To be fair, Regents v. Bakke (1977) does not rank among the most execrable decisions in the Court's history. It is scarcely as bad as Dred Scott (1856) or Plessy v. Ferguson (1895). One could hardly rank it lower than the second tier from the bottom of very bad cases.
The Court had to decide whether affirmative action by state universities was a violation of the Equal Protection Clause of the 14th Amendment. At question were admissions policies that unambiguously discriminated against Alan Bakke merely because of his racial identity.
The Court might have said that it is permissible to discriminate in favor of minority candidates against White candidates because the purpose of the policy was to remedy past discrimination against minorities. This would lead to the odd conclusion that equal protection protects some persons more than others, something Conservatives resolutely object to. While I am very skeptical about that proposition, there are arguments to be made in favor of it.
Current law protects persons with disabilities against discrimination and indeed requires a wide variety of practices intended to open access to public and private facilities and to create a "barrier-free world". The law does not protect short people, despite obvious difficulties that such people experience and reams of evidence that they suffer discrimination. Being an attitudinally challenged person myself, am I denied equal protection? Probably not. The purpose of the law is not to inhibit one population but to provide needed protection for groups that especially need it. This is a judgment call and it is one that legislatures are better able to make than courts.
On the other hand, the Court could have struck down affirmative action. They did neither. The Court struck down the California policy as a "quota system." This means that it roped off a number of positions for special admissions and all but posted a sign: no White person need apply. Instead, the Court determined that public universities could develop a system that includes race as one of a number of factors and by that means achieve exactly the same outcome as a quota system. Justice Powell:
It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program, and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element -- to be weighed fairly against other elements -- in the selection process… And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith [p319] would be presumed in the absence of a showing to the contrary in the manner permitted by our cases.
Notice the weasel words "facial," "assume" and "professing". The Court does not deny that the system they are advocating "is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis" quota system. In theory, Bakke would be eligible for any position in the UC Davis Medical School's freshman class. In practice, he would be effectively excluded from the same number of slots. In other words, the Court decided that discriminating against White applicants in favor of minority applicants is okay so long as you lie about it.
The Texas system guarantees admission to students who graduate in the top 10 percent of their high schools' senior classes. Some 75 percent of those admitted as freshmen to the school in Austin each year have come from this pool, which has helped UT make great strides in increasing minority enrollment, which hovers between 18 percent and 20 percent.
The school decided that students who filled the remaining slots should reflect the state's growing diversity. UT took into account several factors in addition to grade-point average and SAT scores, including whether an applicant came from a one-parent household or one where more than one language is spoken. Ms. Fisher cites these considerations as constitutionally problematic.
There is nothing wrong with these admissions criteria except that they are clearly designed to discriminate on the basis of race and ethnicity while remaining facially neutral. That's okay as long as you think that it's racial and ethnic discrimination is okay as long as you discriminate in favor of the right people and you aren't too honest about what you are doing.
The Bakke decision mandated a culture of deceit in public university admissions. This is inherently corrupting. If we are going to practice remedial discrimination, we have to admit what we are doing. If we can't bring ourselves to admit that, we need another solution.