Counterpoints

Affirmative Action: Yes

McGeorge Bundy’s article on the Bakke case eloquently deals with a matter of complicated justice. In every lawsuit one side must win and one must lose, but the result the author urges in this case means that one group must be diminished while another is raised up to its level. Mr. Bundy’s position is, should Bakke lose, the harm to white males as a group will be so small as to be constitutionally imperceptible.

The acceptance of this argument is almost intolerable to a society which has come to believe that our system has as its primary value the individual above all. It is a proposition to which many of us (notably Justice William O. Douglas in his opinion in DeFunis v. Odegaard) have subscribed for so long that it is a tenet difficult to abandon. In that value system, ideally and constitutionally, one judges and is judged by neutral characteristics in which color plays no part

Yet Bundy contends that the theory must change, and he is totally persuasive. He argues simply that the system must be sufficiently flexible to accommodate a need which it cannot otherwise meet, and that the United States Supreme Court has the power to effect such accommodation by constitutional interpretation. Failing this, a built-in inequality will be constitutionally preserved into the next century.

The old system stands on the false premise that identifiable groups have been relatively equal. If this were the case, then the goal would be to keep the system open and legal barriers down. Thus the fit would survive to reach the top of the ladder. At least one group, however, has been unequally treated for two hundred years. Saying it now is equal does not make it so. If the system cannot bend a little for a time to make up for such inequality, it cannot achieve parity—those now ahead have too much of a head start. The system itself must then give way to one which is more realistic.

This is not the inevitable result. It does not stretch the Constitution too far to incorporate into equal protection the concept of affirmative action. The Court has already faced this need in the struggle for effective school desegregation. Although in Brown v. Board of Education the Court struck down state-mandated segregation, seventeen years later it recognized, in Swan v. Charlotte Mecklenburg Board of Education, that the elimination of legal barriers does not go far enough. Raceconscious school assignments are accepted as necessary to achieve equal opportunity in education. The Bakke case raises the same issue on a higher and wider level and should reach the same result.
LIZABETH A. MOODY
Trustee and former President
Women’s Law Fund, Inc.

A strict construction of the language of the Constitution provides an impeccable argument that Bakke was denied the equal protection guaranteed him by the Fourteenth Amendment. The force of this narrow interpretation is amply illustrated by the fact that it has captivated such distinguished liberal constitutional scholars as Professor Alex Bickel of Yale and Mr. Justice William O. Douglas.

However, the broader purposes of the Fourteenth Amendment would be ill-served by so strict a construction of its language. A racially neutral or totally color-blind admissions policy will not at this stage in our history permit us to provide an opportunity for educational excellence to an adequate number of our minority citizens. Such an opportunity is indispensable—not only to the broad purposes of the Fourteenth Amendment but, in all probability, to the future health of our nation.

This does not mean the adoption of quotas or even the admission of unqualified applicants, but it does mean that the Constitution should not be held to prohibit entirely any consideration of race in evaluating those applicants who are qualified.
BENNO C. SCHMIDT
New York, N.Y.

McGeorge Bundy lays out the Court’s work: to weigh conflicting values, not narrow to Bakke’s absolute claim.

While admissions officers may be “practiced in husbanding their candor,” former Dean Bundy exposes their strength when he suggests they do look at other things besides test scores to identify promise and quality, and he makes the case for me when he suggests race is and permissibly should be one of those other things, logically, to be looked at. To neutralize it as a factor at this point in history would require the ethical blinders that once narrowed our vision to the claim that separate was equal.

A majesty of our history is the room the Constitution leaves to do what is right. Bundy eloquently invites the justices beyond the narrow chains of legal reasoning offered to them in this case and compels them toward the uplands of our society’s decent interests.
EUGENE PATTERSON
Editor and President
St. Petersburg Times

When the justices go to decide Bakke, one pivotal question they must confront is whether the kind of special procedures that were used in this case are truly necessary to insure that a minimum number of minority students have places in medical and graduate schools during the next decade. McGeorge Bundy shows that no reasonable person—let alone an openminded Supreme Court justice—can possibly conclude that ruling for Allan Bakke will not gravely impair such minority opportunities, or that any program other than the general kind used by the University of California presents a practical alternative way to achieve this goal.
DR. ALAN F. WESTIN
Editor
The Civil Liberties Review

McGeorge Bundy’s article is one of the most compelling and soundly reasoned arguments for affirmative action that we have seen to date.
BENJAMIN L. HOOKS
National Association for the
Advancement of Colored People

