"Bakke’s Case: Are Quotas Unfair?"
(Chapter 14 in Ronald Dworkin’s A Matter of Principle)


YES! RONALD DWORKIN, in standard type. The immediate goal of affirmative action programs is to increase the number of blacks and other minorities in the learned professions, but the long-term goal is to reduce the degree to which America is a racially conscious society. Applicants to professional schools have no constitutional right to be judged on merit, as individuals, or by race-neutral standards. However, every citizen has a constitutional right that he not suffer disadvantage, at least in the competition for any public benefit, because the race to which he belongs is the object of prejudice or contempt.

NO! Curtis Crawford, interspersed REBUTTAL in italics. Serious racial conflict is certainly inevitable if people are systematically excluded from the professions because of their race, or if any racial group feels entitled to a particular share in any profession. The best antidote to racial conflict and racial consciousness is the fundamental moral principle of Racial Nondiscrimination, resolutely applied. The widespread acceptance of this principle may be the greatest moral achievement of the 20th Century. Prof. Dworkin would foolishly replace it with a principle that permits, even requires, government to side with some racial and ethnic groups against others.


On October 12, 1977, the Supreme Court heard oral argument in the case of The Regents of the University of California v. Allan Bakke. No lawsuit has ever been more widely watched or more thoroughly debated in the national and international press before the Court's decision. Still, some of the most pertinent facts set before the Court have not been clearly summarized.

The medical school of the University of California at Davis has an affirmative action program (called the "task force program") designed to admit more black and other minority students. It sets sixteen places aside for which *only members of "educationally and economically disadvantaged minorities" compete.* Allan Bakke, white, applied for one of the remaining eighty-four places; he was rejected but, since **his test scores were relatively high,** the medical school has conceded that it could not prove that he would have been rejected if the sixteen places reserved had been open to him. Bakke sued, arguing that the task force program deprived him of his constitutional rights. The California Supreme Court agreed, and ordered the medical school to admit him. The university appealed to the Supreme Court.


* At Davis, these minorities included blacks, Hispanics, Asians and American Indians.

** For example, Bakke's Undergraduate Grade Point Average was 3.46 and his MCAT science score was 97. Whereas, in 1974, the second year that Bakke unsuccessfully applied, the average UGPA of affirmative-action admittees at Davis was 2.62; their average MCAT science score was 37. See other statistics comparing Bakke with special and regular admittees for 1973 and 1974.

The Davis program for minorities is in certain respects more forthright (some would say cruder) than similar plans now in force in many other American universities and professional schools. Such programs aim to increase the enrollment of black and other minority students by *allowing the fact of their race to count affirmatively as part of the case for admitting them.* Some schools set a "target" of a particular number of minority places instead of setting aside a flat number of places. But Davis would not fill the number of places set aside unless there were sixteen minority candidates it considered clearly qualified for medical education. The difference is therefore one of administrative strategy and not of principle.

 * A roundabout way of saying: giving them admissions preference based on race.

SO THE CONSTITUTIONAL question raised by Bakke is of capital importance for higher education in the United States, and a large number of universities and schools have entered briefs amicus curiae urging the Court to reverse the California decision. They believe that if they are not free *to use explicit racial criteria* in their admissions programs, they will be unable to fulfill what they take to be their responsibilities to the nation.

 * I.e., to treat people unequally based on their race.

*It is often said that affirmative action programs aim to achieve a racially conscious society divided into racial and ethnic groups, each entitled as a group to some proportionable share of resources, careers, or opportunities. That is a perverse description.* **American society is currently a racially conscious society;** ***this is the inevitable and evident consequence of a history of slavery, repression, and prejudice.*** Black men and women, boys and girls, are not free to choose for themselves in what roles—or as members of which social groups—others will characterize them. ****They are black, and no feature of personality or allegiance or ambition will so thoroughly influence how they will be perceived and treated by others, and the range and character of the lives that will be open to them.****


* The criticism is usually that these programs result in a more "racially conscious society," not that they intend it. However, some of their influential advocates do maintain that justice requires proportional shares of academic and professional success for racial groups. (See the Bakke amicus briefs filed by the Association of American Law Schools and the Law School Admission Council.)

** Too true, alas!

*** A "history of slavery, repression, and prejudice" is sufficient to produce racial consciousness, but hardly necessary. Whenever there are perceived differences between the appearance, culture or ability of ancestral groups, there will be racial or ethnic consciousness, easily spawning prejudice, partisanship, discrimination, hostility, oppression, warfare.

**** This statement seems greatly exaggerated. However, its degree of truth depends on the extent to which individual blacks are actually treated differently—whether unfavorably or favorably—based on their race.

