UC Davis Law Review's 'Bakke at 40' symposium edition is now online

Articles from last fall's UC Davis Law ReviewBakke at 40: Diversity, Difference and Doctrine” symposium are now online in Vol. 52 of the Law Review.

The symposium drew top legal experts to King Hall to discuss Regents of the University of California v. Bakke, a landmark 1978 Supreme Court affirmative action case with UC Davis roots and legal implications still in play today.

The symposium’s participants included law school deans Kevin R. Johnson of UC Davis and Mario Barnes of the University of Washington; Dean Emerita Rachel Moran of UCLA School of Law; and other scholars from UC campuses and Duke and Yale universities. Justice Melissa Hart of the Colorado Supreme Court also spoke at the event.

Bakke originated when Allan Bakke filed suit after being denied admission to UC Davis’ School of Medicine. Bakke, who is white, contended the university violated his Fourteenth Amendment rights by saving 16 slots in a class of 100 for students of color.

The Supreme Court ruled in favor of Bakke, ordering he be admitted to the medical school, from which he graduated in 1982. But the court did not reject affirmative action, only specific quotas. In his oft-cited opinion in the case, Justice Lewis F. Powell Jr. spotlighted Harvard University’s admissions policy as a model for taking race into consideration as one of many factors in admissions.

“Admissions programs at virtually all institutions of higher education have been influenced by Bakke,” Dean Johnson writes in his foreword to Vol. 52.

In 1981, the California Supreme Court applied Bakke to the case of Glen DeRonde, one of approximately 2,200 applicants for admission to the law school. “Claiming that the denial of his application was because he was white, DeRonde asserted state and federal constitutions claims,” Johnson writes. “The California Supreme Court held that, because the law school’s narrowly tailored admission scheme considered race among many factors, it complied with the strictures of Bakke and thus was constitutional.”

Challenges to affirmative action have kept coming. On the same day as the Bakke symposium in October 2018, the Harvard admissions office – model for the Bakke decision – was on trial in Boston, accused of using its “personal rating” tool to reject Asian Americans in favor of students from other backgrounds.

“The Harvard case is simply the latest challenge to Bakke, which is symptomatic of the fact that the decision fits uneasily into the Supreme Court’s increasingly color-blind constitutional jurisprudence,” Johnson writes.

With more staunchly conservative majority now installed in the Supreme Court, Bakke’s “days may be numbered,” Johnson writes in his foreword to articles by Barnes, Moran, UC Davis Law Visiting Professor Meera Deo and others that examine the past, present and future of affirmative action.