Bakke V. University of California … Appeal: 1978

The School appealed to the U.S. Supreme Court. Its attorneys were Archibald Cox, Paul J. Mishkin, Jack B. Owens and Donald L. Reidhaar, and Bakke's chief attorney was Reynold H. Colvin. The parties argued their case before the Supreme Court on October 12, 1977. Bakke's attorney, Colvin, was making his first Supreme Court appearance, and he faced several experienced attorneys. For example, Cox was a former Harvard Law School professor and had served as Watergate Special Prosecutor. Colvin found himself immersed in an argument with Justice Thurgood Marshall, the only African-American on the court, over whether minorities should be accorded any preference in the school's admissions process:

Marshall: You are arguing about keeping somebody out and the other side is arguing about getting somebody in.

Colvin: That's right.

Marshall: So it depends on which way you look at it doesn't it? …

Colvin: If I may finish …

Marshall: You are talking about your client's rights. Don't these underprivileged people have some rights?

Colvin: They certainly have the right to …

Marshall: To eat cake.

On June 28, 1978, Justice Lewis F. Powell, Jr., announced the decision of the majority in the 5-4 decision. It held that the school's special-admissions policy constituted reverse discrimination and was thus illegal. The court upheld the decision of the California Supreme Court, and affirmed the California court's order that Bakke be admitted to the school. Further, the Court upheld the California court's determination that the school's special-admissions program had to be scrapped. However, the Court held that schools could continue to give preference to minorities, so long as they didn't exclude whites from a specific portion of the entering class, like the school had. The Court cited Harvard University's program as a model for an acceptable admissions policy that gave consideration to racial status without violating the civil rights of whites such as Bakke:

The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program.… When the [Harvard] Committee on Admissions reviews the large middle group of applicants who are admissible and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.

In Harvard college admissions the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year.

In a nutshell, the Court had ruled that while schools could give minority applicants some extra preference and consideration, they couldn't set aside a quota of positions for minority students that excluded whites. Such a program, like that at the Davis Medical School, constituted reverse discrimination. Bakke had won his case and would be admitted as a student. It was the first time that the Supreme Court applied civil rights protection to white students seeking admission to a university.