3 6 4C H A P T E R 1 8 ■ L e g a l R e a s o n i n gto the states in areas that involved what the Court declared to be suspect
classifications or fundamental rights.
This new test was crucial for the decision of Brown v. Board of Education
(1954), which declared segregation in public schools unconstitutional. The
Brown opinion does not directly mention strict scrutiny, but this test looms
in the background. Segregation clearly involves a suspect classification, but
the Court emphasizes, “the opportunity of an education... is a right which
must be available to all on equal terms” (emphasis added). The next step
is to argue that segregated schools violate this right by their very nature,
even if all “tangible” factors are equal. This violation of a fundamental right
triggers strict scrutiny, and the Brown opinion then simply assumes that seg-
regation in education will fail this test. Separate but equal is thus found un-
constitutional, at least in education, and Plessy is in effect overturned.The Bakke Case
After Brown, the Supreme Court struck down segregation in many other
areas—transportation, parks, libraries, and so on—as well as laws against
racial intermarriage (though not until 1967, after Barack Obama’s parents
were married). Another string of decisions required states to use busing as a
means to end segregation in school systems. The Court also required some
employers to hire or promote minimum percentages of minorities to over-
come the effects of illegal discrimination in employment.
In response to these court decisions, some schools and companies voluntar-
ily took steps to overcome what they saw as the effects of past discrimination.
These steps required them to use racial classifications, and that raised the is-
sue of reverse discrimination. Part of the issue was about what to call such
programs. Their opponents label them “reverse discrimination,” but their
defenders refer to them as “affirmative action.” Both names clearly involve
evaluation. A more neutral description might be “preferential treatment.”
The classic case in this area is Regents of the University of California v. Bakke
(1978) (hereafter, Bakke). The basic situation was that the medical school of
the University of California at Davis had very few minority students, so
they created a special admissions program that set aside sixteen seats for mi-
norities who were disadvantaged. Bakke, who was not a member of any of
the specified minorities, applied to the school but was rejected even though
he had higher scores on admissions tests than some minority members who
were admitted under the special admissions program.
Bakke claimed that Davis’s special admissions program violated the
equal protection clause of the U.S. Constitution, the California Constitution,
and Title VI of the Civil Rights Act of 1964, which provides:
No person in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance.97364_ch18_ptg01_351-382.indd 364 15/11/13 11:38 AM
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