reasoning. It is also important to recall that we are dealing with a means that is suspect as opposed to being absolutely prohibited. If the means were absolutely prohibited, then the problem would be solved by invoking the moral principle that the end does not justify
134 Equality the means. This familiar principle definitively resolves only those prob
lems in which a person believes that a certain means is wrong regardless of circumstances.
Before examining Justice PowelUs reasoning, it is necessary to review some basic principles of constitutional analysis. In our discussion of the Loving case above, we saw that Chief Justice Warren drew a dis
tinction between classifications of persons based on race and other types of classifications—for example, "a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc, v. New York, . . . or an exemption in Ohio’s ad valorem tax for merchandise owned by a non-resident in a storage warehouse, Allied Stores of Ohio Inc, v. Bowers.” Warren is suggesting here what some commentators once called a ”two-tier theory” of equal protection. What this means is that the Court applies two different types of "tests” to state action challenged on equal protection grounds. The appropriate test is selected on the basis of the tyipe of classification created by the state. For example. New York City forbade the operation in its streets of motor vehicles displaying advertisements of any business other than the products of the owner of the vehicle. Railway Express Agency contested this ordi
nance on the grounds that the equal protection clause prohibits discrimina
tion in favor of vehicles carrying advertising of their owners’ products as opposed to vehicles, like those of Railway Express, that advertise the prod
ucts of other companies. The Supreme Court "tested” the New York City ordinance by finding a ’’reasonable relation” between the challenged classi
fication and the city’s interest in promoting public safety in its thorough
fares. Thus, the test of reasonablenesses a relatively easy one for the states to pass; it is the standard by which the courts judge and usually approve state regulations of business and economic interests. Classifica
tions based on race, however, must pass a far more severe test than mere reasonableness. As Chief Justice Warren stated in Loving, where racial classifications are involved, ”we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. . . . In the case at bar . . . we deal with statutes containing racial classifications, and the fact of equal applica
tion does not immunize the statute from the very heavy burden of justifica
tion which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." Race is a suspect classification and, hence, is subject to "strict judicial scrutiny," which requires that the state show some "compelling state interest" to justify the classification.
Strict judicial scrutiny requires the state to show more than a reason
able relationship to a legitimate state interest. The state’s interest must be "compelling” to justify the use of a "suspect classification." The state must also show that there is "no alternative means” to achieve its com
pelling interest other than the suspect classification. The "no alternative means” test demands much more from the state than the somewhat relaxed
test of mere reasonableness. The reason the courts impose this more dif
ficult test upon the state is precisely because the state has chosen to use a suspect classification.
This pattern of analysis extends beyond the equal protection clause.
As we shall see in the next chapter, the Supreme Court uses the same struc
ture of analysis in cases involving "fundamental rights," such as speech, p ress, and religion. For example, the First Amendment guarantees the free exercise of religion, but there are certain kinds of religious practices that the state may prohibit—e. g . , handling poisonous snakes or refusing to allow a blood transfusion for one^s mortally ill child. State intervention in these areas clearly compromises the free exercise of religion, but the Court will uphold such intervention if it finds that the intervention is justi
fied by a compelling state interest and that there is no alternative means available to the state to protect this interest.
The actual wording of the test will vary somewhat from case to case.
"Compelling state interest" is no talisman. The Court may speak of
"paramount" or "substantial” interests instead, and it may substitute
"least restrictive means" for "no alternative means.” It is the structure of the analysis rather than the words that are important for our purposes in looking for analogies between legal and moral reasoning. Our focus centers on how the Court decides whether certain circumstances permit the state to engage in activities that are "suspect" but not absolutely prohibited.
Let us now return to Justice PowelFs opinion in Bakke to see how he decided whether circumstances justified the UC-Davis decision to insert suspect, racial criteria into its admission policies. Powell begins his quest for a compelling state interest by listing the four reasons given by the uni
versity to support its affirmative action plan:
The special admissions program purports to serve the purpose of:
(i) "reducing the historic deficit of traditionally disfavored minorities in medical schools and the medical professions"; . . . (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved;
and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classi
fication.
