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UC Davis Law Review




The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can survive, but Bakke was a case with two inheritances. In addition to adopting a strict scrutiny test, the Court allowed race to be a factor in admissions because colleges and universities have unique claims to academic freedom under the First Amendment. That autonomy shields their efforts to enroll a diverse student body.

This retrospective on Bakke comes at a particularly opportune moment. The decisions upholding affirmative action in higher education have always been close ones, and with the departure of Justice Anthony Kennedy, who has been a crucial swing vote, Bakke’s future is uncertain. This Article will show that Bakke has long been identified as a race case in the public’s imagination, one that reflects ongoing struggles to rectify a history of injustice and a reality of entrenched inequality. Yet, the decision has survived in the courts as an exemplar of the freedom of colleges and universities to experiment with ideas and to nourish the conditions for a healthy democracy. This dual legacy has seldom been recognized: racial equality generates all the press while academic freedom quietly powers the jurisprudence.

This legacy has roots in the case itself. Allan Bakke understood his lawsuit as a challenge to reverse discrimination, and despite the University’s efforts to invoke institutional autonomy as a defense before the California Supreme Court, the state justices framed the case in purely racial terms. Only when the litigation reached the United States Supreme Court did academic freedom emerge as a significant consideration. This Article contends that for at least some members of the Court, the autonomy accorded to institutions of higher education was directly related to a growing recognition of corporate speech rights under the First Amendment. Indeed, the Justices’ internal memoranda made palpable their concern with safeguarding the liberty interests of corporate entities, including colleges and universities.

The incomplete recognition of Bakke’s two inheritances has had important consequences for its legacy. The failure to elaborate the liberty interests in the case has limited its precedential value when diversity is invoked as a rationale for other forms of race-based decision-making. In dismissing diversity’s relevance, the Court has simply treated academic freedom as sui generis without analyzing the institutional concerns that animated protections for colleges and universities. At the same time, Bakke’s liberty jurisprudence has been largely isolated from other areas of First Amendment law, particularly corporate speech rights, which have come to enjoy increasing protection. As a result, Bakke has been vulnerable to claims that it is a doctrinal anomaly — distinct from other equal protection precedents that reject a diversity rationale and divorced from other First Amendment decisions that uphold institutional autonomy. In fact, though, Bakke’s dual inheritances make it difficult to undo the Court’s solicitude for academic freedom — and its deference to the circumscribed use of race to enroll a diverse student body — without calling into question the constitutional grounds for ever more vigorous protection of corporate rights.

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University of California - Davis

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