Bakke v. Regents Brief of the American Bar Association Amicus Curiae

    JAMES M. NABWT, IH 
ASSOCIATE-COUNSEL

In tlj*
Supreme Court of tfje Umteb States

O ctober T er m , 1976

No. 76-811

REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Petitioners,

ALLAN BAEEE,
Respondent

BRIEF OF THE AMERICAN BAR ASSOCIATION, 
AMICUS CURIAE

JUSTIN A. STANLEY, President 
ROBERT L. STERN 
1155 E. 60th Street 
Chicago, Illinois 60637
LAWRENCE NEWMAN 
LYNN S. FRUCHTER 
RENA C . SEPLOWITZ 
425 Park Avenue 
New York, New York 10022

Attorneys for A micus Curiae, 
A merican Bar Association

S O R G / C H i C A G O ,  U .S .A .



1

INDEX

PAGE

Interest of Amicus .............................................................  1

Consent of the P a r tie s .......................................................  3

Opinion Below ...............    3

Jurisdiction ......................................      3

Questions P resen ted ...........................................................  3

Argument ............................................................................  4

I. The Consideration Of Pace For The Purpose Of 
Promoting The Professional Education Of Mem­
bers Of Minority Groups Which Are Under­
represented In Professional Schools And Practice 
Is Constitutionally Perm issible..............................  4

A. Consideration may be given to race along with
other factors in determining the applicants to 
be accepted in a professional school when the 
object is not invidious discrimination but is to 
make professional education available to mem­
bers of minority g roups...................................... 4

B. An educational program which encourages the
admission of minority students to professional 
schools serves legitimate and substantial state 
interests ............................................................... 9

C. Programs to encourage and promote the ad­
mission of minority students to professional 
schools satisfy any of the tests which are 
invoked in construing the Equal Protection 
Clause ..................................................................  45

Conclusion ..........................................................................  ^1



11

T able op A u t h o e it ie s

Cases pAGE

Alevy v. Downstate Medical Center, 39 N.Y.2d 326,
384 N.Y.S.2d 82 (1976) .................................................. 20

Associated General Contractors of Massachusetts, Inc. 
v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, denied, 
416U.S. 957 (1974) ...............................................   7,8,20

Brown v. Board of Education, 347 U.S. 483 (1954) 5, 6,10,
14, 20

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) ....... 7, 8

Dandridge v. Williams, 397 U.S. 471 (1970) ................... 15

DeFunis v. Odegaard, 416 U.S. 312 (1974) ........    12

Frontiero v. Richardson, 411 U.S. 677 (1973) ............ . 17

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) .......................................................  20

James v. Strange, 407 U.S. 128 (1972) ............................  17

Katzenhach v. Morgan, 384 U.S. 641 (1966) ..................  4

Lau v. Nichols, 414 U.S. 563 (1974) ........................ ...... . 4

Loving v. Virginia, 388 U.S. 1 (1967) ..............................7,15

Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974) ........... 7, 8

Morton v. Mancari, 417 U.S. 535 (1974) ........................  4

North Carolina State Board of Education v. Swann, 402 
U.S. 43 (1971) ................................................................. 6,8

Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 1967) ..... 6

Patterson v. Newspaper & Mail Deliverers’ Union of 
New York & Vicinity, 514 F.2d 767 (2d Cir. 1975) .....  8

Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970) ...............  7,8

Reed v. Reed, 404 U.S. 71 (1971) ...................................... 17



Ill
PAGE

San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (1973) ..................................................... 8,15,17

Serna v. Portales Municipal Schools, 351 F.Supp. 1279 
(D.N.M. 1972), a ff’d, 499 F.2d 1147 (10th Cir. 1974) 4

Shapiro v. Thompson, 394 U.S. 618 (1969) ....................  15

Southern Illinois Builders Association v. Ogilvie, 471 
F.2d 680 (7th Cir. 1972) .................................................  8

Strauder v. West Virginia, 100 U.S. 303 (1879) ............  7

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ..................................................... 5,16, 20

Sweatt v. Painter, 339 U.S. 629 (1950) .......................... 7,12

Trimble v. Gordon, 45 U.S.L.W. 4395 (U.S. April 26,

1977) ................................................................................  17

United Jewish Organizations of Williamsburgh, Inc. v. 
Carey, 45 U.S.L.W. 4221 (U.S. March 1, 1977) ...........5,16

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966) ............................... ..........  5

United States v. Montgomery County Board of Educa­
tion, 395 U.S. 225 (1969) ...............................................  16