*The tiny number of black doctors and other professionals is both a consequence and a continuing cause of American racial consciousness, one link in a long and self-fueling chain reaction.* Affirmative action programs **use racially explicit criteria** because their immediate goal is to increase the number of members of certain races in these professions. ***But their long-term goal is to reduce the degree to which American society is overall a racially conscious society.***


* Would Prof. Dworkin say the same concerning the "tiny number" of whites and Hispanics on professional basketball teams?

** Again the evasive language. Why be unwilling to use the label, 'preferential treatment based on race,' if that is the policy and you think it just?

*** Isn't this a devil's bargain: a guaranteed present increase in racial consciousness for the sake of an uncertain future decrease?

The programs rest on two judgments. *The first is a judgment of social theory: that the United States will continue to be pervaded by racial divisions as long as the most lucrative, satisfying, and important careers remain mainly the prerogative of members of the white race, while others feel themselves systematically excluded from a professional and social elite.* **The second is a calculation of strategy: that increasing the number of blacks who are at work in the professions will, in the long run, reduce the sense of frustration and injustice and racial self-consciousness in the black community to the point at which blacks may begin to think of themselves as individuals who can succeed like others through talent and initiative.** ***At that future point the consequences of nonracial admissions programs, whatever these consequences might be, could be accepted with no sense of racial barriers or injustice.***


* There will indeed be serious racial conflict if people are "systematically excluded from a professional and social elite" because of their race. There will also be such conflict if any racial group feels entitled to a particular share of "the most lucrative, satisfying and important careers," despite group differences in education, ability, interest or performance. But there need be no serious racial conflict if success depends on individual ability and effort rather than racial or ethnic identity.

** The "calculation of strategy" is Prof. Dworkin's most important point thus far. The idea is to enlarge the number of black professionals in order to reduce black frustration and resentment and to increase black self-confidence. I have several comments concerning both the end and the means.

1. If this calculation concerning blacks is the reason for preferential admissions, why are other minorities also given preferential treatment in admissions?

2. The means may not work. An increase in the number of black professionals will surely persuade blacks that they can "succeed through talent and initiative," if that is indeed how the increase occurs. But if the increase depends on the crutch of preference or entitlement based on race, it may be hard to throw the crutch away.

3. The end is inappropriate for the government and its agencies (such as public universities). The government should do justice and alleviate the sense of injustice, by acting according to the gravity of the wrong, not according to the race of those affected.

4. Is it the government's business—whether by legislation or by the policies of government-supported medical schools—to determine how many American doctors are black, white, brown, red or yellow? To do so would require the government to side with some racial or ethnic groups against others, both in setting and in pursuing the targets. In a free society, such outcomes depend on many factors happily outside governmental control, like the family, friends, ability, effort, interests, experience and luck of would-be doctors. Government has responsibilities enough, such as providing education and enforcing racial nondiscrimination. As a remedy for incompetent public schools, government can provide supplementary education; as a remedy for having suffered unlawful discrimination, government can require compensation. But such remedies are all and only due to the persons injured, regardless of their race.

** Prof. Dworkin apparently expects that preferential policies will be temporary. He could argue that in American history ethnic preference for British descendants over other whites and racial preference for whites over nonwhites have waned or ceased. But suppose that affirmative action fails to eliminate the problem that drives it: the inferior academic performance, on average, of a racial or ethnic group. For example, Mexican immigrants, poorly educated in their native land, continue to arrive by the millions, thereby depressing the average academic performance of Mexican-Americans. Prof. Dworkin's reason for giving preference in college and professional school admissions to this ethnic group is presumably the tiny percentage who work in the learned professions. But this problem is likely to last as long as America attracts so many less educated Mexican newcomers.

IT IS THEREFORE the worst possible misunderstanding to suppose that affirmative action programs are designed to produce a balkanized America, divided into racial and ethnic subnations. They are strong measures because weaker ones will fail; but their ultimate goal is to lessen not to increase the importance of race in American social and professional life. According to the 1970 census, only 2.1 percent of American doctors were black. Affirmative action programs aim to provide more black doctors to serve black patients. *This is not because it is desirable that blacks treat blacks and whites treat whites, but because blacks, though no fault of their own, are now unlikely to be well served by whites, and because a failure to provide the doctors they trust will exacerbate rather than reduce the resentment that now leads them to trust only their own.* **Affirmative action tries to provide more blacks as classmates for white doctors, not because it is desirable that a medical school class reflect the racial makeup of the community as a whole, but because professional association between blacks and whites will decrease the degree to which whites think of blacks as a race rather than as people, and thus the degree to which blacks think of themselves that way.** ***It tries to provide "role models" for future black doctors, not because it is desirable for a black boy or girl to find adult models only among blacks, but because our history has made them so conscious of their race that the success of whites, for now, is likely to mean little or nothing for them.***


This paragraph begins Prof. Dworkin's arguments for preferential admission to colleges and professional schools for "educationally and economically disadvantaged minorities." Yet the reasons presented in this paragraph mention only blacks and medical schools. Even if valid as stated, they could not justify racial preference in other professional schools or in undergraduate and graduate education in general.