McGeorge Bundy’s analysis of the Bakke case was profound and enlightening. Those who do not support affirmative action in general will rejoice in a negative decision by the Supreme Court. I believe that the Court is, in essence, ruling on the whole issue of whether minorities in our society can be given special consideration as we try to remove the obstacles and scars of hundreds of years of racism.
CORETTA SCOTT KING
The Martin Luther King, Jr.
Center for Social Change

From the day applicants exceeded places in entering classes, admissions criteria have involved qualifications other than previous academic performance and test scores, and properly so— qualifications often measurable only by highly subjective means. The new element, if new it is, is the increasing importance of society’s needs in defining such qualifications. These needs, in the nation’s interest, must be reflected in admissions “goals,” not just for the sake of the nonwhite minority but for the sake of the white majority.
NILS Y. WESSELL
President
Alfred P. Sloan Foundation

The national commitment to racial justice and equity is at stake in the crisis around the false issue of “reverse discrimination.” If parents of five children recognize that two of them are seriously ill, it is not an injustice to the healthy three to administer medical preference to those who are infected. In fact, such preferential ministry benefits the entire family, for if those who are ill are not cured, the survival of the family is imperiled.
DR JOSEPH E. LOWERY
President
Southern Christian
Leadership Conference

If the Constitution allows us to keep blacks out of our medical schools because they are not as smart as whites, can we not bar blacks from kindergartens and high schools for the same disability?
GEORGE PANCERA
San Jose, Calif.

Affirmative Action: Think Twice

It seems to me as dangerous as it is absurd to tinker with the majestic neutrality of a color-blind Constitution. I recognize, of course, the fact of black poverty, unemployment, and disadvantage. I understand the black despair which cries for expedient measures. But I believe those expedient measures will undermine constitutional principles for evanescent goals.
Of course we need more black doctors, Hispanic lawyers, and Chicano professors. But these goals should not be achieved by giving a racial twist to a Constitution which black leaders for seventy-five years rightly insisted was intended to be “color-blind.”
McGeorge Bundy’s position will inevitably result in an institutionalized division of the pie of opportunity by bureaucratic decisions as to the group disadvantaged and the numbers of each group to be benefited. Anyone familiar with institutions knows that measures of temporary relief so denominated become virtually permanent parts of a system.
Moreover, I have seen the enormous progress generated by color-blind interpretation of the Constitution, and the reliance on the natural forces of our society once legal barriers have been removed. As early as 1966, the Field Foundation granted scholarship funds for black students, on the initiative of Emory University Law School in Atlanta. Thereafter through 1971, annual grants from that private philanthropy to a private Grade A law school produced approximately fifty black lawyers without compulsion.
The University of California’s methods will create a sense of unfairness, leading to backlash and a reversal of social progress.
MORRIS B. ABRAM
Paul, Weiss, Rifkind,
Wharton & Garrison
New York, N.Y.

When I go to a doctor or a lawyer, I want the best I can afford, not one who had to plead nonwhite for admission to school; who had to demand extra coaching to get by required courses.
JESSE OSBORN
St. Louis, Mo.

In judging the pros and cons of race consciousness, we must start weighing the overall impact of minority fetishism on U.S. law, business, crime, urban policy, education, and even communications.
As Senator Daniel Patrick Moynihan has courageously suggested, U.S. law is beginning to smack of Nuremberg. In May, under signature of the departed Bert Lance, the federal Office of Management and Budget entered the ethno-racial definition business—somebody with one South American grandmother is a minority group member, a full Syrian-American is not. The occasion: promulgation of new federal data-collecting standards. In a related vein, several cities have even set up racial inspection and evaluation offices. Such is the fruit of the quota-affirmative action mentality.
Or look at urban and educational policy. Pro-minority housing subsidy schemes (notably the Federal 235 and 236 programs) have destroyed whole city neighborhoods. Racial busing has prompted white flight in a number of cities. Minority-oriented educational sociology—downgrading basics, eliminating culturally “unfair” tests, promoting and graduating illiterates—has at least contributed to growing public school inability to teach reading, writing, and arithmetic skills.
Another point. Since the midsixties, U.S. law enforcement has also been undercut by minority policy. Because many criminals come from “deprived” backgrounds, increased emphasis has been put on their “rights” rather than those of their victims.
Corporations, too, are being undercut by the spirit that undercut Allan Bakke. Companies supposed to be manufacturing steel, aircraft, or automobiles are being forced to divert their efforts to compensatory sociology. In October, Commerce Secretary Juanita Kreps announced that her department

