Taking the Stand

by Alan Dershowitz

  Our neighborhood idol was Jackie Robinson, who by his skill, speed, grace, and character broke down the color barrier and who became the best player on my beloved Brooklyn Dodgers, leading his team to several pennants and its sole World Series championship (only to be unceremoniously traded to the hated New York Giants at the end of his career, a trade Robinson rejected by retiring with dignity).

  At college my hero was Professor John Hope Franklin, the first African-American to chair an academic department at a college that had not been historically black.

  At law school, two of my classmates were African-American twins, one of whom went on to become a judge on New York’s highest court, the other of whom became a professor.

  All that these and other heroes needed in order to achieve great success was the elimination of racial barriers—color blindness. That had been the case for Jews: As soon as religious barriers were dropped, Jews raced to the top of the legal, medical, and academic professions.2 I believed that the same would be true of all victims of racial and other forms of discrimination. All they needed was equal opportunity and equal access to achieve equal outcomes. I believed it because I saw it with my own eyes—at least with regard to my heroes.

  I lived through the civil rights movement, at first vicariously and then more directly. When I was fifteen, the Supreme Court decided Brown v. Board of Education, mandating desegregation of public schools. I recall reading the decision and applauding both its conclusion and its social science methodology. It was an important first step toward making Martin Luther King’s dream of equality a reality.

  During the 1950s and ’60s, there was little talk of race-specific affirmative action—of having positive, rather than negative, decisions based on the race of the person. It was enough, we believed, to eliminate race from decision making. The result, we believed, would be equal opportunity and success, as it had been for Jackie Robinson, John Hope Franklin, and my law school classmates.

  We were unaware of the pervasive poverty and deprivations—educational, economic, medical, nutritional—that would make real equality impossible, at least in the near term, for so many black people, even if legal inequalities were eliminated.

  I should have known better, especially after I twice traveled to the Deep South on occasions during the turbulent years of the civil rights movement. My first trip was in the early 1960s, as part of a student group that was trained at the Howard Law School to be “observers” of the civil rights struggle. During that short visit I had little direct contact with local black residents. I did meet several black lawyers and civil rights workers, but they were generally from similar backgrounds to my own. On my second trip, by myself in the early summer of 1965, Harvard Law School sent me to several historically black colleges in an effort to recruit students for a special program we had instituted to help prepare minority students for law school. I traveled and lived on the campuses of predominantly black colleges for several days. I met students and professors, many of whom came from middle-class homes.

  I also spent time at several southwestern colleges and met with Native American and Hispanic students. I had insisted that our recruitment efforts not be limited to African-American students. Even back then, I felt uncomfortable having any decisions, even affirmative ones, based on race alone. I believed then, and I believe now, that the ideal goal of affirmative action is to level the playing field by providing a current advantage to individuals who were subject to past disadvantages, in order to assure future equality. That is the theoretical ideal—individual justice to assure that people are judged by the quality of their character and other meritocratic criteria. But I soon learned that in practice other factors inevitably come into play. The real issue is how to strike the appropriate balance between the theoretical ideal and the practical necessities.

  This issue came to the fore in a series of controversial Supreme Court decisions in which I played different roles. The first was the DeFunis case in 1974,3 brought by a white applicant named Marco DeFunis, who had been rejected by the University of Washington Law School. He claimed that if he had been black, he would have been admitted under the school’s affirmative action program. The school did not dispute this claim, but argued that it had the right to try to achieve “a reasonable representation” of minority students.

  The lower court ruled in favor of DeFunis and ordered his admission. By the time the case reached the Supreme Court, he had nearly graduated, and the school told the justices that he would be allowed to graduate even if the court ruled against him. For that reason, the high court dismissed the case as moot, thus postponing the decision as to whether it would uphold race-specific affirmative action programs. But Justice William O. Douglas, probably the court’s most liberal member at the time, and a man who had grown up in the state of Washington, wanted to decide the issue. He wrote a dissenting opinion that represented the conventional liberal view with which I, and many in my generation, had been brought up. He argued that the equal protection clause does not prohibit law schools from evaluating an applicant’s prior achievements in light of the barriers that he had to overcome.

  A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him. Because of the weight of the prior handicaps, that black applicant may not realize his full potential in the first year of law school, or even in the full three years, but in the long pull of a legal career his achievements may far outstrip those of his classmates whose earlier records appeared superior by conventional criteria.4

  Douglas acknowledged that black applicants might, in practice, be “the principal beneficiaries” of such a race-neutral admissions policy, but he opined that “a poor Appalachian white, or a second generation Chinese in San Francisco, or some other American whose lineage is so diverse as to defy ethnic labels, may demonstrate similar potential and thus be accorded favorable consideration by the Committee.”5

  Justice Douglas was, in fact, describing his own background in Washington State.6 His autobiography was informing his constitutional ideology,7 as is often the case.8 He went on to distinguish the approach he described from the one employed by the University of Washington Law School, which made its admissions decision solely on the basis of race.

