A Critical Moral Analysis of Reverse Discrimination in Light of the Natural Law: The Allan Bakke Case

Introduction

Reverse discrimination continues to remain a significant issue in America. In this paper I will present the case of Allan Bakke. First, I will give a factual account of Bakke's effort to gain admission into medical school. Second, I will examine the issue of reverse discrimination in light of the moral virtues. Third, I will discuss the relationship between the “right and the good” as related to Bakke. Fourth, I will apply the principle of subsidiarity to Bakke's case. Fifth, I will examine Bakke's reverse discrimination in regard to the two species of justice.

Bakke's Medical School Application at Davis

The University of California at Davis Medical School opened in 1968 with a freshman class of fifty students. There was no admissions program for disadvantaged or minority students at that time. Candidates with overall undergraduate grade point averages (GPA) under 2.5 on a 4.0 scale were automatically rejected. Those with a GPA at or above 2.5 were invited for an interview by six committee members. Each interviewer rated a given applicant on a scale of one to one hundred based upon the interviewers' summaries, the candidate's overall GPA, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extra-curricular activities, and other biographical data. ¹ These ratings, when added together, formed a benchmark score for each candidate. In 1973, since five committee members rated each candidate, a perfect score was 500; six committee members in 1974 rated each candidate so then a perfect score was 600. Benchmark scores were arranged in a hierarchy, and offers of admission were made on a “rolling” basis. The chairman was responsible for placing names on the waiting list.

The special admissions program operated with a separate committee at the medical school. Students who applied in 1973 were asked if they wished to be considered economically or educationally disadvantaged; those applying in 1974 were asked if they wished to be considered members of a minority group under which the medical school included Blacks, Chicanos, Asians, and American Indians. ² It is important to recognize that no formal definition of “disadvantaged persons” was ever formulated, yet the chairman of the special committee reviewed each application to determine if it reflected economic or educational deprivation. It is critical to note that special candidates did not have to have the 2.5 GPA that was required for regular applicants. The special committee assigned each special applicant a benchmark score. The special committee then presented its recommendations to the general admissions committee. This process continued until the prescribed number of positions was filled. For example, in 1973 and 1974, the total class size was one hundred and the prescribed number of special admissions was sixteen. It is essential to recognize that although disadvantaged, white persons applied to the special admissions program in large numbers, none of them received any offer of admission. The only applicants in 1974 who were considered “disadvantaged” were members of one of the designated minority groups. ³

Allan Bakke was a white male who applied to the general admissions program at the Davis medical school in both 1973 and 1974. In 1973 Bakke had a benchmark score of 468 out of 500 and received an interview. Despite his being described by Dr. Theodore H. West as “a very desirable candidate,” Bakke was rejected. ⁴ Bakke had applied to the general admissions committee late in the year, and no applicants with scores below 470 applying to the same committee were accepted after Bakke. There were four places for special admission for which Bakke was not considered. After his rejection in 1973, Bakke wrote to the associate dean and chairman of the admissions committee claiming that the special admissions program operated as a racial and ethnic quota. Bakke applied again for admission early in 1974. His total benchmark score was 549 out of 600. Bakke was rejected again; furthermore, in neither year did the chair of the admissions committee choose to place Bakke on the waiting list. In both 1973 and 1974, applicants were admitted under the special program with GPAs, MCAT scores, and benchmark scores significantly lower than Bakke's. ⁵

Bakke filed suit, after his second rejection, in the Superior Court of California. He argued that the medical school's special admissions program operated to exclude him from the school on the basis of his race, which violated his rights under the Equal Protection Clause of the Fourteenth Amendment, Article I, Section 601 of Title VI of the Civil Rights Act of 1964. This trial court found that the special admissions program operated as a racial quota; however, it refused to order Bakke's admission. Bakke subsequently appealed to the Supreme Court of California which found that integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests; however, it concluded that the special admissions program was not the least intrusive means of achieving the goals. The court ruled that Bakke had established that the university had discriminated against him on the basis of his race; subsequently, Bakke's admission into the medical school was ordered. The university proceeded to file an appeal before the United States Supreme Court.