is developing a “Social Performance Index” to measure corporate social concern and awareness! Among the yardsticks: affirmative action hiring, buying from minority-owned businesses.
Finally, today’s minority fetishism is even spreading to communications. Minorities are demanding quotas in news coverage as well as in media employment. And in what may be the ultimate absurdity, black actor Raymond St. Jacques has just criticized Star Wars for his “Terrifying realization that black people (or any ethnic minority for that matter) shall not exist in the galactic space empires of the future.”
The minority fetishism and ethnic Balkanization of the last decade or so has already cost Americans dearly. As of 1977, it’s time to try to turn things around — and the Bakke case ought to be a beginning.
KEVIN P. PHILLIPS
The American Political
Research Corporation
Bethesda, Md.

McGeorge Bundy’s logic is more persuasive than either his political or his ethical judgment. Men and women, black and white, can understand what it is to treat one another as equals however often they may fail in that endeavor. But only a nation of saints might reasonably anticipate that a long-sustained policy of reverse discrimination will have effects other than those associated with plain discrimination; that is, perpetuation of the antagonism and other barriers that separate black from white. Mr. Bundy exemplifies the process: long a champion of the pursuit of excellence as the proper goal of those involved in higher education, he now insists that it is sufficient—for blacks—to be qualified. With friends like this, minorities need no enemies.
E. L. PATTULLO
Winchester, Mass.

I agree with Mr. Bundy that “colorblindness” is a metaphor which cannot and should not mechanically guide our social policy, and that strenuous efforts are required and justified to redress the consequences of past (and present) discrimination against blacks and other disadvantaged minorities in every sphere of life.
Where I differ with Mr. Bundy is in equating the California quota system at issue in the Bakke case with “all forms of affirmative action that are aimed explicitly at helping racial minorities.” For me, the use of quotas is an immoral means—and an ineffective one, at that—to secure a highly proper and moral end.
At many points in his article, Mr. Bundy refers to the proportion of blacks in the population as an appropriate point of reference for affirmative action programs in professional schools. This is misleading. Only qualified college graduates should be eligible for admission to graduate and professional schools. Mr. Bundy never tells us the percentage of blacks and other minority students in that pool.
I have long been convinced that test scores are not fully reliable tools for measuring a candidate’s “promise of professional distinction,” which should be the only criterion for admission to a law school. Several studies of student performance at the Yale Law School indicate that differences of 75 to 100 points in the test scores are significant, and must be considered, although interesting individual exceptions to even that generalization occur. Lesser differences are often overcome by factors of motivation, character, discipline, and personality. When I was dean of the Yale Law School (1955-1965), I advocated that we admit the exceptionally well-qualified candidates first, and select the others—who among Yale applicants constituted in fact a fungible group of well-qualified B students—by lot.
The basis for our conclusion is supported by the experience of black and other minority law students at the Yale Law School. A recent study of their performance indicates that where their test scores depart radically from the norms for the class, many do not do satisfactory work, and a considerable number fail or withdraw, but that where their test scores are not far from the norm, they do the work satisfactorily, by the same standards applied to other students.
This experience by no means supports the quota approach involved in the Bakke case. It does justify a measure of sympathetic selectivity in the admissions process, depending upon the number of minority candidates who come close to the pseudo-scientific norms for the class, embodied in test scores and college grades supplemented by interviews and letters from former teachers and others who know the candidates well.
In theory and in practice, a quota system or other numerical target leads to admitting unqualified candidates for the sake of fulfilling the quota or target. This is cruel to the student admitted, who feels inadequate in comparison with his abler classmates. Such students often drop out, with a sense of traumatic failure and defeat. It is damaging to human relations within the institution. And it represents a departure from the constitutional norm of equality of opportunity that is wrong in itself, and can have damaging consequences for the future.
EUGENE V. ROSTOW
Yale University Law School