* What proportion of blacks are poorly served by white doctors Prof. Dworkin does not say. He offers no evidence on the issue, nor have I any. I assume that increasing the number of black doctors through preferential admissions would increase the number of black patients served by their own race, which they might appreciate. It would not help these patients learn to trust doctors who are not black. And it would mean teaching, graduating and licensing many students who learned rather less in school than others would have who were rejected because of race.

** I do not doubt that the existence of more blacks in medical schools would have educational and personal benefits for white students. On the other hand, having less able colleagues, regardless of race, is a disadvantage for students.

*** More black medical students would surely mean more black role models, but will the model be of achievement through ability and effort, or through preference and entitlement?

*The history of the campaign against racial injustice since 1954, when the Supreme Court decided Brown v. Board of Education, is a history in large part of failure.* **We have not succeeded in reforming the racial consciousness of our society by racially neutral means.** We are therefore obliged to look upon the arguments for affirmative action with sympathy and an open mind. Of course, if Bakke is right that such programs, no matter how effective they may be, violate his constitutional rights, then they cannot be permitted to continue. ***But we must not forbid them in the name of some mindless maxim, like the maxim that it cannot be right to fight fire with fire, or that the end cannot justify the means. If the strategic claims for affirmative action are cogent, they cannot be dismissed on the ground that racially explicit tests are distasteful. If such tests are distasteful, it can only be for reasons that make the underlying social realities the programs attack more distasteful still.***


* Prof. Dworkin calls "the campaign against racial injustice since 1954" largely a failure, because he has redefined the goal. Toward the original goal, the end of racial discrimination, America made astounding progress. Most of the states, and then the federal government, adopted racial nondiscrimination laws in public accommodations, employment and housing. State laws requiring or permitting discrimination in public education were universally struck down. Colleges, universities and professional schools abandoned racial discrimination policies, often removing racial identification from admission forms. Through such changes, the white majority, predominant in numbers, power and wealth, renounced its privileged status in law and morality.

** The goal Dworkin would substitute is the removal or substantial reduction of racial inequality in professional participation. He is right that "racially neutral means" will not reach this goal. But the obstacle is not the "racial consciousness of our society," it is the current levels of black, Hispanic and Native American academic achievement, as indicated by grades and test scores. He may be inclined to blame these levels on our schools, and he would be partly right. But mostly wrong, if the U.S. Office of Education's 1966 report, Equality of Educational Opportunity, is correct. It found that 85% of the difference between black and white test scores in the 12th grade was already there at the beginning of 1st grade.

*** When people wonder if the end justifies the means, it is usually because they fear that the means is immoral or unjust. Is Prof. Dworkin's dismissive language concerning "mindless maxims" an attempt to repress this fear concerning affirmative action in his reader and perhaps in himself?

It is said that, in a pluralistic society, membership in a particular group cannot be used as a criterion of inclusion or exclusion from benefits. But group membership is, as a matter of social reality rather than formal admission standards, part of what determines inclusion or exclusion for us now. If we must choose between a society that is in fact liberal and an illiberal society that scrupulously avoids formal racial criteria, we can hardly appeal to the ideals of liberal pluralism to prefer the latter.

ARCHIBALD COX of Harvard Law School, speaking for the University of California in oral argument, told the Supreme Court that this is the choice the United States must make. As things stand, he said, affirmative action programs are the only effective means of increasing the absurdly small number of black doctors. The California Supreme Court, in approving Bakke's claim, had urged the university to pursue that goal by methods that do not explicitly take race into account. But that is unrealistic. We must distinguish, Cox said, between two interpretations of what the California Court's recommendation means. It might mean that the university should aim at the same immediate goal, of increasing the proportion of black and other minority students in the medical school, by an admissions procedure that on the surface is not racially conscious.

That is a recommendation of hypocrisy. If those who administer the admissions standards, however these are phrased, understand that their immediate goal is to increase the number of blacks in the school, then they will use race as a criterion in making the various subjective judgments the explicit criteria will require, because that will be, given the goal, the only right way to make those judgments. The recommendation might mean, on the other hand, that the school should adopt some non-racially conscious goal, like increasing the number of disadvantaged students of all races, and they hope that that goal will produce an increase in the number of blacks as a by-product. But even if that strategy is less hypocritical (which is far from plain), it will almost certainly fail because no different goal, scrupulously administered in a non-racially conscious way, will significantly increase the number of black medical students.