It is important to recognize the moral components when the court considered the important legal issue in University of California v. Bakke. For example, there are three serious problems of justice connected with the idea of preference itself ⁶ Can individuals be asked to suffer impermissible burdens in order to enhance the societal standing of particular ethnic groups? Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection. Third, there is a measure of inequity in forcing innocent persons in the respondent's position to bear the burdens of redressing grievances not of their own making. The critical question which must be addressed both legally and morally is: do such classifications serve to exacerbate racial and ethnic antagonisms rather than alleviate them?

The special admissions program of the university claimed to be serving four purposes ⁷ : 1.

To reduce the historic deficit of traditionally disfavored minorities in medical and the medical profession;

But what if a person such as Bakke is legally innocent in terms of never having personally discriminated against persons in minority groups? A majority of the high court found that the respondent bears no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. ⁸ While it is true that the interest of diversity is compelling in the context of a university's admission program, the critical, legal question raised was whether the program's racial classification is necessary to promote this interest. While the high court recognized that race or ethnic background could be one of a number of factors in the application process, it found the special admissions program to be operating solely on ethnic diversity; such a program hinders rather than furthers attainment of genuine diversity. Other qualities that could be considered in promoting ethnic diversity include unique work or service experience, maturity, compassion, a history of overcoming disadvantage, and ability and desire to communicate with the poor.

A majority of the United States Supreme Court found that the Davis special admission program involved the use of an explicit racial classification. Those who were not defined as a minority (i.e., Negro, Asian, or Chicano) are given no consideration despite having superior qualifications, quantitative and extracurricular, including their own potential to educational diversity ⁹ This results in the disregard of individual rights (of Bakke) as guaranteed by the Fourteenth Amendment. While it was true that until 1973 the practice of medicine in the United States was largely the prerogative of whites, it must be asked (legally and morally) what methodologies truly promote ethnic diversity while respecting the good of the individual and the common good of society? The exclusion of whites from participation in the special admissions program operated to reduce the number of whites to be admitted in the regular admissions program in order to permit the admission of certain minorities who were under-represented and significantly less qualified.

It is important to understand exactly what is meant by the claim that reverse discrimination is one form of discrimination. Discrimination implies a difference in treatment that makes for more favorable treatment for one person or group than another. Those receiving the less favorable treatment are said to have been discriminated against. Unfavorable treatment that is not justified could be reflected by an employer's discrimination against black persons as opposed to his “discrimination” against applicants who are poorly qualified. To discriminate against a person strictly based upon his race, color, sex, or religion is gravely immoral. ¹⁰ Reverse discrimination implies a difference in treatment which reverses a pattern of earlier discrimination. The philosopher and attorney R. Kent Greenwalt argues that reverse discrimination typically means giving more favorable treatment for admission to academic institutions or in arguing a job to persons who are members of groups that have been discriminated against in the past. ¹¹ It is not reverse discrimination to publicize the availability of jobs more broadly than had previously been done in order to encourage a large number of minority applicants to apply for jobs or admissions to academic institutions. Greenwalt notes that this may constitute affirmative action but does not represent reverse discrimination. Reverse discrimination as one form of discrimination fails to recognize that the common good which is intimately bound up with human nature cannot fully and completely exist unless the individual human person is taken into account at all times.

Moral Virtues and Reverse Discrimination

St. Thomas argues in the prima secundae of the Summa theologiae that the first principle of practical reason is that good is to be done and evil avoided. ¹² Robert J. Araujo, S.J., a professor of law, suggests that the first and foremost principle of legal prescriptions should be that humans are to do good and avoid evil. ¹³ Law provides a vehicle by which human reason can discern good and evil. The teleological dimension of law reflects that the telos is identified with justice—the object of which directs man in his relation with others. Central to this is a critical issue to be addressed: how do people who are members of a wide variety of communities know what will constitute the good in relations with their neighbors. How are we to understand the individual good of Allan Bakke as related to the common good of society? The attempt to address this question must be grounded in the relationship among the moral virtues—particularly prudence and justice. As Araujo argues, it matters not only what a man does but also how he does it. ¹⁴ An intellectual virtue is needed in the reason to perfect the reason and make it suitably affected toward things ordained to the end: this is the virtue of prudence. Prudence is, therefore, a virtue necessary to lead a good life. ¹⁵