Having summarized the university's four reasons for its race-based admissions policy, Justice Powell proceeded to examine them one by one.
The first of the reasons given above he rejects out of hand:
If petitioner's [Regents of the University of California] purpose is to assure within its student body some specified percentage of a par
ticular group merely because of its race or ethnic origin, such a
136 Equality- preferential purpose must be rejected not as insubstantial but as faci
ally invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.
This the Constitution forbids. Loving v. Virginia, . . . Brown v.
Board of Education,
The second reason given by the imiversity was to counter the effects of societal discrimination. Powell takes this reason more seriously than the first but ultimately rejects it as well. He rests his argument on a dis
tinction between the amorphous concept of a history of "societal discrimina
tion” against minorities and specific examples of discrimination based on legislative, administrative, or judicial findings:
The State certainly has a legitimate and substantial interest in ameli
orating or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commit
ment of the judiciary to affirm all lawful means towards its attainment.
In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past.
We have never approved a classification that aids persons per
ceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. . . . After such findings have been made, the governmental interest in pre
ferring members of the injured groups at the expense of others is sub
stantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent per
sons competing for the benefit. . . .
Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formu
lation of any legislative policy or the adjudication of particular claims of illegality. . . .
Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrim i
nation" does not justify a classification that imposes disadvantages upon persons like respondent [Bakke] who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to confer a
remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved.
Although this section of Powell’s opinion is unfavorable to the univer
sity, there is a glimmer of hope of constitutional support for some kind of race-conscious public policies. Powell faults the university for relying on
’’societal discrimination” as opposed to specific findings of discrimination.
As a matter of fact, there was no evidence of discrimination by the Univer
sity of California at Davis, but Powell’s line of reasoning would seem to support an affirmative action program in an institution that had had a history of discriminatory admission practices in the past. The clear implication of Powell’s argument is that the Constitution is not color-blind where spe
cific remedies for specific wrongs are in order.
Do you agree with Powell that race-conscious decisions should be confined to righting specific wrongs rather than correcting the effects of societal discrimination? Before answering this question, recall that Powell does not deny that there really has been societal discrimination against certain minority races. He does not say societal discrimination is a chimera; he merely finds it an inadequate justification for an affirmative action program.
The university’s third reason for its affirmative action program was to increase ’’the number of physicians who will practice in communities currently underserved.” Justice Powell regarded this reason more favor
ably than the other two: ”It may be assumed that in some situations a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification.”^2i This was the good news for the University of California. The bad news followed immedi
ately: ”But there is virtually no evidence in the record indicating that peti
tioners’ special admissions program is either needed or geared to promote that goal [of improving the delivery of health care services to communities currently underserved. ] ”22j Powell went on to cite the opinion of the Supreme Court of California, which had heard this case before it was ap
pealed to the Supreme Court of the United States. The California court noted that the university could give no assurance that the students admitted under the affirmative action program would ever practice medicine in minority communities. The court held that ”there are more precise and reliable ways to identify applicants who are genuinely interested in medical problems of minorities than by race.”22k Thus the university failed the
”no alternative means” test. Even if there is a compelling state interest in improving the health care in minority communities, there are other ways of providing this care without relying on an admissions policy based on race.
138 Equality Do you find this position realistic? How likely is it that minority physicians will return to their own communities to practice medicine? Sup
pose the university required minority students entering medical school under the affirmative action program to sign an agreement to accept a four-year assignment in a "minority hospital" as defined by a committee of the medical school faculty ? Would this be an improvement or would it make a bad situation worse? Would each minority physician be sent to his or her own particular minority group? Chicanos to Chic anos, blacks to blacks, and Oriental to Orientals? Suppose there were more than enough Oriental physicians but not enough Chicano physicians. Would the Oriental physici
ans be sent to a Chicano hospital?