United States v. Texas, 342 F.Supp. 24 (E.D. Tex. 
1971), aff’d, 466 F.2d 518 (5th Cir. 1972) ....................  4

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ......................  7

Ot h e r  A utho rities  

United States Statutes

20 U.S.C. § 1681, Title IX, Education Amendments of
1972 ..................................................................................  10

28 U.S.C. § 1257 (3) ........................................................... 3



IV

Miscellaneous PAGE

American Bar Association, Memorandum from 8. Ed- 
lund to Members of the Program Coordinating Com­
mittee of the American Bar Association (Feb. 28, 
1977) .................................................................   12

American Bar Association, Summary of Action Taken 
by the House of Delegates of the American Bar A s­
sociation, p. 17 (February, 1972) ................................  2

Brief of the President and Fellows of Harvard College 
as Amicus Curiae, DeFunis v. Odegaard, 416 TJ.S. 312 
(1974) ............................................................................... 10

Greenawalt, Judicial Scrutiny of Benign Racial Pref­
erence in Law School Admissions, 75 Colum. L. Rev.
559 (1975) ......................................................................... 14

Griswold, Some Observations on the DeFunis Case, 75 
Colum. L. Rev. 512 (1975) .................................... 10,15,18

Gunther, Foreword: In Search of Evolving Doctrine on 
a Changing Court: A Model for a Newer Equal Pro­
tection, 86 Harv. L. Rev. 1 (1972) .................................  17

O’Neil, Racial Preference and Higher Education: The 
Larger Context, 60 Ya. L. Rev. 925 (1974) ...........2,18,19

Sandalow, Racial Preferences in Higher Education: Po­
litical Responsibility and the Judicial Role, 42 U. Chi.
L. Rev. 653 (1975) ..........................................................10,11

Slocum and Huber, CLEO: A Narrative Report (Jan.
31, 1977) .......................................................................... 2,19



5tt Uje
Suprem e Court of tt)t H m teb States*

O ctober T e r m , 1976

No. 76-811

REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Petitioners,

v.

ALLAN BAKKE,
Respondent

BRIEF OF THE AMERICAN BAR ASSOCIATION, 
AMICUS CURIAE

INTEREST OF THE AMICUS

The American Bar Association is an unincorporated 
voluntary association, the members of which are attorneys 
practicing in all parts of the United States. With over 
211,000 members, the ABA is the largest organization of 
the legal profession in this country. The purposes of the 
ABA include the preservation of representative govern­
ment, the maintenance of high professional standards, the 
promotion of the administration of justice, and the applica­
tion of the knowledge and experience of the profession to 
the furtherance of the public good.

In 1967, the ABA endorsed the development of a national 
program to encourage and assist qualified but disadvan­
taged persons from minority groups to enter law school 
and the legal profession. This action was taken because, 
although minorities constitute a significant part of our 
population, they comprise only a small percentage of the



2

legal profession.* The ABA recognizes that lawyers have 
traditionally played a leading role in the political, economic, 
and social development of our country, and that the pres­
ence of more lawyers from minority groups is essential if 
the legal profession is to be responsive to the needs of 
society as a whole.

Perceiving the importance of increased minority enroll­
ment in law schools, the ABA became one of the sponsors 
and constituent members of the Council on Legal Education 
Opportunity (“ CLEO” ), a program designed “ to increase 
the number of lawyers from economically and educationally 
disadvantaged backgrounds.” The goal of CLEO is “ to 
shift law school admission policy away from the mechanized 
approach of judging the applicants on grades and LSAT 
scores alone.” ** Thus, the ABA has long advocated the use 
of such admissions programs as will be effective means of 
achieving broad representation of minority groups in the 
legal profession. This commitment is demonstrated by the 
following ABA resolution:

Resolved, that the American Bar Association en­
courages programs at law schools having as their 
purpose the admission to law school and ultimately to 
the legal profession of greater numbers of interested 
but disadvantaged members of minority groups who 
are capable of successful completion of law school.***

* Statistics indicate that less than 2% of the bar is black, and that 
other minority groups have even less representation. O’Neil, 
Racial Preference and Higher Education: The Larger Context, 
60 Va. L. Rev. 925, 943 (1974).

**A. Slocum and R. Huber, CLEO: A Narrative Report, 2 (Jan. 
31, 1977) (unpublished memorandum in the Library of the 
American Bar Association).

***Summary of Action Taken by the House of Delegates of the 
American Bar Association, p. 17 (February, 1972).



8

CONSENT OF THE PARTIES

We present this brief with the consent of counsel for 
both the petitioner and the respondent. Copies of the 
consenting letters have been filed with the Clerk.

