UC Davis Law Review symposium marks Bakke's 40th anniversary, continued timeliness
By Carla Meyer
For its annual symposium, the UC Davis Law Review chose a landmark, 40-year-old United States Supreme Court affirmative action case with UC Davis roots and legal implications still in play today.
The Oct. 26 “Bakke at 40: Diversity, Difference & Doctrine” symposium drew top legal experts to King Hall to discuss the lasting impact of the 1978 decision in Regents of the University of California v. Bakke. 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.
The case 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.
“Bakke is really the case that gave us diversity as the constitutional value that it continues to be to this day,” said Brian Soucek, UC Davis School of Law professor and the law review’s faculty advisor. “Powell’s opinion in Bakke … has had an outsize importance, certainly within higher education admissions, but also in the corporate world – basically anywhere where you see somebody talking about diversity as an important value.”
The case just made news again when Harvard’s admissions office – the model for the Bakke decision - went on trial in Boston earlier this month. Harvard is accused of using its “personal rating” tool to reject Asian Americans in favor of students from other backgrounds.
“When we were talking about it last year, I knew this symposium was a golden opportunity to examine national wounds that have never properly been diagnosed or treated – the legacies of slavery, and of segregation in the United States,” UC Irvine School of Law professor Jonathan Glater said during a symposium panel session. “But I didn’t know how timely it would be.”
If the plaintiffs succeed in the Harvard case, “there would be no way left to do affirmative action,” Soucek said. “If they can take down the Justice Powell model of affirmative action, then it is gone. (And) with the new makeup of the Supreme Court, the odds are incredibly strong that they will overturn (Bakke). Affirmative action policies even by the Harvard model have been hanging by a thread basically since Bakke.”
California universities have operated under a ban on race, sex and ethnicity as factors in college admissions since 1996, when voters approved Prop. 209.
“We have had to find other ways of making sure that we have the diverse student body we want,”
Soucek said. “Here at the law school, that’s involved enormous and wonderful outreach to a wide variety of communities, reaching down to grade school.”
Glater spoke of a similar approach, involving “outlier identification” on a national level. Tens of thousands of low-income students have earned high enough test scores to be admitted to highly selective universities, Glater pointed out, and likely could get scholarships if they applied. But they don’t.
“More schools are looking at interventions to get these students to apply,” Glater said. “It turns out that little things, like sending a postcard, can be enough to make a difference.”