130 PART TWO INDIVIDUAL RIGHTS CHAPTER 6*ECONOMIC RIGHTS AND OPPORTUNITIES 131 American children.Cities in the late nineteenth century neglected the education because they can end up favoring women and minorities over white males,an of many immigrant children,who were thereby placed at a permanent outcome that is called "reverse discrimination."Although there is no evidence &k disadvantage.And of course,souther schools for black children in the that reverse discrimination is rampant (and plenty of evidence that white males segregationist era were designed to subjugate them,not to educate them. still have an edge in educational and marketplace opportunities),the idea that Today,whether an American child gets a good education depends to a minorities and women may receive preferential treatment in some instances has signincant extent on the wealth of the community in which he or she resides.In resulted in attacks on affirmative action. 1973 the Supreme Court ruled that education of high quality is not a right to which all children are entitled.This ruling came in response to a suit initiated on behalf of students in a poor and largely Hispanic school district in San Antonio, The Bakke Case:Clouding the Issue which had an annual budget of$356 per pupil.By comparison,a school district Affirmative action was first tested before the Supreme Court in University of in a nearby wealthy suburb spent $594 per pupil per year.In deciding that Texas Californin Regents v.Bakke (1978).Alan Bakke,a white man,had twice been was not obliged to equalize per-pupil spending in its schools,the Supreme denied admission to the medical school of the University of California at Davis, Court concluded that education "is not among the rights afforded explicit even though his admission test scores were higher than those of several protection under [the]Constitution.Nor...[is it]implicitly so protected."A minority-group students who had been accepted.Bakke sued,claiming that the state is obliged only to provide "an 'adequate'edueation for alt chilttren,"not medical school had admitted less qualified minority students through an 'equal quality of education affirmative action program that set aside sixteen places for such students.In a Nevertheless,the United States through its public schools has educated a 5-4 decision with six separate opinions,the Court ruled in Bakke's favor and broad segment of the population.Arguably,no country in the world has made ordered the university to admit him an equivalent effort to give children,whatever their parents'backgrounds,an Although the Bakke case was a setback for advocates of affirmative action,the equal opportunity in life through education.The United States ranks first in the Supreme Court did not invalidate the policy.The Court said that race could be world in per capita spending on education and first in the proportion of adults one consideration in admission policy,along with such other considerations as receiving a college education.In the United States,about 40 percent of young test scores and extracurricular activities,as long as no rigid racial quotas were people eventually go on to college,compared with 10 percent in Britain,for imposed.Writing for four justices on the majority side,Justice William Brennan example. concluded that race could-and should-be taken into account in opportunity decisions:"We cannot and...need not under our Constitution...let color AFFIRMATIVE ACTION:PROVIDING GENUINE OPPORTUNITY blindness become myopia which masks the reality that many 'created equal have been treated within their lifetimes as inferior both by law and by their Opportunity in America has never been as equal in practice as it is in theory fellow citizens." When women and members of minority groups seek a job or a promotion,they are more likely than white males to find that an employer wanis someone else. Few employers today are likely to say outright that they prefer a white male to a Subsequent Cases:Clarifying the Issue woman or a black person,but the statistics speak for themselves.White males Bakke was followed by two rulings in favor of affirmative action programs,one of get more jobs,better pay,and more promotions than do members of other which-Fullilove v.Kiufznick (1980)-upheld a quota system that required 10 groups (see Chapter 7). percent of federal public works funds to be awarded to minority-owned firms.2 Affirmative action programs are a response to this chronic discrimination in These initial decisions created uncertainty about the precise criteria for deter the marketplace.Affirmative action is a deliberate effort to provide full and equal opportunities in employment,education,and other situations for women, mining the legality of a particular affirmative action program.Not until halfway through the 1980s did the Supreme Court begin to define the permissible minorities,and individuals belonging to other traditionally disadvantaged remedies more exactly.The rules were spelled out in a series of decisions that groups.Affirmative action requires corporations,universities,and other organi- are described in Chapter 7.Here it is necessary only to summarize the Court's zations to establish programs designed to ensure that all applicants are treated position. fairly.Affirmative action also places the burden of proof on the providers of According to the Supreme Court,affirmative action remedies that give opportunities;to some extent,they must be able to demonstrate that any preference to minorities and women are lawful when they are narrowly tailored disproportionate granting of opportunities to white males is not the result of to a particular situation and when they are designed to correct clear-cut cases of discriminatory practices. past discrimination.In other words,when an organization is guilty of unlawful In the abstract,affirmative action is not a controversial idea.Most Americans and substantial discrimination,it can be compelled to rectify the situation say that minorities and women deserve a truly equal chance at jobs and other opportunities.Yet affirmative action programs are controversial in practice through a program that benefits individuals who belong to groups victimized SsN Antomio Independent School District v.Rodrigwez,411 U.S.1 (1973). See Allan P.Sindler,Bakke,DeFunis,and Mimority Admissions:The Ques!for Equal Opportunity New Yodc Lo ,1978 sidney Verba and Gary Orren,Equslity i America(Cambridge,Mass.:Harvard Unhversity Press. 19851ch1, s.8,438U5.265978) ers v.Weber,(19);Fullilowe v.,448 U5.448(1980)