  He concluded that since the “clear and central purpose” of the equal protection clause was to “eliminate all official sources of racial discrimination in the states,” it follows that each applicant must be evaluated in “a racially neutral way.”9 Douglas thus rejected the school’s efforts to achieve “representation” of minorities:

  The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans.10

  Justice Douglas’s dissenting views quickly became the standard approach of liberals, like me and many of my friends (though always, in the back of my head, I remembered Douglas’s membership in a discriminatory club and his argument with Judge Bazelon).

  I became an active advocate for an aggressive affirmative action program at Harvard based on nonracial criteria. I participated in numerous campus and faculty meeting debates, believing that I was on the side of the angels, favoring a system that would produce real diversity without violating the racial equality mandate of the Constitution.

  But not every liberal accepted Justice Douglas’s race-neutral approach. Many black leaders saw the issue not as one of individual rights, but rather as one of group aspirations. Blacks had a collective right, under this view, to “reasonable representation” in the s
tudent bodies of universities and other institutions, both public and private. Some went so far as to argue for “proportional representation.” This raised the specter of quotas, which might limit the number of those accepted or hired to their proportion of the population.

  The fear of quotas or proportional representation increased as schools throughout the country adopted affirmative action programs with numerical elements. Some contained “targets” for the number of admitted blacks. Other had “floors.” Nonblack students who were denied admission to schools with such programs began to file lawsuits.

  As these cases made their way through the courts, a conflict arose between some leaders of the African-American and Jewish communities.11 Most (but not all) African-American leaders were deeply committed to race-specific affirmative action programs that gave advantages to all black applicants, regardless of their individual backgrounds. Most colleges preferred this group approach as well, since it was simpler and they preferred to admit wealthy, well-educated, and privileged black candidates over poorer, less well-educated, and more “difficult” inner-city blacks. Derek Bok, first the dean of Harvard Law School and then the president of Harvard University, candidly acknowledged that it was far easier to integrate African-American graduates of Groton, Fieldston, and St. Paul’s into Harvard than it would be to integrate inner-city public school graduates.12

  Many (though not all) Jewish leaders were worried that the hard-earned access of Jews to elite schools would be endangered by what they regarded as “racial quotas.”13 They recalled, with bitterness, the “quotas” that had limited Jewish applicants to single-digit “Jewish places” in college and university admissions.14 There is, of course, a difference between “floor quotas” and “ceiling quotas.” Blacks were seeking a floor on the number of affirmative action admittees: no less than 10 or 15 percent. Jews had been subjected to “ceilings”: no more than 7 to 8 percent. (When I started Yale Law School in 1959, I noticed that the university’s motto was written in Hebrew—the biblical words Urim V’Tumim. When I asked a friend who had graduated Yale College why Yale’s motto was in Hebrew, he replied: “It’s a test—if you can read it, you can’t go here!”) But in a zero-sum game—which admissions surely are—floors can impose ceilings, especially if the black percentage is taken from the Jewish percentage, as Jewish leaders feared was happening. This reality led to the famous “bagel” exchange:

  Dr. Chase N. Peterson, dean of admissions at Harvard, recently addressed a group of Jewish faculty members suspicious that Harvard had decided to reduce the number of Jews it would admit. Peterson averred that there is no particular “docket” or area of the country whose quota of admissions has been reduced. Rather, he said, it is “the doughnuts around the big cities,” which are not as successful with the Harvard Admissions Committee as they used to be.… “But now we have to be terribly hard on people with good grades from the good suburban high schools, good, solid clean-nosed kids who really don’t have enough else going for them.” The doughnuts, said Peterson, included such areas as Westchester County and Long Island, New York, suburban New Jersey, and Shaker Heights, Ohio. When he described these areas to the Jewish faculty members, the Crimson reports, one stood up and said, “Dr. Peterson, those aren’t doughnuts, they’re bagels.”15

  After the account of this exchange appeared, I received dozens of letters and calls from indignant alumni and parents of applicants concerned that Harvard was returning to a quota system.

  These concerns increased when the Bakke case came to the Supreme Court, in 1977,16 and Harvard took the lead in defending race-specific affirmative action programs, such as the one it had adopted. My brother, Nathan, was then working as the top lawyer for the American Jewish Congress, a generally progressive social action organization. He asked me to help draft an amicus brief in the Bakke case that presented the views of Jews who supported civil rights but who were concerned about the impact of race-specific affirmative action programs on Jewish applicants. It was a daunting task, requiring an exquisite balance.