OPINION BELOW

The opinion of the Supreme Court of California is re­
ported at 18 Cal.3d 34, 132 Cal. Rptr. 680, 553 P.2d 1152 
(1976).

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1257(3). Certiorari was granted on February 22, 1977.

QUESTION PRESENTED

Does the Fourteenth Amendment to the United States 
Constitution prohibit officers of a state university from con­
sidering, among other factors, an applicant’s racial or 
ethnic background in selecting students for admission from 
a large group of qualified applicants in order to diversify 
the student population, thereby improving the quality of 
education of all students, furthering the career oppor­
tunities of qualified disadvantaged members of society, 
and increasing the responsiveness of the professions to the 
needs of society as a whole?



4

ARGUMENT

THE CONSIDERATION OF RACE FOR THE PURPOSE 
OF PROMOTING THE PROFESSIONAL EDUCATION 
OF MEMBERS OF MINORITY GROUPS WHICH ARE 
UNDERREPRESENTED IN PROFESSIONAL SCHOOLS 
AND PRACTICE IS CONSTITUTIONALLY PERMIS­
SIBLE.

A. Consideration may be given to race along' with other 
factors in determining the applicants to be accepted 
in a professional school when the object is not invidious 
discrimination but is to make professional education 
available to members of minority groups.

This Court has often upheld reliance upon racial and 
ethnic characteristics ,in programs that promote the in­
tegration of minorities into society.* Only a few months 
ago, in considering the permissibility of the use of racial 
criteria in the reapportionment of voting districts, Justice 
White, writing for the majority, stated that, “  [N] either the 
Fourteenth nor the Fifteenth Amendment mandates any

*The federal government has shown concern for the disadvantaged 
status of different minority groups by requiring various affirm­
ative action programs. E.g., Morton v. Mancari, 417 U.S. 535 
(1974) (job preferences for American Indians); Lau v. Nichols, 
414 U.S. 563 (1974) (bilingual education for non-English speaking 
Chinese students); Katsenbach v. Morgan, 384 U.S. 641 (1966) 
(prohibiting disenfranchisement of Spanish speaking voters) ; 
United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971), aff’d, 
466 F.2d 518 (5th Cir. 1972) (educational plan ordered to give 
special consideration to Mexican-American students) ; Serna v. 
Portales Mun. Schools, 351 F. Supp. 1279 (D.N.M. 1972), aff’d, 
499 F.2d 1147 (10th Cir. 1974) (bilingual, bicultural education 
program).



5

per se rule against using racial factors in districting and 
apportionment.” United Jewish Organizations of Williams- 
burgh, Inc. v. Carey, 45 U.S.L.W. 4221, 4226 (U.S. March 1, 
1977). In his concurrence in that case, Justice Brennan 
emphasized the validity of voluntary and judicially imposed 
plans which employ racial criteria (45 U.S.L.W. at 4228-29):

I  begin with the settled principle that not every 
remedial use of race is forbidden. For example, we 
have authorized and even required race-conscious 
remedies in a variety of corrective settings. See, e.g., 
Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 25 (1971) ; United States v, Montgomery 
Board of Education, 395 U.S. 225 (1969); Franks v. 
Bowman Transp. Co., 424 U.S. 747 (1976).

This principle has long been applied by this Court ,in 
cases concerning integration of the nation’s public schools. 
E.g., Swann v. Charlotte-M ecklenburg Board of Education, 
402 U.S. 1 (1971) ; Brown v. Board of Education, 347 U.S. 
483 (1954). In Swann, the Court unanimously affirmed the 
right of educational policymakers to take into account a 
pupil’s race in assigning students to particular schools in 
order to promote integration (402 U.S. at 16) :

School authorities are traditionally charged with 
broad power to formulate and implement educational 
policy and might well conclude, for example, that in 
order to prepare students to live in a pluralistic society 
each school should have a prescribed ratio of Negro to 
white students reflecting the proportion for the district 
as a whole. To do this as an educational policy is 
within the broad discretionary powers of school au­
thorities ; absent a finding of a constitutional violation, 
however, that would not be wdthin the authority of a 
federal court.

Similarly, lower courts have recognized the importance 
of considering race in school integration cases. In United



6

States v. Jefferson County Board of Education, 372 F.2d 
836, 876 (5th Cir. 1966), Judge Wisdom declared:

The defendants err in their contention that the HEW 
and the courts cannot take race into consideration in 
establishing standards for desegregation. “ [T]he 
Constitution is not this color blind.” [footnote omit­
ted.]

