The Language of Argument

3 6 5

T h e L a w o f D i s c r i m i n a t i o n

The Supreme Court was thus asked to rule on four main issues:

1. Did the Davis special admissions program violate the equal protection
   clause of the Constitution?


2. Does reference to race without judicial findings of particular past
   discrimination violate this constitutional guarantee?


3. Did the Davis special admissions program violate Title VI of the Civil
   Rights Act?


4. Should Davis be required to admit Bakke into its medical school?
   The decision of the Supreme Court on these issues is so complicated that it
   takes a scorecard to follow it:

Because the justices split into two groups of four, the remaining justice,

Powell, determined the majority on most issues. Powell, however, was the

only justice who argued that the Davis program was unconstitutional. Four

others (Brennan, Marshall, Blackmun, and White) dissented. The remaining

four (Burger, Stevens, Stewart, and Rehnquist) chose not to address this con-

stitutional issue because they had already ruled out the Davis program un-

der Title VI. Since a majority did not join Powell in his opinion, the Court did

not explicitly declare the Davis program unconstitutional. But the Davis pro-

gram was held to violate Title VI, and Davis was ordered to admit Bakke, be-

cause Burger, Stevens, Stewart, and Rehnquist did join Powell on these issues.

Despite Davis’s loss, the Court took the opposite position on the second issue.

Powell argued that it was not always unconstitutional for the state to refer

to race, and he created a majority when he was joined by Brennan, Marshall,

Blackmun, and White. Thus, each group of justices got part of what it wanted.

The constitutional issues are raised most directly in the opinions of Powell

and Brennan (excerpted below). These opinions differ not only in their

conclusions but also in their interpretations of the equal protection clause.

Powell argued that the Davis program and any consideration of race must

be subjected to the test of strict scrutiny. He held that the Davis program did

not meet the high standards of strict scrutiny, but some other consideration

of race might, such as in the Harvard College admissions program, which

used race as a “goal” rather than as a “quota” (much like the University of

Michigan Law School admissions program in the Grutter case below).

Question

Ruled

On

Brennan,

Marshall,

Blackmun,

and White Powell

Burger,

Stewart,

Stevens,

and Rehnquist The Majority

1 No Yes No decision No decision

2 No No No decision No

3 No Yes Yes Yes

4 No Yes Yes Yes

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