What is the moral relationship of justice to prudence, especially regarding Bakke and reverse discrimination? St. Thomas argues that no moral virtue can be without prudence; likewise, one cannot have prudence unless one has the moral virtues. ¹⁶ It is clear that, in St. Thomas's judgment, a “perfect” understanding of moral virtue means that one simultaneously possesses justice, prudence, temperance, and fortitude, or none of them. When a question arises of whether a human good is geared toward the individual in isolation or the individual in relationship to other persons, the moral virtue of prudence takes on particular significance. This is so because prudence is right reason applied to action. ¹⁷ Araujo correctly argues that the individual good and the common good are intrinsically related. This is necessarily the case because as Araujo argues, the concern for the common good can only become manifest if the sum total of the individual goods are viewed as being equal to one another. ¹⁸

The relationship between prudence and justice takes on particular significance regarding the reverse discrimination of Allan Bakke. The question of the good to be pursued and how it is to be achieved is of paramount importance. Araujo argues that laws impact individuals who are struggling with their relationship with one another. This reflects St. Thomas's position that there is a connection between justice for the one and justice for all in that it is proper to justice, as compared with the other virtues, to direct man in his relation with others. ¹⁹ We would likely all recognize that ethnic diversity is a good to be achieved in that physicians serve a heterogeneous population. The key moral question becomes, however, what are the appropriate means to be employed to achieve this specific end. To employ the “wrong” means to achieve a good end will reflect both imprudence and injustice. The majority of the high court in University of California v. Bakke held that the racial classification program was not necessary to achieve ethnic diversity which is only one element in an array of factors in attaining the good of a heterogeneous student body. Bakke had outstanding benchmark scores when he was rejected in 1973 and 1974 in favor of minorities with inferior ones. The attempt to generate ethnic diversity should have employed other means than a racial classification system as the court noted. The imprudence of the university therefore, resulted in a perpetration of injustice upon Allan Bakke in that a candidate with superior qualifications was rejected twice due to his race and in favor of minority candidates with clearly inferior benchmark scores.

The “Right” and the “Good”

It is important in Bakke's case to properly examine the relationship between the “right” and the “good.” Araujo argues that traditionally, the right and the good have been viewed as the distinction between deontological and teleological ethical and moral systems. ²⁰ One could say that the right is concerned with principles or rules whereas the good is concerned with goals. The proper understanding of justice reflects that there can be overlap and complementarity as well as distinctions between the right and good. Practical reason involves seeking a particular good. Rational choice can lead an individual to elect a particular good. Araujo notes that citizens who exercise rational choice in the selection of goods do so in accordance with political virtues: civility, tolerance, reasonableness, fairness, etc. Bakke was attempting to pursue two basic goods as described by John Finnis: knowledge and practical reasonableness. Bakke's effort to pursue the good of knowledge by attending medical school also reflects that knowledge is desirable for its own sake and not merely instrumentally. In choosing to study pre-medicine, Bakke pursued the basic good of practical reasonableness where his actions and lifestyle shaped his character by directing his use of freedom, reason, integrity, and authenticity. ²¹ To deny Bakke the opportunity to fully pursue the basic goods of knowledge and practical reasonableness due to his race alone when his benchmark scores were superior is an egregious injustice.

Robert Araujo, S.J., raises a critical issue: what role does morality play in the search for justice? He argues that “true justice” focuses on moral reasoning—on the “good” rather than simply the “right.” ²² While natural-law theorists such as Ronald Dworkin and Neil MacCormick have written on the relationship between law and morality, John Finnis offers a correct and unique insight to this dilemma. Finnis argues that moral investigation is a component of the legal and judicial processes. It is the backbone of legal reasoning, and it helps shape the enterprise. ²³ The search for objective truth is absolutely critical because what is at stake is the effort to ascertain the most basic rights. For Allan Bakke this was his inherent natural right to pursue two basic human goods—knowledge and practical reasonableness—without discrimination due to his race. Justice and human flourishing must ultimately incorporate a principle of “fairness” based upon a synthesis of legal and moral reasoning—not a separation. Reason deprived of moral consideration will never, in itself, determine what is just. ²⁴ The separation of law and morals is grounded in utilitarianism. Practical reasoning necessarily involves both law and morals.

