Race and the Court
To the Editor:
In my letter in the December 1978 issue commenting on “Why Bakke Won’t End Reverse Discrimination: 1” by William J. Bennett and Terry Eastland [September 1978], I stated:
But is there any warrant for [Bennett and Eastland's] contention that the dissenting Justices held that the Fourteenth Amendment “permits race to be the decisive consideration in a university admissions program”?
To which Messrs. Bennett and Eastland replied:
Five members of the Court have said it is all right to make race count, and count decisively.
The U.S. Fourth Circuit Court of Appeals originally and ostensibly read Bakke to mean that more than race may be “taken into account” and upheld the University of North Carolina’s regulations that the student-elected campus governing body had to include at least two minority members and that the honor court which hears charges against students must have at least four of the seven judges of the same race or sex as the student charged.
The United States Supreme Court, on certiorari, sent the case back to the Circuit Court for review. On review, the Circuit Court now said (February 1979):
Race may be a consideration in fixing the rights of students, but at no stage did the Court affirm that race could be the determinant (emphasis added).
That the issue is not stilled forever is proved by the minority in the same Circuit Court, who, despite the Supreme Court’s obvious disapproval, said:
Bakke does not hold that in all events racial criteria may not be the sole determinant in fixing the rights of students, although it “recognizes that race is a suspect classification.”
The need for a Supreme Court decision which would finally put the issue to rest is most urgent and long overdue.
Most students of the legal question believe that Justice Powell’s vote will be decisive in the pending Weber v. Kaiser Aluminum case, involving reverse discrimination in employment. How he will vote may be seen from his position in Furnco Constr. v. Waters and Trustees v. Sweeney, the first decided on the same day as Bakke, the second on November 13, 1978. Both were employment cases and, in both, Powell’s position was with the majority and contrary to that of Marshall, Brennan, White, and Blackmun, who would give race more than “some consideration.”
Jacob E. Heller
New York City