Cox offered powerful evidence for that conclusion, and it is supported by the recent and comprehensive report of the Carnegie Council on Policy Studies in Higher Education. Suppose, for example, that the medical school sets aside separate places for applicants "disadvantaged" on some racially neutral test, like poverty, allowing only those disadvantaged in that way to compete for these places. If the school selects those from that group who scored best on standard medical school aptitude tests, then it will take almost no blacks, because blacks score relatively low even among the economically disadvantaged. But if the school chooses among the disadvantaged on some basis other than test scores, just so that more blacks will succeed, then it will not be administering the special procedure in a non-racially conscious way.

 I agree that an admissions policy that is racially neutral on its face but preferential in its intent is a form of racial preference. If, as I contend, racial preference is wrong, such a policy is wrong. I also agree that a race-neutral policy that gives preference based on economic disadvantage would not substantially increase the admission of black applicants, for the reasons Dworkin states.

SO COX was able to put his case in the form of two simple propositions. A racially conscious test for admission, even one that sets aside certain places for qualified minority applicants exclusively, serves *goals that are in themselves unobjectionable and even urgent.* **Such programs are, moreover, the only means that offer any significant promise of achieving these goals.** ***If these programs are halted, then no more than a trickle of black students will enter medical or other professional schools for another generation at least.***


* I deny, for reasons stated above, and Prof. Dworkin has not shown, that racial goals pursued by the state are "unobjectionable," let alone "urgent."

** I repeat that other programs are feasible for achieving the state's legitimate goals of remedying incompetent public education and racial discrimination by providing high quality supplementary education, helping students thereby to meet the regular admission standards of selective colleges and professional schools.

*** If many blacks, Hispanics and Native Americans qualify for such help and substantially raise their level of academic achievement, their entry into professional schools will be much larger "than a trickle."

If these propositions are sound, then on what ground can it be thought that such programs are either wrong or unconstitutional? We must notice an important distinction between two different sorts of objections that might be made. These programs are intended, as I said, to decrease the importance of race in the United States in the long run. *It may be objected, first, that the programs will harm that goal more than they will advance it. There is no way now to prove that that is not so.* Cox conceded in his argument that there are costs and risks in these programs.

 * I am glad that Prof. Dworkin notes this danger.

*Affirmative action programs seem to encourage, for example, a popular misunderstanding, which is that they assume that racial or ethnic groups are entitled to proportionate shares of opportunities, so that Italian or Polish ethnic minorities are, in theory, as entitled to their proportionate shares as blacks or Chicanos or American Indians are entitled to the shares the present programs give them.* That is a plain mistake: **the programs are not based on the idea that those who are aided are entitled to aid, but only on the strategic hypothesis that helping them is now an effective way of attacking a national problem.** Some medical schools may well make that judgment, under certain circumstances, about a white ethnic minority. Indeed it seems likely that some medical schools are even now attempting to help white Appalachian applicants, for example, under programs of regional distribution.


* This tangled sentence may obscure the fact that the assumption of entitlement is mostly made and increasingly insisted upon by the groups receiving preference. In the 1950s and early 1960s, minority students in predominantly white colleges were delighted not to be discriminated against. After the institutionalization of affirmative action, they claimed to be unjustly treated if they were not given preferential treatment.

** When college administrations agree to intensify racial preference in student admissions, faculty hiring and course content, coerced by student sit-ins led by minority activists, the policy is not as disinterested as Prof. Dworkin suggests.

So the popular understanding is wrong, but so long as it persists it is a cost of the program because the attitudes it encourages tend to a degree to make people more rather than less conscious of race. There are other possible costs. It is said, for example, that some blacks find affirmative action degrading; *they find that it makes them more rather than less conscious of prejudice against their race as such.* This attitude is also based on a misperception, I think, but for a small minority of blacks at least it is a genuine cost.

  * This is a strange way of pointing to the disadvantage that, under a steep preference policy, blacks have to be superbly able in order to escape the suspicion that their success is due to preferential treatment. The suspicion cannot be blamed on anti-black prejudice, since the preference is real. Nevertheless, it should be admitted that very few blacks complain about this disadvantage.

In the view of the many important universities which have such programs, however, the gains will very probably exceed the losses in reducing racial consciousness overall. This view is hardly so implausible that it is wrong for these universities to seek to acquire the experience that will allow us to judge whether they are right. It would be particularly silly to forbid these experiments if we know that the failure to try will mean, as the evidence shows, that the status quo will almost certainly continue. *In any case, the first objection could provide no argument that would justify a decision by the Supreme Court holding the programs unconstitutional. The Court has no business substituting its speculative judgment about the probable consequences of educational policies for the judgment of professional educators.*

 * Although I believe these policies profoundly misguided, I agree that the Supreme Court should not substitute "its speculative judgment about the probable consequences of educational policies for the judgment of professional educators," unless the policies violate a right protected by the Constitution or (I would add) by applicable law.

