Commentary Magazine

The Bakke Case

To the Editor:

John H. Bunzel, in his excellent analysis of the Bakke case [“Bakke vs. University of California,” March], . . . writes that “Good young minds must be rescued before they become dulled and ill-equipped to go on to college.” But if the Supreme Court upholds the reasoning of the University of California at Davis, all our minds may become dulled in the following ways.

  1. We will be afraid to patronize a “minority” doctor for fear that he has not the ability of his non-“minority” colleague. “Minority” doctors who were able to meet the standards of the majority will thus suffer. This may discourage qualified “minority” students from pursuing careers in medicine.
  2. Young people will learn that study and achievement take on less importance than one’s ethnic and racial background. (It is presently easier to get into and finance your university education in New York City if you perform in a mediocre fashion in secondary school.)
  3. The term “equality of opportunity” will lose all its meaning, and thus, that which has made this country unique . . . will disappear.

Frederic Wile
New York City



To the Editor:

The city of Detroit is approximately half black. Because of deliberate policy for many years there were almost no black police officers hired. If the California Supreme Court decision in the Bakke case were applied to the promotional policies of the Board of Police Commissioners, we would surely find ourselves with an almost all-white command structure, a situation which would impose enormous strains on the community. What is good social policy ought to be good law.

Avern Cohn
Detroit Board of Police Commissioners
Detroit, Michigan



To the Editor:

John H. Bunzel’s discussion of the philosophical questions raised by the Bakke case, though perceptive, slides over two points . . . which, together, support the minority view in the California Supreme Court decision.

The first is the problem of group rights versus individual rights, a discussion which Mr. Bunzel sums up with the statement: “The attempt to do away with discrimination against some groups by creating disadvantage for [other groups] should be regarded as illegal and unjust.” The argument is unexceptionable, but relevant only to a discussion of group rights versus group rights. . . . It cannot be argued that disadvantage has been created for Allan Bakke’s group—middle-class whites—because Mr. Bakke has not been admitted to the University of California’s medical school at Davis or because not more than 84 per cent of that school will be represented by his group. Disadvantage has indeed been created for the individual, Mr. Bakke, and his rights do run counter to those of the minority groups which the University of California is trying to serve. But in weighing questions of individual rights versus public or group rights, two considerations obtain: the number of people directly helped versus the number directly hurt by the decision, and the quality of the principle fostered or undermined by the decision. In the case of obscenity rulings, for example, a few people are hurt by totally free publication rights, but probably still fewer are really helped by a total lack of restriction. The principle of a free press is the only important winner in a decision which places no restrictions on publication.

In the Bakke case, the numbers are in favor of the University of California admissions policy. That the black, Chicano, and Puerto Rican communities need more physicians, particularly those who belong to their own groups, is evident. . . . Mr. Bakke and fifteen other potential white doctors are not statistically significant for their group when their claims are measured against the magnitude of need in the communities of the larger minorities.

The second point which I believe Mr. Bunzel deals with inadequately concerns the principle of equality of opportunity versus equality of condition. . . . The question is whether equality of condition, or results, should also be secured as a right for those groups which are disadvantaged. It is clear that equality of condition cannot be secured justly by awarding special privilege, but Mr. Bunzel and the California court apparently consider medical school a “condition,” a result, an end in itself. It simply is not: neither is law school. They are means toward an end. No one ever enjoyed the privileges of . . . special condition by failing to complete professional school or to pass the qualifying examinations. By opening sixteen places to minority-group students, the university is balancing the equality of opportunity, not the equality of condition, for it has been made all too clear that equal access—to medical school, for example—cannot be assured when different groups are standing on (educational) stools of differing heights. . . .

Room must be made at all levels of the educational structure for those who have been handicapped by poor instruction at lower levels. At the same time, no position or license can be awarded to a person who does not pass the minimum qualifications for competency in any field without jeopardizing the quality of service, the principle of achievement by merit, and, in medicine, physical safety and health. The lowering of the passing grades of the state bar exam in Pennsylvania is a bad precedent. Everybody loses. The implied contract of entrance to a professional school should be clear: the opportunity is here, but the result will be of one’s own making. . . .

Stephen Phelps
Albany, New York



John H. Bunzel writes:

Frederic Wile raises a delicate problem, one which I hope does not become widespread. I have heard stories about people who keep private lists of so-called minority doctors in their communities because, it is assumed, they have not met the majority standards and therefore should be avoided. I hope these stories are false. I also hope there will never be a good reason for them to be anything else but false. But I have talked to women and individuals of different minority backgrounds who worry about being unjustly categorized in just this way. They do not want their reputations compromised by condescending talk of special treatment or favor. What they want most is to be accepted and respected as doctors or lawyers or teachers—period.

A serious problem with affirmative action can arise if and when women or minority-group members are appointed, say, to a college faculty and are then labeled or regarded by their colleagues and students as “affirmative-action appointments.” They do not want or need this kind of identification or stigma. They would like to believe they were appointed on their individual merits and accomplishments and not because they are black or brown or female. That, incidentally, is what genuine equality of opportunity is all about.

Avern Cohn does not understand the California Supreme Court decision in the Bakke case if he believes it would produce only all-white law schools or, by extension, all-white police departments. The Court ruled that an admissions program should aim at enrolling disadvantaged students from all walks of life and that race should not be the only or decisive factor in determining who among the disadvantaged should be admitted. I doubt that this reading of the Constitution by the California Supreme Court would, as he says, “impose enormous strains on the community.”

Stephen Phelps, it would appear, wants to settle these thorny questions by “the numbers.” I have always had difficulty with the idea that one could or should apply the statistician’s method of computation to determine what is right or wrong, just or unjust, or (in this instance) constitutional or unconstitutional. Mr. Phelps says that the disadvantage suffered by Mr. Bakke and other potential white doctors is “not statistically significant for their group.” (That, I gather, takes care of Mr. Bakke’s rights.) He wants to calculate “the number of people directly helped versus the number directly hurt.” But such neat and tidy cost-accounting measures would, I am afraid, simply create new kinds of injustice by adopting some notion of “group theory” which, in practice, would lead to the application of group and ascriptive considerations in the evaluation of individuals.

Mr. Phelps might argue that it would lead to increased efficiency. Perhaps. But I do not think it would compensate for the unfairness to individuals. Further, as my colleague Robert L. Simon of Hamilton College points out, a pragmatic appeal to statistical generalizations can cut both ways—that is, “if it can justify preferential discrimination in favor of women and black persons, then, given corresponding gains in efficiency, it can justify discrimination against those groups as well.” I should also point out that arguments based on statistical generalizations do not address the more difficult and critical question of what is morally acceptable and unacceptable in a society such as ours that is deeply committed to individual rights and responsibilities.

Mr. Phelps is right in suggesting that the current debate over equality has to do with the inherent contradiction between an emphasis on opportunity and an emphasis on results. We could argue over whether a medical or law school is a means to an end or an end in itself. The fact is it is both. I have rarely found that means and ends can be easily separated.

Where Mr. Phelps and I differ is in our respective answers to this basic question: is a positive race-conscious admissions policy based on minority-group membership the most effective and democratic way to bring about equal opportunity for certain minorities without violating the Fourteenth Amendment’s guarantee of equal protection of the laws to all persons? His answer is yes—and his arguments are thoughtful and deserve careful consideration. My answer is no. I do not believe we can achieve either equality or justice for everyone by urging the government (or an agent of the government, such as a university) to adopt a preferential policy based solely on race. I am troubled by the notion that the government can encourage and practice discrimination in order to get rid of discrimination.

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