. . . [T]he Constitution is color conscious to prevent 
discrimination being perpetuated and to undo the ef­
fects of past discrimination. The criterion is the rele­
vancy of color to a legitimate governmental purpose.

The Court in Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 
1967), authorized school districts to consider race in imple­
menting the policies of Brown v. Board of Education. In con­
cluding that a finding of de jure segregation is not necessary 
to justify the use of racial criteria, the Second Circuit stated 
(378 F.2d at 24-25):

Consideration of race is necessary to carry out the 
mandate in Brown, and has been used . . .  in cases fol­
lowing Brown. Where its use is to insure against, rather 
than to promote deprivation of equal educational oppor­
tunity, we cannot conceive that our courts would find that 
the state denied equal protection to either race by re­
quiring its school boards to act with awareness of the 
problem..

As in the school desegregation cases, the Davis Medical 
School has taken race into consideration as a means of pro­
moting more equal educational opportunities and fuller inte­
gration. Recognition of race for such a benign purpose has 
been accepted by this Court as constitutionally permissible. 
(North Carolina State Board of Education v. Swann, 402 
U.S. 43, 45-46 (1971)):

Just as the race of students must be considered in 
determining whether a constitutional violation has oc­
curred, so also must race be considered in formulating



7

a remedy. To forbid, at this stage, all assignments made 
on the basis of race would deprive school authorities of 
the one tool absolutely essential to fulfillment of their 
constitutional obligation . . . .  (emphasis supplied.)

See also Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974); 
Associated General Contractors of Massachusetts, Inc. v. 
Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, denied, 416 U.S. 
957 (1974); Carter v. Gallagher, 452 F,2d 315 (8th Cir. 
1972); Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970).

The consideration of racial criteria to equalize educational 
opportunities and further integration does not result in in­
vidious discrimination against minority applicants—the only 
type of situation, we note, in which this Court has struck 
down racial classifications. E.g., Loving v. Virginia, 388 U.S. 
1 (1967); Sweatt v. Painter, 339 U.S. 629 (1950); Tick Wo v. 
Hopkins, 118 U.S. 356 (1886); Strauder v. West Virginia, 
100 U.S. 303 (1879). Implicit in invidious discrimination is 
treatment of a discrete and insular minority in a manner that 
stigmatizes, excludes or disadvantages its members. Con- 
cededly, exclusion of minorities from professional schools on 
the basis of race or ethnic origin would be patently unconsti­
tutional. But the instant situation does not present such a 
case.

Bather than stigmatizing minorities, the Davis program at­
tempts to undo the results of decades of discrimination. Since 
all of Davis’ minority students are considered by the school 
to be qualified,* no stigma of inferiority can or should be at­
tached to them. Indeed, the program recognizes the positive 
value of having an ethnically and racially diverse student

^Record, vol. 1, at 67. “Every admittee to the Davis Medical School, 
whether admitted under the regular admissions program or the 
special admissions program, is fully qualified for admission and will, 
in the opinion of the Admissions Committee, contribute to the 
School and the profession.”



8

body. The Admissions Committee’s use of race or ethnicity 
as one of many criteria in accepting a minority applicant no 
more detracts from his or her ability to be an effective and 
competent physician than would its consideration of an appli­
cant’s artistic achievements, undergraduate field or rural 
upbringing.

The administration at Davis has the discretion, within con­
stitutional bounds, to determine the composition of the stu­
dent body that it believes would best promote the training 
of competent physicians. Courts long have appreciated the 
importance of leaving such decisions to the school administra­
tors who possess special expertise in this area. Justice 
Powell, writing for the majority, recognized that the case of 
San Antonio Independent School District v. Rodriguez, 411 
U.S. 1, 42 (1973), presented “ persistent and difficult ques­
tions of educational policy, another area in which this Court’s 
lack of specialized knowledge and experience counsels against 
premature interference with the informed judgments made 
at the state and local levels.” Only where “ state policy . . . 
operates to hinder vindication of federal constitutional guar­
antees” or invidiously discriminates on the basis of race or 
ethnic origin will courts interfere with the “ wide discretion 
[of school authorities] in formulating school policy.” North 
Carolina State Board of Education v. Swann, 402 U.S. 43, 45 
(1971).

Davis’ admissions policy resembles many voluntary reme­
dial programs that have been upheld by a majority of the 
circuits.* Thus, in Porcelli v. Titus, 431 F.2d 1254 (3d Cir.

