HOUSE_OVERSIGHT_017383.jpg

4.2.12
WC: 191694

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.

...

Moreover, if petitioner were to conclude that the medical profession as presently composed fails to serve the disadvantaged elements in society, then it could also consider whether applicants for admission, irrespective of race or ethnicity, manifest a genuine commitment to serve those groups currently lacking adequate service. Indeed, 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.

All of these procedures would result in greater educational opportunities for members of our society's historically deprived minorities, as well as other applicants who are economically and culturally deprived; none of them would offend the Constitution. But what the school may not do, we submit, is to classify applicants for admission on the basis of race or ethnicity and so structure its selection process as to admit an essentially predetermined proportion of members of certain groups.

The Supreme Court’s decision in Bakke accepted our argument against the sort of racial quotas employed by the medical school at issue, 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 Medical School did not pass constitutional muster, while the type used by Harvard College does. Justice Powell, whose opinion contained the judgment of the Court, expressly singled out Harvard College for approval. He quoted extensively from the description of the Harvard program contained in the amicus curiae brief submitted by Harvard, Columbia, Stanford and Pennsylvania universities. Powell apparently found it easier to point to an existing system than to define the factors that would satisfy the constitutional and statutory standard (This reminded me of Justice Steward’s “I know it when I see it” quip about hard core pornography.)

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

296

HOUSE_OVERSIGHT_017383