Today in 1977: The Supreme Court hears oral arguments in Regents of the University of California v. Bakke

October 12, 2012

Today in Legal HistoryEarlier this week, the Supreme Court heard oral arguments in Fisher v. University of Texas.

The case has received quite a bit of attention from the media recently because it is widely regarded to be the next landmark ruling on affirmative action in school admissions programs.

If you’re interested in finding out more about Fisher, I’ve written two posts on it this year already, so feel free to check those out.

Coincidentally, the oral arguments occurred two days short of the 35th anniversary of the oral arguments of the first landmark Supreme Court ruling on school admissions affirmative action: Regents of the University of California v. Bakke.

Bakke’s oral arguments were heard on October 12, 1977, and there were quite a few similarities to the Fisher oral arguments heard 35 years later.

First, as many media outlets have already reported similarly about the Fisher case, the Court was plainly divided over the issue in Bakke.

In Bakke, the Court was divided over whether race may be used as a factor in higher education admissions decisions, not to mention the so-called “quota” system that University of California used.

According to the admissions policy’s challenger, Allan Bakke – a 33-year-old white male – these factors led to his twice being denied admission to the school.

Likewise, Fisher’s challengers – Abigail Fisher and Rachel Michalewicz (two white women) – similarly claimed that they were denied admission to University of Texas at Austin because of their race, and the Court, again, was sharply divided over the issue.

However, just because the Court was conflicted over the issue of race in both cases doesn’t mean that the Bakke Supreme Court was divided for the same reason as the Fisher Court.

In Bakke, the Court was torn over the so-called “quota” system that reserved a certain number of seats of enrollment for “disadvantaged” minority students.

In Fisher, the Court was split over whether the use of race as a criterion of admissions is allowable at all – despite the fact that the University of Texas’ admissions policy is modeled exactly after what was approved by the Supreme Court in 2003’s Grutter v. Bollinger (see this post for more).

This notable shift away from Bakke’s holding – which was that racial quotas are unconstitutional, but race may be one of many factors taken into account – is likely due to the replacement of retiring Supreme Court Justices with increasingly conservative ones.

Regardless of how the Court got to its current ideological position, the fact is that it is where it is, and because of that, Bakke is likely headed for the trash heap (but I’ll explain more on that in a forthcoming post).

But, despite the differences between Bakke and Fisher that may see the latter causing the overruling of the former, there are still an interesting similarity.

In both cases, the applicants’ race may not have been the determining factor in their admissions rejection.

In the case of Mr. Bakke, several secondary sources have pointed out that the superseding factor causing his rejections was his age (many medical schools had an age cutoff of around 30).

In the case of Ms. Fisher, the University of Texas explicitly stated in their brief to the Supreme Court that she would not have been admitted regardless of their admissions policy on race because her academic credentials were insufficient.

In other words, neither Bakke nor Fisher would have been admitted to their respective schools even if there were no race-based factors in the admissions process.

That leaves us with the question: If there had been no race-based factors in either case, would any of the rejected applicants have sued?