Isn^t there something offensive in this whole line of reasoning? Is the fundamental flaw the assumption that somehow physicians are better at taking care of patients who share their racial heritage? Is such an assump
tion an affront to the integrity of the medical profession? Would it be less offensive if the assumption were reshaped along linguistic rather than racial lines? Are Spanish-speaking doctors better at caring for Spanish
speaking patients than doctors who speak no Spanish? If so, what about a white "Anglo" doctor who is fluent in Spanish? Should he or she be pre
ferred to a Spanish-surnamed physician who speaks no Spanish at all?
Needless to say, the questions go on and on. Is an Oriental simply an Oriental or should a distinction be drawn on linguistic grounds between those of Japanese and, say, Chinese ancestry? Are such nasty questions endemic to the affirmative action issue or are there ways of avoiding such questions without abandoning the quest for a principled defense of affirma
tive action?
The fourth and final reason proffered by UC—Davis in support of its affirmative action plan was that it would enable the medical school to obtain "the education benefits that flow from an ethnically diverse student body." Justice Powell accepted this reason as meeting the compelling state interest standard.
The atmosphere of "speculation, experiment and creation"—so essen
tial to the quality of higher education—is widely believed to be promoted by a diverse student body. As the Court noted in Keyishian, it is not too much to say that the "nation’s future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples.
Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.
It may argued that there is greater force to these views at the undergraduate level than in a medical school where the training is cen
tered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, . . . the Court made a similar point with specific reference to legal education:
The law school, the proving groimd for legal learning and prac
tice, cannot be effective in isolation from the individuals and insti
tutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.
Physicians serve a heterogenous population. An otherwise qualified medical student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school of medicine experiences, outlooks and ideas that
enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.221
Having found a compelling state interest in a diverse student body.
Justice Powell went on to see whether the UC-Davis program had ”no alter
native means” for achieving this end other than by setting aside sixteen of one hundred seats for minorities. The university's rigid quota failed this test, and therefore its plan was unconstitutional, and therefore the university was ordered to admit Allan Bakke. Thus Bakke won his case. Justice Powell softened the blow to affirmative action, however, by approving an admissions policy that would take race into consideration as one of several admissions criteria. Thus the constitutional villain of the piece was the university's quota but not its willingness to take race into consideration when deciding whom to admit to its medical school.
Bakke was but the first in a long string of affirmative action cases that have dotted the constitutional landscape in the past decade. Not all of these cases can be easily squared with PowelPs opinion in Bakke. Never
theless, Powell succeeded in identifying the important questions that the court would ask and continues to ask to the present day: quotas, race as a plus, societal discrimination, the need for formal findings of discrimination, and remedies for specific wrongs. These remain the salient themes in the ebb and flow of judicial support for affirmative action.
For our purposes, the most important aspect of Powell’s opinion is that he provided a case study in how one man reached a decision that enabled him to support a politically attractive policy that was constitutionally sus
pect. If we apply the analytical techniques of the ”compelling state interest”
and ”no alternative means” tests to administrative situations, we will have
140 Equality the beginnings of a framework for analyzing those difficult ethical problems that bedevil serious bureaucrats when they struggle to decide whether they should take an action that is morally "suspect" even though it is not abso
lutely wrong. Perhaps we could begin to develop a " compelling agency interest" test.
SEX
From a constitutional point of view, there are some important sim ilarities between discrimination based on race and discrimination based on sex.
During the 1970s, one of the most important issues in the area of sex dis
crimination was whether the Court would find that sex, like race, was a
"suspect classification." Such a finding would make it extremely difficult for government at any level to justify treating persons differently because of their sex. As we saw in our discussion of Bakke, suspect classifications trigger "strict judicial scrutiny" of government action. So strict is this scrutiny that legal commentators are fond of quoting the maxini that it is
"strict in theory and fatal in fact." Although several Supreme Court Justices have held that classifications based on sex are suspect, there has never been a majority opinion of the Court to support this proposition.
Long before the Court was interested in questions of suspect classi
fication and strict scrutiny, the issue of sexual discrimination was presented for its considered judgment in Bradwell v. Illinois, ^^ an 1873 case dealing with the constitutionality of the refusal of the state of Illinois to license women to practice law. The Court rejected the challenge and added a few gratuitous reflections that might allow us to call Bradwell the Dred Scott of women’s liberation:
The civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protection and defender.
