Bakke and the Divided Society: Marshall’s Dissent, Powell’s Diversion, and Why the Court Chose “Diversity” Over Remedy
In Regents of the University of California v. Bakke (1978), the Supreme Court confronted a medical school that reserved 16 of 100 seats for minority applicants. Allan Bakke, a white applicant with stronger academic credentials than many admitted under the special program, sued. The result was a fractured decision: the rigid quota was struck down, but race could still be considered as one factor among many.
The case forced the justices to confront a basic question about American society: is it still divided along racial (and class) lines in ways that justify race-conscious remedies? Justice Thurgood Marshall said yes, emphatically. Justice Lewis Powell, whose solo opinion became the controlling one for decades, declined to say so—and redirected the entire justification toward the “educational benefits that flow from diversity.”
Marshall’s View: A Society Still Divided by Race and Class
Marshall’s separate opinion is one of the most direct statements ever written by a Supreme Court justice about the persistence of racial hierarchy. He argued that centuries of slavery, Jim Crow, and legal subordination had created a society still divided along racial lines, and that the effects were measurable in health, income, education, and professional representation.
He wrote that “the position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.” He cited concrete disparities: shorter life expectancy, higher infant and maternal mortality, family income at 60% of the white median, poverty rates nearly four times higher, unemployment roughly double, and severe underrepresentation in law, medicine, dentistry, and engineering.
Marshall insisted this was not ordinary ethnic disadvantage. “The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot.”
He explicitly linked race and class: “after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.” Discrimination had been practiced against Negroes as a class because of skin color, not merely against discrete individuals. Therefore a class-based remedy (race-conscious admissions) was appropriate. Without such measures to open positions of influence and prestige, “America will forever remain a divided society.”
Marshall believed the Fourteenth Amendment, passed by the same Congress that enacted race-specific relief for freedmen, permitted—and in practical terms required—remedies aimed at the cumulative effects of that history. Color-blindness, in his view, would simply freeze the existing hierarchy in place.
Powell’s Different Path: Diversity, Not Remedy
Powell joined the judgment that the quota was unconstitutional, but he also joined the four more liberal justices in holding that race could be considered. He rejected, however, the university’s arguments based on remedying general societal discrimination, reducing the historic shortage of minority doctors, or improving medical care in underserved communities.
He treated broad “societal discrimination” as too “amorphous”—an injury “ageless in its reach into the past”—to serve as a compelling interest that could justify burdening individual applicants who had not themselves discriminated. Only “identified discrimination” by a specific institution or entity could support a race-conscious remedy. Powell found the educational benefits of a diverse student body to be a constitutionally permissible interest, rooted in a university’s academic freedom and the First Amendment interest in a “robust exchange of ideas.”
Under his approach, race could function as a “plus” factor in individualized consideration (the Harvard model), but not as a set-aside or quota, and not primarily as compensation for historical wrongs. Diversity had to be broad—encompassing geography, experience, and other traits—not solely racial or ethnic.
Powell’s framework deliberately avoided Marshall’s diagnosis of a still-divided society requiring remedial action. By shifting the justification to the benefits that diversity confers on all students (including the educational experience of white students), he made the policy more palatable to a Court and public skeptical of open racial preferences as restitution.
Why the Difference?
Marshall, the first Black justice and a former civil-rights litigator who had argued Brown v. Board of Education, saw the case through the long arc of legalized racial subordination and its unfinished consequences. For him, the data on life expectancy, income, and professional underrepresentation were not background noise; they were evidence that the society remained divided along racial lines in ways the Constitution permitted (and history demanded) the state to address.
Powell, a corporate lawyer and Nixon appointee, approached the problem more narrowly. He was willing to allow limited race consciousness to prevent social disruption and to promote viewpoint diversity on campus, but he was unwilling to endorse open-ended racial remediation for “societal” wrongs. Doing so would have treated race as a proxy for ongoing group disadvantage and would have imposed costs on individuals (like Bakke) who were not personally culpable. Powell’s opinion preserved affirmative action while severing it from the language of compensation, class remedy, and permanent racial division that Marshall used.
The practical result was that, for the next 45 years, universities justified race-conscious admissions almost exclusively in Powell’s diversity terms rather than Marshall’s remedial ones. That choice shaped both the legal doctrine and the public debate until the Court, in 2023, largely ended race-based affirmative action in higher education.
Marshall’s dissent remains the clearest judicial statement that American society in 1978 was still divided along racial lines in measurable, persistent ways, and that failing to address those divisions with race-conscious tools would lock the division in place. Powell’s controlling opinion accepted limited race consciousness but refused to ground it in that diagnosis.