From Bakke to Grutter and Beyond: Asian Americans and Diversity in America

I. INTRODUCTION At a recent speech to a group of Chicago lawyers delivered at a luncheon held in his honor, United States Supreme Court justice John Paul Stevens spoke about his thoughts on the recent Court decisions concerning the University of Michigan law school's race-conscious admissions policies.1 In a rare moment, justice Stevens spoke about the internal deliberations that took place during a conference prior to the scheduled oral arguments in the most recent case, Grutier v. Bollinger.2 In particular, justice Stevens revealed that he had delivered a lengthy defense of the law school's admission program during that meeting. He stated that he was influenced by the briefs filed by former military officers, including retired Army General H. Norman Schwarzkopf and retired Army General Wesley K. Clark, who argued that an affirmative action policy was necessary to guarantee a diverse military, which in turn would produce minority officers.3 Stevens shared my viewpoint that the ultimate decision concerning affirmative action should not be an issue for jurists alone to decide. Instead, he thought that great deference should be given to the country's corporate, educational, and military leaders. Affirmative action in the military, where minorities are actively hired, trained, and retained, was just one example which showed that affirmative action works in the public's best interest. So it was no surprise that justice Stevens felt there was no conflict between his position in the 1978 Regents of the University of California v. Bakke case,4 wherein he voted to strike down the University of California medical school's special admissions program, and his subsequent vote upholding the admissions program in Grutter. justice Stevens urged the other justices to treat Bakke as controlling authority, given the fact that many major institutions have already relied heavily on its holding for the past quarter-century.5 In Bakke, the Court applied the Equal Protection Clause to affirmative action for the first time.6 In Bakke, the University of California at Davis rejected the medical school application of Allan Bakke, a white male. Bakke filed suit against the university, claiming that the school's admissions scheme violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act. The Court affirmed the unconstitutionality of the "special admissions" program, but reversed the lower court's prohibition of using race as an admission criterion.7 Four of the justices, led by justices William Brennan and Thurgood Marshall, found affirmative action programs to be constitutional.8 The other four justices voted with justice Lewis F. Powell, Jr. to strike down the affirmative action plan as unconstitutional.9 justice Powell concluded in his opinion that the University of California at Davis medical school's special admissions program unconstitutionally denied Bakke equal protection.10 Despite the Court's intentions, the law after the Bakke decision remained unclear because there were six separate opinions with no clear victory for either Bakke or the University of California. The murkiness of the decision itself remains even today, over a quarter of century after it was decided. Despite the deep division among the justices in Bakke, justice Powell's opinion continues to be the law that governs affirmative action. In his speech justice Stevens echoed justice Sandra Day O'Connor's statement in Grutter that affirmative action may be a temporary remedy that would no longer be needed twenty-five years from now11 by suggesting that although affirmative action for African Americans is still necessary today, the situation will "work itself out" in the years to come. he made this bold conclusion after comparing current affirmative action for African Americans to past affirmative action for Asian Americans. justice Stevens opined that Asian Americans no longer need to be considered as beneficiaries of any racial preferences. …