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.
Frontiero v. Richardson
Decisions rendered by the Supreme Court in recent years have retired
Bradwell to the status of a quaint relic of the distant past. In Reed v. Reed,^^
the Court struck down an Idaho probate statute that systematically preferred
a male to a female as the administrator of an estate when both were of an equal degree of consanguinity to the deceased—-e. g . , sons were preferred to daughters, fathers to mothers, uncles to aunts, and so on. More important than the outcome of Reed, however, was the rationale of the decision. This proved somewhat problematic, as the Court was to discover two years later, when four justices interpreted Reed as having defined sex as a suspect classification while three others—including Chief Justice Burger who had written the Reed opinion—denied the Court had said any such thing. The case that occasioned this split, Frontiero v. Richardson, involved a female lieutenant in the United States Air Force, Sharron A. Frontiero, whose civilian husband was denied dependency status for the purpose of obtaining increased quarters allowances as well as certain medical and dental benefits. Under the statute challenged by Frontiero, a serviceman could claim his wife as a dependent "without regard to whether she is dependent upon him for any part of her support." A servicewoman, how
ever, could not claim her husband as a dependent unless he was in fact dependent upon her for over one-half his support. Joseph Frontiero was a full-time student with monthly expenses of $354. Because he received $205 per month in veterans^ benefits from his own previous military service, he did not qualify as his wife^s dependent. Had the roles been reversed, that i s , if Joseph had been on active duty and his wife had been a full-time stu
dent, she would have automatically qualified as his dependent regardless of whatever other income she might have had. The Supreme Court agreed unanimously that this arrangement was unconstitutional. Four of the Justices
(Brennan, Douglas, Marshall, and White) found in Reed "at least implicit support" for declaring sex a suspect category. In the light of this finding, the air forceps contention that the discriminatory treatment was instituted for administrative convenience was easily defeated. In a concurring opinion.
Justice Powell, joined by Justice Blackmun and Chief Justice Burger, up
held Frontiero ^s position but disagreed that sex was a suspect category.
I agree that the challenged statutes constitute an unconstitutional dis
crimination against service women in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr.
Justice Brennan, which would hold that all classifications based upon sex, "like classifications based upon race, alienage, and national origin," are "inherently suspect and must therefore be subjected to close judicial scrutiny." It is unnecessary for the Court in this case to characterize sex as a suspect classification with all of the far- reaching implications of such a holding. Reed v. Reed, which abun
dantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed and reserve for the future any expansion of its rationale.
142 Equality Although Powell was unwilling to classify sex as a suspect category, he did not say that gender-based distinctions could be justified by the relaxed rule of mere reasonableness alone. Instead, he found in Reed suf
ficient authority to strike down the air force regulation without telling us exactly how he interpreted Reed. Whatever it was the Court had said in Reed, it was enough to uphold Frontiero's claim. By refusing, on the one hand, to find sex a suspect classification and by refusing, on the other, to declare the air force’s policy unreasonable. Justice Powell upset the tidy scheme of the two-tier approach to equal protection. He seemed to be say
ing that classifications based on sex were somewhere between the two tiers—more suspect than classification by type of motor vehicle and less suspect than classification by race. Justice Powell justified his adherence to this muddled middle as follows:
There is another, and I find compelling reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which, if accepted, will resolve the substance of our precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seem s to me that this reaching out to pre
empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.
Justice Powell’s point here is that if the Court should consider sex a suspect classification, it would be extremely difficult for the states or the United States to justify any form of discrimination based on sex. Hence, the Court would settle by judicial interpretation a very substantial part of the precise point that was at issue in the state legislatures that were debating the Equal Rights Amendment. Does Powell’s restraint have any parallel in the administrative process? Are there times when it is wise to avoid settling certain issues under consideration by other agencies or institu
tions even though one’s own agency could take definitive action? What about times of presidential (or gubernatorial) transitions? Can you think of any agency with which you are familiar that deliberately left an import
ant policy unsettled until President Reagan had replaced President Carter, or President Carter had replaced President Ford, or President Nixon had replaced President Johnson? Conversely, can you think of any policies that agency personnel rushed to ’’lock in" before a new president
(or governor) took over? Is there any principled rule you could formulate on the propriety of not using an agency’s power in a value-laden issue out of a sense of deference to the outcome of the electoral process ?