SO THE ACKNOWLEDGED uncertainties about the long-term results of such programs could not justify a Supreme Court decision making them illegal. But there is a second and very different form of objection. It may be argued that even if the programs are effective in making our society less a society dominated by race, they are nevertheless unconstitutional because they violate the individual constitutional rights of those, like Alan Bakke, who lose places in consequence. In the oral argument Reynold H. Colvin of San Francisco, who is Bakke's lawyer, made plain that his objection takes this second form. *Mr. Justice White asked him whether he accepted that the goals affirmative action programs seek are important goals. Colvin acknowledged that they were.* Suppose, Justice White continued, that affirmative action programs are, as Cox had argued, the only effective means of seeking such goals. Would Colvin nevertheless maintain that the programs are unconstitutional? Yes, he insisted, they would be, because **his client has a constitutional right that the programs be abandoned, no matter what the consequences.**


* This summary does not specify the affirmative-action goals that Mr. Colvin and Justice White agreed were important. If they were the goals previously emphasized by Prof. Dworkin (reducing racial consciousness in the long term by immediately increasing the number of minority professionals), Mr. Colvin would have done well to oppose the immediate goal as not the business of the state and to support the long-term goal only as pursued by race-neutral means.

** The constitutional right not to be treated unequally based on race, while strongly protected, is not absolute. The Court has never decided that the right would prevail, "no matter what the consequences."

Colvin was wise to put his objections on the second ground; he was wise to claim that his client has rights that do not depend on any judgment about the likely consequences of affirmative action for society as a whole, because if he sustains that claim, then the Court must give him the relief he seeks.

But can he be right? If Allan Bakke has a constitutional right so important that the urgent goals of affirmative action must yield, then this must be because *affirmative action violates some fundamental principle of political morality.* **This is not a case in which what might be called formal or technical law requires a decision one way or the other.** ***There is no language in the Constitution whose plain meaning forbids affirmative action.*** ****Only the most naïve theories of statutory construction could argue that such a result is required by the language of any earlier Supreme Court decision or of the Civil Rights Act of 1964 or of any other congressional enactment.**** If Colvin is right, it must be because Allan Bakke has not simply some technical legal right but an important moral right as well.


* Exactly! Affirmative action as racial preference in government-supported higher education plainly violates a "principle of political morality" that most Americans do consider "fundamental." That is the principle of No Racial Discrimination, i.e., no difference in governmental treatment based on race or ethnicity.

** False! Section 601 of the Civil Rights Act of 1964 simply and clearly bars any university supported by federal funds from turning down an applicant because of race.

*** True! The constitutional right not to be treated unequally based on race is derived from the Equal Protection Clause, which does not mention race.

**** Baloney! Anyone who needs a complicated theory of statutory construction to understand Section 601 is probably trying to evade it. Here it is in full: "No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Interpretation of the Constitution is not so clear-cut, but the Supreme Court has a long history of decisions and dicta barring unequal treatment based on race by the government.

WHAT could that right be? The popular argument frequently made on editorial pages is that Bakke has a right to be judged on his merit. Or that he has a right to be judged as an individual rather than as a member of a social group. Or that he has a right, as much as any black man, not to be sacrificed or excluded from any opportunity because of his race alone. *But these catch phrases are deceptive here, because, as reflection demonstrates, the only genuine principle they describe is the principle that no one should suffer from the prejudice or contempt of others.* And that principle is not at stake in this case at all. In spite of popular opinion, the idea that the Bakke case presents a conflict between a desirable social goal and important individual rights is a piece of intellectual confusion.

 * A brief rule of conduct is a "catch phrase" if Prof. Dworkin rejects it, but a "genuine principle" if he favors it.

*Consider, for example, the claim that individuals applying for places in medical school should be judged on merit, and merit alone.* If that slogan means that admissions committees should take nothing into account but scores on some particular intelligence test, then it is arbitrary and, in any case, contradicted by the long-standing practice of every medical school. If it means, on the other hand, that a medical school should choose candidates that it supposes will make the most useful doctors, then everything turns on the judgment of what factors make different doctors useful. The Davis medical school assigned to each regular applicant, as well as to each minority applicant, what it called a "benchmark score." This reflected not only the results of aptitude tests and college grade averages, but a subjective evaluation of the applicant's chances of functioning as an effective doctor, in view of society's present needs for medical service. Presumably the qualities deemed important were different from the qualities that a law school or engineering school or business school would seek, just as the intelligence tests a medical school might use would be different from the tests these other schools would find appropriate.

 * Prof. Dworkin hopes to remove this principle as an obstacle to racial preference by stretching the definition of "merit" to include anything that might be deemed useful. How this word is defined is not unimportant. Indeed, the worth of a civilization largely depends on how well it defines "merit." One would hope that a university or professional school would define it primarily as the applicant's ability and determination to learn what it has to teach. However, that it select all its applicants according to its idea of merit is not required by the Constitution, by federal statute, or by moral principle. For example, preferences based on residence, alumni connection, or military service may be reasonable and are certainly not illegal. Racial preferences are another matter.

