"I knew that the Solicitor General's brief would go our way when Attorney General Griffen Bell and Vice President Mondale came to the Second Circuit Judicial conference, which I was attending, in Buck Hills Falls, Pennsylvania. Jim Nabrit had heard that they would visit and called me to suggest that I lobby Mondale. I intercepted him as he descended from his helicopter. He interrupted, 'Don't worry, Jack, it's going to be okay.'
"The brief the government filed led off with the statement that 'race may be taken into account to counteract the effects of prior discrimination,' but argued against rigid quotas.
The "Bakke" decision was close and complex. By a vote of five to four the court upheld the use of race as a basis for university admissions, but would not support fixed quotas. Justices Stevens, Rehnquist, and Stewart and Chief Justice Burger thought Title VI prohibited taking race into account at all. They voted to admit Bakke, but had only four votes against any consideration of race. Justices Brennan, Marshall, White, and Blackmun agreed that the Fourteenth Amendment and Title VI permitted race to be taken into account, even though Davis set aside a fixed number of places for qualified minority applicants. One vote short for the sort of affirmative action that the University of California had employed.
"Justice Powell's opinion held that Congress, in adopting Title VI, which outlaws discrimination in institutions that receive federal funding, employed the strict scrutiny standard of the Fourteenth Amendment's equal protection clause. He concluded that a quota could not be justified under the standard. But, he decided, taking race into account in order to create diversity was an aspect of academic freedom. So long as Davis considered race among other factors in considering each applicant and did not admit a fixed number of minority students, the university might constitutionally have an affirmative action program. Powell decided that Bakke had been treated unconstitutionally because a fixed number, sixteen places, had been reserved for minorities. Davis had to admit Bakke, even though under a system of non-preference quotas affirmative action would be acceptable. Race-sensitive admissions had survived, for that added up to five votes for an affirmative action program, although not the one Davis had used in rejecting Bakke.
"Ironically, Powell's swing vote approved admitting blacks because in part it helped whites..."
Pp.505-506
Crusaders in the Courts: Legal Battles of the Civil Rights Movement, Anniversary Edition
amazon.com
Sunday, January 12, 2014
CRUSADERS IN THE COURTS...EXCERPT
CRUSADERS IN THE COURTS, "Affirmative Action," by Jack Greenberg (2004):
"I knew that the Solicitor General's brief would go our way when Attorney General Griffen Bell and Vice President Mondale came to the Second Circuit Judicial conference, which I was attending, in Buck Hills Falls, Pennsylvania. Jim Nabrit had heard that they would visit and called me to suggest that I lobby Mondale. I intercepted him as he descended from his helicopter. He interrupted, 'Don't worry, Jack, it's going to be okay.'
"The brief the government filed led off with the statement that 'race may be taken into account to counteract the effects of prior discrimination,' but argued against rigid quotas.
The "Bakke" decision was close and complex. By a vote of five to four the court upheld the use of race as a basis for university admissions, but would not support fixed quotas. Justices Stevens, Rehnquist, and Stewart and Chief Justice Burger thought Title VI prohibited taking race into account at all. They voted to admit Bakke, but had only four votes against any consideration of race. Justices Brennan, Marshall, White, and Blackmun agreed that the Fourteenth Amendment and Title VI permitted race to be taken into account, even though Davis set aside a fixed number of places for qualified minority applicants. One vote short for the sort of affirmative action that the University of California had employed.
"Justice Powell's opinion held that Congress, in adopting Title VI, which outlaws discrimination in institutions that receive federal funding, employed the strict scrutiny standard of the Fourteenth Amendment's equal protection clause. He concluded that a quota could not be justified under the standard. But, he decided, taking race into account in order to create diversity was an aspect of academic freedom. So long as Davis considered race among other factors in considering each applicant and did not admit a fixed number of minority students, the university might constitutionally have an affirmative action program. Powell decided that Bakke had been treated unconstitutionally because a fixed number, sixteen places, had been reserved for minorities. Davis had to admit Bakke, even though under a system of non-preference quotas affirmative action would be acceptable. Race-sensitive admissions had survived, for that added up to five votes for an affirmative action program, although not the one Davis had used in rejecting Bakke.
"Ironically, Powell's swing vote approved admitting blacks because in part it helped whites..."
Pp.505-506
Crusaders in the Courts: Legal Battles of the Civil Rights Movement, Anniversary Edition
amazon.com
"I knew that the Solicitor General's brief would go our way when Attorney General Griffen Bell and Vice President Mondale came to the Second Circuit Judicial conference, which I was attending, in Buck Hills Falls, Pennsylvania. Jim Nabrit had heard that they would visit and called me to suggest that I lobby Mondale. I intercepted him as he descended from his helicopter. He interrupted, 'Don't worry, Jack, it's going to be okay.'
"The brief the government filed led off with the statement that 'race may be taken into account to counteract the effects of prior discrimination,' but argued against rigid quotas.
The "Bakke" decision was close and complex. By a vote of five to four the court upheld the use of race as a basis for university admissions, but would not support fixed quotas. Justices Stevens, Rehnquist, and Stewart and Chief Justice Burger thought Title VI prohibited taking race into account at all. They voted to admit Bakke, but had only four votes against any consideration of race. Justices Brennan, Marshall, White, and Blackmun agreed that the Fourteenth Amendment and Title VI permitted race to be taken into account, even though Davis set aside a fixed number of places for qualified minority applicants. One vote short for the sort of affirmative action that the University of California had employed.
"Justice Powell's opinion held that Congress, in adopting Title VI, which outlaws discrimination in institutions that receive federal funding, employed the strict scrutiny standard of the Fourteenth Amendment's equal protection clause. He concluded that a quota could not be justified under the standard. But, he decided, taking race into account in order to create diversity was an aspect of academic freedom. So long as Davis considered race among other factors in considering each applicant and did not admit a fixed number of minority students, the university might constitutionally have an affirmative action program. Powell decided that Bakke had been treated unconstitutionally because a fixed number, sixteen places, had been reserved for minorities. Davis had to admit Bakke, even though under a system of non-preference quotas affirmative action would be acceptable. Race-sensitive admissions had survived, for that added up to five votes for an affirmative action program, although not the one Davis had used in rejecting Bakke.
"Ironically, Powell's swing vote approved admitting blacks because in part it helped whites..."
Pp.505-506
Crusaders in the Courts: Legal Battles of the Civil Rights Movement, Anniversary Edition
amazon.com