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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 faculty from voluntarily seeking to counteract the effects of generations of pervasive discrimination against discrete and insular minorities by establishing a limited special admission program that increases opportunities for well-qualified members of such racial and ethnic minorities? (Ball 2000, 64). Thus, the regents question centers on the notion of using positive racial classifications to achieve remedial affirmative action. The different groups that filed amicus curiae (friend of the court) briefs with the petitioner's request for writ of certiorari illustrates the polarization of the debate surrounding affirmative action. Two of the amicus briefs stated that without the highest court's grant of certiorari and subsequent overturning of the California State Supreme Court ruling, "the movement of minority groups toward meaningful representation in the professions will virtually cease." In contrast, two other amicus briefs asserted that it was necessary for the Court to stem the tide of "rampant" reverse discrimination in higher education (Ball 2000, 64). The essence of the disagreement in Bakke hinged upon the battle over the scope of judicial review. The petitioner preferred to view the special admission program for minority applicants as a means of reaching a "goal" of minority representation at the UCD Medical School, while those siding with Bakke saw the special admissions program as a racial quota. Those defending the UCD Medical School contended that the level of review or judicial scrutiny of the program should be reserved for "discrete and insular minorities." On the other hand, Bakke's lawyers argued that "the California court correctly rejected the notion that the degree of judicial scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the 'rights established [by the Fourteenth Amendment] are personal rights'" (University of California Regents v. Bakke 1978). Unlike Odegaard v. DeFunis, the Supreme Court heard Bakke. However, their ruling was far from unanimous. On the basis that the institution itself was not shown to have deliberately discriminated in the past, four Justices voted to strike down, as a violation of Title VI of the 1964 Civil Rights Act, UCD Medical School's special admissions program. In addition, another bloc of four Justices asserted that UCD's minority admissions quota designed for remedial purposes in regard to discrimination was not justified by the Constitution, nor the Civil Rights Act. Justice Powell was the tie-breaking vote, though he was certainly fragmented in his decision as well. In his deciding vote, Justice Powell added a fifth vote to one four-Justice bloc by arguing that he "found that neither the state's asserted interest in remedying 'societal discrimination' nor of providing 'role models' for minority students was sufficiently 'compelling' to warrant the use of 'suspect' racial classification in the admission process" (Colamery 1998, 3). However, Justice Powell also added a fifth vote to the other four-Justice bloc by declaring that the goal of achieving a "diverse student body" was a "clearly permissible goal for an institution of higher education." In addition, he contended that race could be considered during the admissions process as "one element of a range of factors," provided that it "did not insulate the individual from comparison with all the other candidates for the available seats" (Colamery 1998, 3). Justice Powell's opinion illustrates his support for affirmative action as a factor in admissions decisions as a means to achieve racial diversity. In effect, the majority opinion of the Court reaffirmed that the rights detailed in the first section of the Fourteenth Amendment are guaranteed as individual rights and inherently personal rights. Thus, the guarantee of equal protection must be accorded to individuals regardless of their race or their membership or non-membership as a "discrete and insular minority," as stated by the Yolo County Superior Court. Furthermore, the Supreme Court said in Bakke, The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." It is settled beyond question that the 'rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.' The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal (University of California Regents v. Bakke 1978). It is important to note that though the Court declared specific quotas in medical school admissions impermissible, it did not disprove the practice of taking race into account as a factor in admissions. The Court affirmed that, "[A] 11 legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny" (University of California Regents v. Bakke 1978). Thus, the historic Bakke ruling affirmed that dual admissions programs and quota-based affirmative action policies violate the Fourteenth Amendment's Equal Protection Clause, while simultaneously holding that positive racial classifications may be permissible, but must be subjected to "strict scrutiny" by the Court and meet the standard of a "compelling interest." The Court's ruling in Bakke stands in stark contrast to the lower courts' rulings in DeFunis. Over the past thirty years, the fragmented and unclear stance of the judicial branch with regard to affirmative action mirrors the similar lack of consensus on the issue within the public at large. President Clinton's "mend it, don't end it" caution and current President Bush's "affirmative access," mantra, illustrate a desire to provide equal opportunity but a disagreement as how to most effectively proceed. The numerous amicus briefs that were filed on both sides in the DeFunis and Bakke cases illustrate the fragmentation of opinion among public interest groups. 11 |