There is no combination of abilities and skills and traits that constitutes "merit" in the abstract; if quick hands count as "merit" in the case of a prospective surgeon, this is because quick hands will enable him to serve the public better and for no other reason. If a black skin will, as a matter of regrettable fact, enable another doctor to do a different medical job better, then that black skin is by the same token "merit" as well. That argument may strike some as dangerous; but only because they confuse its conclusion—that black skin may be a socially useful trait in particular circumstances—with the very different and despicable idea that one race may be inherently more worthy than another.

CONSIDER the second of the catch phrases I have mentioned. It is said that Bakke has a right to be judged as an "individual," in deciding whether he is to be admitted to medical school and thus to the medical profession, and not as a member of some group that is being judged as a whole. What can that mean? *Any admissions procedure must rely on generalizations about groups that are justified only statistically.* The regular admissions process at Davis, for example, set a cutoff figure for college grade-point averages. Applicants whose averages fell below that figure were not invited to any interview, and therefore rejected out of hand.

 * [See the rebuttal following the next paragraph.]

An applicant whose average fell one point below the cutoff might well have had personal qualities of dedication or sympathy that would have been revealed at an interview, and that would have made him or her a better doctor than some applicant whose average rose one point above the line. *But the former is excluded from the process on the basis of a decision taken for administrative convenience and ground in the generalization, unlikely to hold true for every individual, that those with grade averages below the cutoff will not have other qualities sufficiently persuasive. Even the use of standard Medical College Aptitude Tests (MCAT) as part of the admissions procedure requires judging people as part of groups, because it assumes that test scores are a guide to medical intelligence, which is in turn a guide to medical ability. Though this judgment is no doubt true statistically, it hardly holds true for every individual.*

  * As most people understand it, the obligation to judge applicants as individuals largely overlaps with the obligation to judge according to merit. We want applicants to be judged by the individual traits, such as ability, determination, character, and past performance, that indicate how well they will do. Such personal qualities, as bases for judgment, are entirely different from the social groups to which applicants belong, such as family, neighborhood, economic class, religious denomination, political party, race or ethnicity. It is of course true that having a particular trait places a person in the group of human beings who share that trait. But to insist on this point obscures the common-sense distinction between personal qualities and group memberships. This distinction has been fundamental to the replacement of monarchical societies based on status by democratic societies based on equality of individual rights, with careers open to talent and initiative. Properly understood, the obligation to judge university applicants as individuals, like the obligation to judge them according to merit, while fundamental to our civilization, is neither a moral absolute, nor a constitutional requirement.

Allan Bakke was himself refused admission to two other medical schools, not because of his race but because of his age: these schools thought that a student entering medical school at the age of thirty-three was likely to make less of a contribution to medical care over his career than someone entering at the standard age of twenty-one. Suppose these schools relied, not on any detailed investigation of whether Bakke himself had abilities that would contradict the generalization in his specific case, but on a rule of thumb that allowed only the most cursory look at applicants over (say) the age of thirty. Did these two medical schools violate his right to be judged as an individual rather than as a member of a group?

The Davis medical school permitted whites to apply for the sixteen places reserved for members of "educationally or economically disadvantaged minorities," a phrase whose meaning might well include white ethnic minorities. In fact several whites have applied, though none has been accepted, and the California Court found that the special committee charged with administering the program had decided, in advance, against admitting any. Suppose that decision had been based on the following administrative theory: it is so unlikely that any white doctor can do as much to counteract racial imbalance in the medical professions as a well-qualified and trained black doctor can do that the committee should for reasons of convenience proceed on the presumption no white doctor could. That presumption is, as a matter of fact, more plausible than the corresponding presumption about medical students over the age of thirty, or even the presumption about applicants whose grade-point averages fall below the cutoff line. If the latter presumptions do not deny the alleged right of individuals to be judged as individuals in an admissions procedure, then neither can the former.

COLVIN, in oral argument, argued the third of the catch phrases I mentioned. He said that his client had a right not to be excluded from medical school because of his race alone, and this as a statement of constitutional right sounds more plausible than claims about the right to be judged on merit or as an individual. It sounds plausible, however, because it suggests the following more complex principle. *Every citizen has a constitutional right that he not suffer disadvantage, at least in the competition for any public benefit, because the race or religion or sect or region or other natural or artificial group to which he belongs is the object of prejudice or contempt.*

 * Prof. Dworkin formulates here an interesting, possible "constitutional right." Its existence is not self-evident, nor has it been declared by any Court hitherto. Where in the Constitution does it reside? What textual provisions and judicial precedents imply it? What is the chain of fact and reason that compels the inference of this right?