Kahn v. Shevin
Kahn v. S h e v in ^ centered on a Florida statute that provided for widows an annual property tax exemption of $500. Mel Kahn, a widower, applied for this exemption to the Dade County Tax A ssesso r’s Office. When his request was denied, he sought a declaratory judgment in the circuit court for Dade County that the statute violated the equal protection clause of the Fourteenth Amendment. Kahn’s position was upheld in the circuit court but this decision was reversed by the Florida Supreme Court. The court found ’’the classification valid because it has a ’fair and substantial rela
tion to the object of the legislation,’ that object being the reduction of ’the disparity between the economic capabilities of a man and a woman.’ ” Kahn appealed to the Supreme Court of the United States.
The opinion of the Court was delivered by Justice Douglas.
There can be no dispute that the financial difficulties confronting the lone woman in Florida or in any other State exceed those facing the man. Whether from overt discrimination or from the socialization process of a male dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs. . . . The disparity is likely to be exacerbated for the widow. While the widower can usually continue in the occupation which preceded his spouse’s death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer. . . .
This is not a case like Frentiero v. Richardson, where the Gov
ernment denied its female employees both substantive and procedural benefits granted males ’’solely for administrative convenience.” . . . [emphasis in original]. We deal here with a state tax law reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a dispropor
tionately heavy burden. We have long held that ’’[wjhere taxation is concerned and no specific federal right, apart from equal protection, is imperilled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” . . . A state tax law is not arbitrary although it ”dis- criminatefs] in favor of a certain class . . . if the discrimination is founded upon a reasonable distinction, or difference in state policy,”
not in conflict with the Federal Constitution. . . . This principle has weathered nearly a century of Supreme Court adjudication, and it applies here as well. The statute before us is well within those limits.
144 Equality In a footnote to his opinion, Justice Douglas pointed out, quite cor
rectly, that ''gender has never been rejected as an impermissible cla ssifi
cation in all instances." What he failed to explain, however, is why he had joined Justice Brennan^s opinion in Frontiero, which found sex to be an inherently suspect classification. He distinguished the present case from Frontiero on the ground that the latter dealt "solely" with questions of administrative convenience. Although this is true, it does not explain why Douglas found sex a suspect classification in Frontiero but not in Kahn.
Following the logic of their position in Frontiero, Justices Brennan, Marshall, and White dissented in Kahn. They did so, however, on som e
what different grounds. First let us consider Brennan's dissent in which he was joined by Marshall:
In my view . . . a legislative classification that distinguishes poten
tial beneficiaries solely by reference to their gender-based status as widows or widowers, like classifications based on race, alienage, and national origin, must be subjected to close judicial scrutiny, because it focuses upon generally immutable characteristics over which individuals have little or no control, and also because gender-based classifications too often have been inexcusably utilized to stereotype and stigmatize politically powerless segments of society. . . , The Court is not therefore free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves over
riding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible less drastic means. While, in my view, the statute serves a compelling governmental interest by "cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a dispro
portionately heavy burden,” I think that the statute is invalid because the State's interest can be served equally well by a more narrowly drafted statute.
Gender-based classifications cannot be sustained merely because they promote legitimate governmental interests, such as efficacious administration of government. . . . But Florida's justification of
§ 196.191 (7) is not that it serves administrative convenience or helps to preserve the public fisc. Rather, the asserted justification is that
§. 196.191 (7) is an affirmative step toward alleviating the effects of past economic discrimination against women.
I agree that, in providing special benefits for a needy segment of society long the victim of purposeful discrimination and neglect, the statute serves the compelling state interest of achieving equality for such groups. No one familiar with this country's history of pervasive sex discrimination against women can doubt the need for remedial
