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Predictably,
a backlash occurred. Affirmative action, once widely accepted as a necessary means of leveling
a playing field unbalanced by centuries of slavery and Jim
Crow, came under attack as “reverse discrimination.” As places in entering classes
at elite institutions became scarcer and more highly valued, disappointed white applicants
and their supporters questioned the propriety of giving what seemed to be a permanent advantage
to members of minority groups, many of whom had not directly been victimized by Jim Crow laws.
The first legal challenge to reach the Supreme Court was Regents of the University of California
v. Bakke (1978). Bakke involved a minority set-aside system employed by the medical
school at the University of California–Davis. The legal claim was that, by maintaining
a separate admissions track for minorities, the university was denying white applicants the
equal protection
of the law guaranteed by the U.S. Constitution.
The Supreme Court voted to strike down the Davis admission system, but its numerous opinions, not one of which commanded a majority, revealed the depth of the court’s division over the legality of affirmative action. The liberal wing of the court, articulating what might be called the “societal remediation” argument, claimed that “benign discrimination” programs like Davis’s were justified as a means of overcoming the nation’s shameful history of race relations. The conservative wing, articulating the “colorblindness principle,” argued that race was inherently toxic as a discriminant, and therefore should never be used to allocate benefits or burdens. The decisive vote was cast by Justice Lewis Powell, who argued that race could properly be used as part of a strategy for achieving educational diversity, but only if it was one of several diversity-relevant criteria (a “plus factor”), not a decisive or determinative criterion. The automatic set-aside (“quota”) system used by the medical school, he opined, did not meet this test.