The Principle of Subsidiarity

The principle of subsidiarity is a principle of justice with critical relevance to the discrimination of Bakke. Drawing from the encyclical of Pope Pius XI Quadragesimo anno, the Church teaches that a higher order should not interfere in the internal life of a community of lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good. ²⁵ This means that individual persons such as Bakke must be empowered to act efficaciously in their own lives. The natural law's inherent principle of subsidiarity emphasizes the right of an individual to purse basic human goods that will also directly serve the common good. Human good requires not only that one receive and experience benefits or desirable states; it also requires that one should act with integrity and authenticity ²⁶ It is most desirable that a person such as Bakke obtain the goods of pursuit (knowledge and practical reasonableness) through his own actions. Bakke's superior benchmark scores in 1973 and 1974 demonstrated the integrity and authenticity described by Finnis in pursuit of human goods. Pope John Paul II, in Centesimus annus, also recognized in subsidiarity the relationship of the individual good to the common good: societies such as the family and the State assist in developing the qualities of the person and help to guarantee his rights. ²⁷ Indeed, the most complex common good (subject to the principle of subsidiarity) excludes no aspect of individual well-being and is potentially affected by every aspect of every life-plan. ²⁸

Peter Widulski argues that respect is particularly due where a subsidiary body such as the family or university takes the initiative and assumes responsibility for an undertaking pursuant to its mission. ²⁹ Indeed, John Paul II has stated in Familiaris consortio that education is a mission first entrusted to the parents but that parents share their educational mission with other individuals or institutions such as the Church and the State. Despite the fact that the family does not have exclusive responsibility for education, John Paul II cautions that the mission of education must always be carried out in accordance with a proper application of the principle of subsidiarity. It is critical to recognize that subsidiarity applies always with a view to the common good. John Finnis argues that intelligence and dedication to the common good may be mixed with selfishness and folly. It must, therefore, be kept in mind that the concern of particular persons and groups for individual goods, for particular aspects of the over-all common good, will enhance the over-all common good only if the resulting particular options are subject to some degree of coordination. ³⁰ Individuals and particular groups such as a university should have a certain autonomy—a certain prior concern and responsibility for their own particular good, their own particular interests or specialty. The medical school at Davis legitimately exercises its autonomy in the attempt to seek ethnic diversity in the process of admissions. Bakke legitimately exercises his autonomy in the pursuit of two basic goods leading to his application of medical school. Allan Bakke, however, was innocent in that he had never personally engaged in the discrimination of others; however, he was forced to bear that burden when the university twice denied his admission solely on the grounds that he was not a minority. The individual good that unjustly was denied to Bakke would also negatively impact the common good. How would the common good composed of numerous individuals be medically served by denying admission to an applicant with superior benchmark scores simply because he was not a minority as the university defined it? The common good is related to the individual good in that the common good will be deprived of adequately prepared physicians if an individual with superior qualifications is denied a rightful admission into medical school in order that he become a physician.

The Two Species of Justice

It is critical to understand the reverse discrimination Bakke suffered as related to both commutative and distributive justice. St. Thomas defines the order of one private individual to another as commutative justice. This reflects that there is order of one part to another. Distributive justice involves the order of the whole to its parts. This corresponds to the order of that which belongs to the community in relation to each single person. ³¹ These are the two species of justice according to St Thomas. In Bakke's case, commutative justice, which regulates exchanges between persons and between institutions in accordance with a strict respect for their rights, was violated. ³² The medical school at Davis represented the institution that denied Bakke's admission solely on the basis that his race was not a minority of interest. Distributive justice was violated when the California Supreme Court refused to recognize what was due Bakke because of his superior benchmark scores. This was owed to Bakke based upon the contributions to society he showed the potential to make and the need of the community for adequately trained physicians. The California Supreme Court was reversed by the United States Supreme Court ordering Bakke's admission into medical school. The high court recognized that while ethnic diversity is a desirable goal, a racial quota is not necessary to achieve that goal. In fact, such a quota system inhibits the very ethnic diversity which was sought at the expense of Allan Bakke who had not himself committed an act of racism. ³³

Conclusion

In this paper I have presented the facts of Bakke's efforts in 1973 and 1974 to be admitted to the Medical School at the University of California–Davis. I have argued that reverse discrimination is a form of discrimination which is intrinsically immoral. While the goal of seeking ethnic diversity is desirable, Bakke suffered an injustice due to an imprudent means which employed a racial classification quota. In this paper I discussed the distinction between the “right” and the “good” as it relates to the individual good and the common good. I have argued that justice demands a proper understanding and application of the principle of subsidiarity in the pursuit of basic human goods. Finally, I have discussed the two species of justice as related to the individual good and the common good.