  The Bakke case involved a white applicant to the medical school at the University of California at Davis. Allan Bakke had been denied admission, he claimed, based on his race. This time there could be no claim of mootness—Bakke had not been admitted to medical school. The court would have to confront directly the divisive issues of race-specific affirmative action.

  Our brief strongly supported affirmative action as a mechanism for remedying past “educational handicaps” and for assuring diversity among the student body. But we opposed the concept that every racial, religious, or ethnic group was entitled to proportional representation—or quotas:

  A society permeated by racial, ethnic, religious, and sexual proportional representation would be something quite different from the America we have known.… Racial and ethnic classifications would be officially sanctioned and recognized in all walks of life; each professional or office holder would be regarded, and would regard himself, as a representative of the group from whose quota he comes.… Individual aspiration would be limited by the proportionate size of the group to which the individual belongs.17

  We argued in favor of individualized preferences based on actual experiences:

  If individual blacks applying to Davis Medical School have suffered economic hardship because they encountered discrimination, attended segregated schools or lived in segregated neighborhoods, these facts could be brought to the attention of the Admission Committee and their records evaluated accordingly. Any other system of preferences based on mere membership in a group which, because of its color or physiognomy, has suffered discrimination can only result in a society in which race consciousness and partisanship become the significant operative forces and race prejudice, rather than being minimized, is legitimated.18

  We quoted black leaders, such as Roy Wilkins, who opposed proportional representation:

  No person of ability wants to be limited in his horizons by an arbitrary quota or wants to endure unqualified people in positions that they fill only because of a numerical racial quota.…

  God knows it is true that the cards have been deliberately stacked against blacks. Every feasible step, even those costing extra money, should be taken to correct this racialism.

  But there must not be a lowering of standards.19

  We urged the court to require the medical school to develop an affirmative action program that was compatible with the dream of a color-blind America:

  Schools may, and we think should, evaluate both grades and test scores in the light of a candidate’s background; whether he or she came from a culturally impoverished home; the nature and quality of the schools he attended; whether family circumstances required him to work while attending school; whether he chose to participate in athletics, the orchestra, school newspaper, literary magazine, campus government; whether he had demonstrated a concern and interest in the broader community by political activity or volunteer work among the sick or underprivileged; and whether he had manifested leadership, industry, perseverance, self-discipline and intense motivation.20

  Moreover, we argued, if the petitioner were to conclude that the medical profession as presently composed fails to serve the disadvantaged elements in society, “it could expressly offer special consideration in the admissions process to those who enter into a binding commitment to serve for a specified period in an urban ghetto, barrio or Indian reservation.”21

  Our point was that these remedies would accord greater educational opportunities to all “economically and culturally deprived” applicants without running afoul of the equal protection clause of the Constitution.22

  The Supreme Court’s decision in Bakke accepted our argument against the sort of racial quotas employed by Davis Medical School. But it approved affirmative action programs, such as the one used by Harvard College, that vested enormous discretion in the admissions committee. A five-person majority ruled that the type of admissions program used by Davis did not pass constitutional muster, while t
he type used by Harvard College did. Justice Powell, whose opinion contained the judgment of the court, expressly singled out Harvard College for approval.23 He quoted extensively from the description of the Harvard program contained in the amicus curiae brief submitted by Harvard, Columbia, Stanford, and Pennsylvania Universities.24 Powell apparently found it easier to point to an existing system than to define the factors that would satisfy the constitutional and statutory standard.

  I felt that Powell’s selection of Harvard College as a model for Davis Medical School was inapt, both because medical school admission is different from college admission25 and because Harvard, with its vast applicant pool, is vastly different from Davis.26 But Powell had a good reason for pointing to the Harvard undergraduate admissions program: It was so vague and discretionary as to defy description. It reposed all decision making with a group of Platonic guardians whose task was to shape an entering class so as to maximize its diversity in unspecified ways. A Harvard admissions officer might be unable to define the factors that make a good candidate for admission, but was supposed to know a Harvard man or woman when he saw one.

  The Bakke decision was, in my view, a triumph of ambiguity and discretion over clarity and candor. Powell condemned Davis Medical School for reserving a discrete number of places in each class for disadvantaged members of specified minority groups, but he applauded Harvard College for employing a process that eschews “target-quotas for the number of blacks” but allows “the race of an applicant [to] tip the balance in his favor just as geographic origin or a life spent on a farm tip the balance in other candidates’ cases.”27

  At bottom, Powell’s opinion said little about affirmative action as such. It simply delegated to universities the discretionary power to decide on the degree and definition of the diversity—including or excluding racial factors—that they felt enhanced the educational experiences of their students.