That is a fundamentally important constitutional right, and it is that right that was systematically violated for many years by racist exclusions and anti-Semitic quotas. *Color bars and Jewish quotas were not unfair just because they made race or religion relevant or because they fixed on qualities beyond individual control.* It is true that blacks or Jews do not choose to be blacks or Jews. But it is also true that those who score low in aptitude or admissions tests do not choose their levels of intelligence. Nor do those denied admission because they are too old, or because they do not come from a part of the country underrepresented in the school, or because they cannot play basketball well, choose not to have the qualities that made the difference.

  * In this paragraph, Prof. Dworkin refers to two arguments often used to justify racial nondiscrimination: that one's race is (1) irrelevant in determining what one deserves or needs and (2) outside one's control. In rebuttal, he notes here that many accepted bases of selection are beyond the applicant's control, and he has pointed out above that if the end is to increase the proportion of black professionals, selection by race is indeed a relevant means. Although the arguments he rebuts, when combined, explain much of the inappropriateness of race as a basis of treatment, they need to be supplemented by an appreciation of the evils that have arisen throughout history from racial and ethnic partisanship, conflict, oppression and warfare. Race is different.

Race seems different because exclusions based on race have historically been motivated not by some instrumental calculation, as in the case of intelligence or age or regional distribution or athletic ability, but because of contempt for the excluded race or religion as such. Exclusion by race was in itself an insult, because it was generated by and signaled contempt.


* Prof. Dworkin's theory in these paragraphs is that America rejected exclusion based on race or religion not as wrong in itself, but wrong only when it excluded members of racial and religious groups that were objects of prejudice or contempt. If this were indeed the basis of exclusion, it would have been visible in the laws barring racial and religious discrimination adopted in the 1950s and 1960s. But no such basis of exclusion was ever designated. On the contrary, the typical language is that already quoted from Section 601 of the 1964 Civil Rights Act: "No person . . . shall, on the ground of race, color or national origin, be excluded from participation in . . . any program or activity receiving Federal financial assistance." To support Dworkin's theory, the law should have said: "No member of a racial or ethnic group that is the object of prejudice or contempt shall be excluded . . ." If this was intended, it was easy to say so. Had Prof. Dworkin been at the scene, he could have urged his formulation. But no such amendment was offered, concerning this or the many other nondiscrimination clauses in the bill.

More examples? § 703 (a) of the same Act forbids an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

§ 703 (b) forbids an employment agency "to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin."

§ 703 (c) forbids a labor union "to exclude or to expel from its membership, or otherwise to discriminate against, any individual on the basis of his race, color, religion, sex, or national origin."

In every case, the forbidden basis of treatment is membership in any racial or ethnic group. If Congress had meant to define the basis otherwise—as membership only in groups that are the objects of prejudice or contempt—the words were available.

Bakke's claim, therefore, must be made more specific than it is. He says he was kept out of medical school because of his race. Does he mean that he was kept out because his race is the object of prejudice or contempt? That suggestion is absurd. A very high proportion of those who were accepted (and, presumably, of those who run the admissions program) were members of the same race. He therefore means simply that if he had been black he would have been accepted, with no suggestion that this would have been so because blacks are thought more worthy or honorable than whites.

That is true: no doubt he would have been accepted if he were black. *But it is also true, and in exactly the same sense, that he would have been accepted if he had been more intelligent,* or made a better impression in his interview, or, in the case of other schools, if he had been younger when he decided to become a doctor. Race is not, in his case, a different matter from these other factors equally beyond his control. It is not a different matter because in his case race is not distinguished by the special character of public insult. On the contrary, the program presupposes that his race is still widely if wrongly thought to be superior to others.

 * This sentence equates a medical school's decision to reject applicants based on race with a decision to reject based on ability. To Prof. Dworkin, the former is as reasonable and praiseworthy as the latter, provided the race involved is not the object of prejudice or contempt. Thus is swept aside the Racial Nondiscrimination Principle, whose widespread acceptance is perhaps the greatest moral achievement of the 20th Century.

In the past it made sense to say that an excluded black or Jewish student was being sacrificed because of his race or religion; that meant that his or her exclusion was treated as desirable in itself, not because it contributed to any goal in which he as well as the rest of society might take pride. Allan Bakke is being "sacrificed" because of his race only in a very artificial sense of the word. He is being "sacrificed" in the same artificial sense because of his level of intelligence, since he would have been accepted if he were more clever than he is. In both cases he is being excluded not by prejudice but because of a rational calculation about the socially most beneficial use of limited resources for medical education.


