Document Type


Publication Date



Two of America's most cherished values collided head-on a few months ago, when the U.S. Supreme Court began to come to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society, and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color are taken into account by educators, employers, and other key decision-makers, both public and private. Did the special admissions program at the University of California at Davis violate the equal protection clause of the Fourteenth Amendment to the Federal Constitution? Allan Bakke said it did, and the Supreme Court of California concurred when it sustained Bakke's complaint-at least in the absence of a clearer demonstration that Davis could not integrate its medical school without resorting to racial preferences. Although distinguished legal authorities have said the Constitution is "color-blind," the Constitution itself says no such thing. All that the Fourteenth Amendment guarantees is "the equal protection of the laws." The mandate of equal treatment, however, would seem to presuppose equal status or circumstances. It is not unconstitutional to require the rich to pay higher taxes than the poor, or to impose military obligations on the young and healthy and not on the old or the infirm, or to provide emergency funds for the victims of natural disasters. Whether government-sponsored preferences based on race are constitutionally permissible should also depend, one can reasonably maintain, upon an examination of the similarity or dissimilarity in the contemporary situation of whites and minorities. Arguably, of course, racial distinctions are unique-a particular target of the post-Civil War amendments-and not to be compared with distinctions based on wealth or age or physical condition or acts of God. And indeed the Supreme Court has declared that race is a "suspect" governmental classification. But even racial preferences may be justified if they serve a compelling state interest and are the least drastic means of accomplishing an appropriate end.


This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.