Bakke was the first major constitutional test of Affirmative Action.

In its quest for diversity in its student body, the University of California Medical School at Davis had created a bisected admissions program. Of one hundred positions available at the school for new admissions in 1972, eighty-four were to be filled by normal admissions policies, while sixteen were set aside for minorities, who would be selected under a separate "special" admissions policy. For these slots, standards for grade point averages and test scores would not be as stringent as for regular admissions.

Bakke was one of 2,664 applicants for those one hundred slots. After being rejected twice by the school, he filed a lawsuit charging that the school's special admissions policy violated his rights under Title VI of the Civil Rights Act of 1964, which forbade any program receiving federal funds from practicing racial or ethnic preferences. He also asserted that he had been denied equal protection of the laws, as guaranteed by the Fourteenth Amendment.

In its defense, the university claimed that the need to remedy prior discrimination overshadowed the right to admissions based strictly upon merit, and that diversity in the med school student body would enrich the learning experience and project favorable role models for other minorities. (We're still looking for all that in the Constitution.)

The state courts felt otherwise, that any such numerically based program constituted a quota system. Unless the university itself had discriminated, and designed the admissions program to specifically correct that discrimination, quotas were unacceptable violations of the Equal Protection Clause.

The U.S. Supreme Court agreed, though in less than straight-forward terms. The Court was badly divided and several sets of overlapping but non-identical opinions were issued in the 5-4 decision. Nonetheless, the majority found for Bakke, and ordered him admitted.

Justices William Rehnquist, Potter Stewart, John Paul Stevens and Chief Justice Warren Burger saw Title VI as being quite clear regarding the prohibition against racial selectivity in any federally-funded program. For them, that was enough to sustain without considering the underlying constitutionality.

The joint opinion of liberal Justices William Brennan, Thurgood Marshall, Byron White and Harry Blackmun was harder to decipher and seems to reverse the original point of Affirmative Action. They felt that unless there is a clear presumption that one race is inferior to another, or an obvious attempt to use the force of government to foster racial strife, then there is no reason to apply the strictest interpretation of equal protection (i.e. for Bakke). They added that as long as the institution can demonstrate an important purpose for the program, and it does not present an undue burden to "those least well represented in the political process", then race-based programs to remedy racially motivated harms from the past are constitutionally acceptable.

Justice Powell cast the deciding vote, agreeing that the university's special admissions program constituted an unacceptable quota, and that it was so exclusionary as to deny equal protection to Bakke. But he also agreed with the Brennan plurality that less exclusionary race-based programs are acceptable under the First Amendment guarantee of "academic freedom". (If this latest "right" comes as news, it was discovered by Justice William O. Douglas in Adler v. Board of Education [1951]. How it connects with a discriminatory admissions program is unclear.)

As Bakke went to court, proponents of Affirmative Action feared that a win for Bakke would lead to a steep decline in minority admissions. That didn't turn out to be the case, at least in part because the decision in the case only dabbled at the edges of the underlying issues surrounding Affirmative Action, leaving room for future cases to examine its other applications.

While the decision in Bakke seems a victory for common sense constitutionality, the conflicting and somewhat obscure opinions present a worrisome picture of the thinking of the High Court on the issue of race preferences, and the continued use by higher education of racial and ethnic quota systems under a variety of guises confirms that the decision did not eradicate admissions discrimination.