The Real Issue: Early Education

Many have persuaded themselves that if the Supreme Court upholds Allan Bakke’s claim to admission, no matter how narrow or how technical the grounds for its decision, all will be lost in the struggle for fair and equitable treatment of nonwhites in America. This despite the fact that the admissions policies and procedures in effect at UC-Davis Medical School are very far from representative of those at selective professional schools generally, and may well be more vulnerable to constitutional challenge than most.
For many others, as Bundy points out, “a hypothetical future hazard” of quotas-run-rampant dominates every other aspect of the case, including the fact that (in his words) “there is no racially neutral process of choice that will produce more than a handful of minority students in our competitive colleges and professional schools.”
On one point, however, I believe Bundy is too sanguine, and overlooks what may be the most intractable problem, so far, in affirmative action. “There is indeed,” he writes, “a growing pool of applicants who are black or brown and bright by any test.” I know of no evidence that we are getting from the high schools “a growing pool” of well-prepared black and brown students—or white, either, but the deprivations of the minorities being the more serious to begin with, the failure of the schools in respect to them is the more devastating. Bakke rivets attention at the wrong end of the problem; doing something effective about the primary and secondary education of the disadvantaged is the most urgent matter on the affirmative action agenda.
RICHARD W. LYMAN
President
Stanford University

While McGeorge Bundy’s argument is thorough, measured, and persuasive, in perverse moments I nonetheless hope that Mr. Bakke wins. A decision for the Regents or a decision which leaves the key issues ambiguous would let us continue to obscure and ignore the central issue raised by this Bakke hullabaloo for public policy (if not for constitutional law).
The issue is clearly put by Bundy: “. . . the gaps in social, economic, educational, and cultural advantage between racial minorities and the white majority are still so wide that there is no racially neutral process of choice that will produce more than a handful of minority students in our competitive colleges and professional schools.”
Minorities presently can’t compete on their merits for places in graduate schools. Therefore, the Bundy argument goes, one has to give them limited preference for admission, correcting for past discrimination.
Why can’t they compete? For many reasons, the principal one being inferior education in the schools below the university. Only if Bakke wins is the small army of elite university liberals, now so concerned over this issue of disadvantagement, likely to look once again at the sorry facts which Michael Harrington and Lyndon Johnson so tellingly brought to light in the midsixties: poor children are miserably served in this society, and the proportion of poor among minority groups is high. Until the education of children is improved, the painful paradoxes of the Bakke case (for example, the facts that one has to focus on race to eliminate racism and that one has to ignore some sound predictors of academic and professional success in order to admit to graduate school the ultimately most effective group of professionals) will persist. Our country cannot long endure such paradoxes.
A victory for Bakke would be a setback for “affirmative action" in higher education, but it might concurrently remind all of us that the issues of fairness require far more fundamental steps than the majority of us have yet had the courage to take.
THEODORE R. SIZER
Headmaster
Phillips Academy

Goals vs. Quotas

Bundy underscores two points often overlooked in the plausible but simplistic arguments advanced by those who support Bakke’s position.
The first is the distinction between goals and quotas. Goals are targets we strive to attain or even exceed by actively seeking qualified members of minority groups—including women as well as blacks—when hiring new employees. A quota would mean that we would set aside a number of positions exclusively for minorities, and either fill these with less-than-qualified applicants or leave them unfilled until a qualified member of a minority turned up. This would be not only impractical but unfair—and injurious to the morale of other employees. So the distinction between quotas and goals is a real and significant one.
The second point in the article which certainly needed emphasizing is the importance of weighing factors other than test scores in determining the qualifications of applicants. A black today who achieves a score of, say, 550 is likely to be a more promising student (or employee) than a white who scores 600, if only because of the handicaps imposed by past racial discrimination which he or she had to overcome—whether by harder work, perseverance, or self-discipline. We know by now that test scores, like IQ’s, do not tell us everything about a person’s abilities or potential—and practically nothing about his or her character. Consequently, as Bundy suggests, race must be taken into consideration, considering the severe handicaps—both social and psychological—which skin color imposed until very recently on black Americans.
One last observation: I wish that Bundy, in response to those who fear that unqualified blacks would get preferential treatment at the expense of whites, had stressed even more strongly that taking race into account would be a factor only in making a judgment about an otherwise qualified applicant—not in qualifying one who was, say, academically deficient.
WILLIAM ATTWOOD
President and Publisher
News day

The ABA’s amicus curiae brief filed in Bakke advances the proposition that race may be considered, along with other factors, in determining which applicants to accept in a professional school when the object is not invidious discrimination, but is rather to afford professional education to members of minority groups.
The ABA does not endorse quota systems in the admission of minorities to professional schools. However, the ABA supports remedial admissions programs which establish goals for a number of qualified disadvantaged minority applicants. As Mr. Bundy points out, there is a meaningful distinction between goals and quotas.
The point I would like to emphasize, not stressed in the Bundy article, is that special admissions programs will eventually lead to a diversity of ethnic and racial backgrounds in the professions. This will be of positive value to both the professions and society.
WILLIAM B. SPANN, JR.
President
American Bar Association

Remand the Case

I do not know what nonacademic factors correlate with the responsible practice of medicine, but they may exist and therefore could be systematically accounted for in the admissions process. I am certain that race is not a factor correlated with the responsible practice of medicine, law, or management. Having finally gained understanding and acceptance of this important principle, we should not sacrifice it without giving faculties an opportunity to resolve the problem in a manner consistent with the First and Fourteenth amendments.

