As a society, we rely on the rule of law as the common vocabulary, the ultimate arbiter by which we decide right and wrong and fight back when injustice occurs. We have defined a few “protected” classes deserving of legal protection from discrimination, and the legal system can provide remedy to individuals fighting recent injustices suffered at the hands of another specific individual or institution. However, Bakke shows that our courts are not equipped to correct past injustices where the true defendant in a case is not an individual or institution but rather a broad segment of society whose combined actions across history created the discriminatory environment that led to the plaintiff being harmed.
The claim that whites bear no responsibility for wrongs suffered by minorities is disproved by the historical record. But unless the legislative system recognizes and codifies the continued culpability that modern members of the “unprotected” classes bear for the discriminatory environment that their predecessors carefully crafted centuries ago, the recourse that protected classes can expect from the courts will always be woefully inadequate.
— Rachel Nyswander Thomas