Justice Stevens’s Best Opinion

POLITICS & POLICY

De mortuis nil nisi bonum. Do not speak ill of the dead.

While that proposition surely must expire at some point, it strikes me as good advice to follow in the immediate aftermath of someone’s death. So with that in mind, I’d like to praise Justice John Paul Stevens’s opinion in 1978 in Regents of the University of California v. Bakke.

In that opinion, Justice Stevens concluded that Title VI of the Civil Rights Act of 1964 “stands as a broad prohibition against the exclusion of any individual from a federally funded program ‘on the ground of race.’” (Emphasis in original.) Thus, just as Title VI protected racial minorities, so also it protected Alan Bakke—the white applicant rejected by UC Davis’s medical school—from what Stevens called “‘reverse discrimination’ or ‘affirmative action’ programs.”

As Stevens put it succinctly:

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The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below [in favor of Bakke].

Chief Justice Burger, Justice Rehnquist, and Justice Stewart joined Stevens’s opinion. But Stevens was on the losing end on the Title VI question, as the five other justices ruled that Title VI does not bar all racial discrimination in federally funded programs. (Justice Powell, in his controlling solo opinion, agreed with Stevens that UC Davis had acted unlawfully, but he reached that conclusion based on the Equal Protection Clause.)

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