I hope the Court remands the case until an adequate record can be formed; if it must act in the absence of such information, then let it be against Mr. Bakke.
LAWRENCE E. FOURAKER
Dean
Graduate School of
Business Administration
Harvard University

The Potency of Racism

McGeorge Bundy’s article is a tightly reasoned and wholly persuasive argument for permitting race to be considered as a factor in the admission of students into medical schools. But he assumes rather than states the major premise behind all affirmative action programs, namely, that racial bias has rested and still rests in the hearts of the white majority.
Does anyone really believe that bias in white attitudes toward the black has been eliminated? If not, can public policies now leave to the white majority the assurance of justice?
Doubts on this score underlie the whole business of goals and quotas, and the difference between the two is directly dependent on the optimism or pessimism for white compassion. Optimism suggests goals, pessimism suggests quotas, while affirmative action stems from concern.
The dangers of quotas are real, the administration of goals is complex, but the bias of whites is at the heart of the matter. When bias is effectively eliminated, goals and quotas will be irrelevant. Until they are substantially reduced, goals and quotas will be the dangerous and awkward price we will pay for our own white social cancer.
JAMES A. PERKINS
Chairman
International Council for
Educational Development

What Mr. Bundy was too decent to say is that the public behavior of the various forces most immediately involved with this Supreme Court case has been less than honorable. Easy charges and cross-charges of racism and philistinism can only obscure an exceedingly complex question of constitutionality and human decency. To take to the streets with verbal battering rams will not give us justice in this country. Mr. Bundy’s sense of vision will.
GEORGE W. BONHAM
Editor-in-Chief
Change

The “cruel irony” of a Supreme Court decision favorable to Mr. Bakke would be that more than a century after the abolition of slavery, the nation’s Constitution does not unequivocally sanction equal opportunity for blacks; and, if the polls are right, a majority of Americans think that is just fine.
THOMAS WINSHIP
Editor
The Boston Globe

Bundy’s article makes most of the points I would have made myself. But it makes too much of the difference between qualified and highly qualified students. My impression is that test scores and grades do correlate with grades in law school, for example, but they do not tell us who will be the more successful lawyer in conventional terms of money and power. Students who have high lest scores make Law Review and obtain better first jobs, but in part they obtain better first jobs because they had high test scores and made Law Review. This doesn’t mean necessarily that over a career they will make more money, serve the public better, or have more power than these non-Law Review, non-high-test-score fellows.
The discussion about everyone claiming to be a minority confuses the issue. The reason for affirmative action is a legal denial of rights in the first place. The disadvantaged position of blacks stems from their having been denied legal rights during the years of slavery. I know of no other minority in this country that by law and Constitution was deliberately put in a position where it could not have access to equal opportunity. Many whites may be disadvantaged, but the Constitution did not make them so.
MARY F. BERRY
Assistant Secretary for Education
Department of Elealth, Education
and Welfare

Amen

I can’t think of a serious writer or thinker in America today who would not say, after having read McGeorge Bundy’s article on Bakke, “I wish I’d written that.” The wealth of historical research that has gone into it; the careful delineation of all the issues; the abundant evidence of a first-rate mind probing its way through intense differentiations—all these qualities make his article as compelling as it is valuable.
NORMAN COUSINS
Editor
Saturday Review

The quality of Mr. Bundy’s essay is compatible with the immense scale of the subject. Few pieces in the abundant outpouring of comment on the Bakke case deal so lucidly and evenhandedly with the issue. Our society should harken to his wise counsel.
S. P. MARLAND, JR.
President
College Entrance Examination Board

This is the most powerful and persuasive argument that I have yet seen for a denial of the Bakke claim for reverse discrimination. Above all, it makes plain how slender is the hold of the Supreme Court on an issue which so transcends the question of mere constitutionality or lack of it.
MARQUIS W. CHILDS
Washington, D. C.