Prof. Dworkin has shown why the imaginary constitutional right that he formulates would not belong to white applicants, but he has not shown that it exists. He has not shown it to be implied by the language of the Constitution or by judicial precedent. Had he attempted to do so, he would have encountered a line of Supreme Court opinions, consistently interpreting the 14th Amendment to bar unequal treatment by the States based on race. These begin with Slaughter-House Cases (1873), Strauder v. West Virginia (1880), and Plessy v. Ferguson (1896), down to Hirabayashi v. United States (1943), Korematsu v. United States (1944) and Brown v. Board of Education (1954). Readers may be surprised to see Plessy in the list, but they should consider that while that decision permitted different or segregated treatment based on race, it did not authorize unequal treatment; on the contrary, the parties had stipulated at trial that the facilities, though separate, were equal. Neither in these nor in any other cases was it suggested that unequal treatment based on race was only barred by the Amendment when directed against members of racial groups that were the objects of prejudice or contempt.

In the Constitution itself, race is mentioned once: in Section 1 of the 15th Amendment. It provides that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude." In other words, with regard to the right to vote, no unequal treatment based on race is permitted. Though clearly adopted with blacks in mind, the amendment's racial protection is not restricted to groups that may be the objects of prejudice or contempt.

IT MAY NOW be said that this distinction is too subtle, and that if racial classifications have been and may still be used for malign purposes, *then everyone has a flat right that racial classifications not be used at all.* This is the familiar appeal to the lazy virtue of simplicity. It supposes that if a line is difficult to draw, or might be difficult to administer if drawn, then there is wisdom in not making the attempt to draw it. There may be cases in which that is wise, but those would be cases in which nothing of great value would as a consequence be lost. If racially conscious admissions policies now offer the only substantial hope for bringing more qualified black and other minority doctors into the profession, then a great loss is suffered if medical schools are not allowed voluntarily to pursue such programs. We should then be trading away a chance to attack certain and present injustice in order to gain protection we may not need against speculative abuses we have other means to prevent. And such abuses cannot, in any case, be worse than the injustice to which we would then surrender.

 * The "flat right that racial classifications not be used at all" is precisely what all Americans were granted in the areas covered by the Civil Rights Act of 1964 and by other nondiscrimination legislation.

WE HAVE NOW considered three familiar slogans, each widely thought to name a constitutional right that enables Allan Bakke to stop programs of affirmative action no matter how effective or necessary these might be. When we inspect these slogans, we find that they can stand for no genuine principle except one. *This is the important principle that no one in our society should suffer because he is a member of a group thought less worthy of respect, as a group, than other groups.* We have different aspects of that principle in mind when we say that individuals should be judged on merit, that they should be judged as individuals, and that they should not suffer disadvantages because of their race. The spirit of that fundamental principle is the spirit of the goal that affirmative action is intended to serve. The principle furnishes no support for those who find, as Bakke does, that their own interests conflict with that goal.

  * I do not quarrel with this ideal, but with Prof. Dworkin's wish to substitute it for the accepted command of Racial Nondiscrimination. Has he considered the logical implications of trashing this command?

It is regrettable when any citizen's expectations are defeated by new programs serving some more general concern. It is regrettable, for example, when established small businesses fail because new and superior roads are built; in that case people have invested more than Bakke has. And they have more reason to believe their businesses will continue than Bakke had to suppose he could have entered the Davis medical school at thirty-three, even without a task force program.

There is, of course, no suggestion in that program that Bakke shares in any collective or individual guilt for racial injustice in the United States; or that he is any less entitled to concern or respect than any black student accepted in the program. He has been disappointed, and he must have the sympathy due that disappointment, just as any other disappointed applicant—even one with much worse test scores who would not have been accepted in any event—must have sympathy. Each is disappointed because places in medical schools are scarce resources and must be used to provide what the more general society most needs. *It is not Bakke's fault that racial justice is now a special need—but he has no right to prevent the most effective measures of securing that justice from being used.*


* In this essay, Prof. Dworkin maintains that "racial justice" requires that black, Hispanic and Native Americans become a much larger proportion of American professionals. In his view, this justifies lower admission standards for applicants from these groups to professional schools.

By the same moral logic, suppose that advocates of affirmative action decide that "racial justice" requires a smaller gap between the average income of these groups and of Americans in general. Would this justify lower income tax rates, for members of these groups, based on their race?

Or suppose a claim that "racial justice" requires a smaller gap between the incarceration rate of members of these groups and of Americans in general. Would this justify preferential legal standards, making conviction more difficult and sentences lighter for black, Hispanic and Native Americans?

Or suppose a claim that "racial justice" requires that a larger proportion of public officials be members of these groups. Would this justify giving them a double vote in elections? If someone objected that this would be prohibited by the plain language of the 15th Amendment, would Dworkin reply that "[o]nly the most naïve theories of statutory construction would argue that such a result is required by the language" of the Amendment?

Note 1. This essay, reprinted with permission, first appeared as "Why Bakke Has No Case," in the New York Review of Books, 11/10/1977. Prof. Dworkin's book, A Matter of Principle, was published by Harvard University Press in 1985. [return to text]