*See Patterson v. Newspaper & Mail Deliverers’ Union of New York 
& Vicinity, 514 F.2d 767 (2d Cir. 1975) ; Morrow v. Crisler, 491 
P.2d 1053 (5th Cir. 1974) ; Associated General Contractors of Mas­
sachusetts, Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, denied, 
416 U.S. 957 (1974); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 
1972); S. 111. Builders Ass’n v. Ogilvie, 471 F.2d 680 ( 7th Cir. 
1972); Porcelli v. Titus, 43J F.2d 1254 (3d Cir. 1970).



9

1970), where school authorities abolished promotional lists 
in order to increase the number of black administrators 
better to meet the needs of the school system, the court 
strongly affirmed their action (431 F.2d at 1257-58):

State action based partly on considerations of color, 
when color is not used per se, and in furtherance of a 
proper governmental objective, is not necessarily a 
violation of the Fourteenth Amendment. Proper integra­
tion of faculties is as important as proper integration 
of schools themselves, as set forth in Brown v. Board 
of Education [citation omitted], . . .

# # #
It would therefore seem that the Boards of Education 

have a very definite affirmative duty to integrate school 
faculties . . . [To] pennit a great imbalance in faculties 
. . . would be in negation of the Fourteenth Amendment 
to the Constitution and the line of cases which have 
followed Brown v. Board of Education, supra*

These principles should also govern the conduct of school 
authorities in determining who should be admitted.

B. An Educational Program Which Encourages the Ad­
mission of Minority Students to Professional Schools 
Serves Legitimate and Substantial State Interests.

In the exercise of their proper administrative discretion, 
many professional schools have fashioned admissions policies 
which seek to select a student body that approximates a 
microcosm of society. The aim of these programs is not to 
represent proportionally each segment of society, but rather 
to provide a class sufficiently varied to expose each student 
to the viewpoints of individuals of different backgrounds. To 
accomplish this purpose, schools long have admitted appli-

* Additionally, it should be noted that, like Davis’ program, the New­
ark Board of Education’s policy was adopted voluntarily and in the 
absence of past intentional discrimination.



10

cants from different geographic regions. Additionally, fac­
tors such as undergraduate areas of specialization, work 
experience, military service, age, particular handicaps, ath­
letic achievements and professional aspirations are consid­
ered. Legislation, such as Title IX of the Education Amend­
ments of 1972, 20 U.S.C. § 1681, forbidding sex discrimina­
tion in education, has resulted in the admission of an 
increased number of women, leading to even greater diversity 
of the student bodies. Just as individuals from these varied 
backgrounds and interests contribute to the vitality of the 
academic experience, so will students from varied ethnic and 
racial heritages bring an added dimension to the professional 
education of all. Consideration of these factors does not, 
of course, result in a lowering of the professional standards 
of quality.

The value of having a student body that is racially and 
ethnically diverse, as well as economically, academically, 
culturally and geographically varied, lies in the “ socially 
significant” nature of race. Sandalow, Racial Preferences 
in Higher Education: Political Responsibility and the 
Judicial Role, 42 IT. Chi. L. Rev. 653, 685-86 (1975).* The 
importance of racial and ethnic diversity can be illustrated 
by considering two hypothetical classroom discussions of 
Brown v. Board of Education, supra, 347 U.S. 483, and its 
progeny,** one involving only white students and the other 
consisting of a racially mixed class. The addition of a 
significant number of minority students to the class would 
probably result in a greater understanding of the practical

*Other commentators have also recognized the enriching influence 
ethnic and racial minority students have on their classmates. E.g., 
Griswold, Some Observations on the DeFunis Case, 75 Colum. L. 
Rev. 512, 516-18 (1975).

**Brief of the President and Fellows of Harvard College as Amicus 
Curiae at 38, DeFunis v. Odegaard, 416 U.S. 312 (1974).



11

and psychological problems involved in school integra­
tion.*

The Medical School at Davis recognizes that the impor­
tance of diversity is not limited to the school but extends 
to the medical profession as well (Record, vol. 1, at 68) :

The non-disadvantaged professors, students and 
members of the medical profession with whom the dis­
advantaged fellow student or doctor comes into contact 
will be influenced and enriched by that contact. They 
will be exposed to the ideas, needs, and concerns of 
the disadvantaged minorities and thereby may be en­
listed in meeting their medical needs.

The same reasoning applies with equal force to the legal 
profession. Although the American Bar Association is in­
terested in the diversification of the student bodies in all 
professional schools, as an organization representing the 
legal profession it is concerned both with maintaining the 
standards of the profession and with promoting the admis­
sion of law students of diverse backgrounds to improve the 
quality of legal education and the profession. The ABA 
believes that the interchange of ideas between lawyers of 
varied backgrounds enhances their ability to deal effectively 
with the problems they confront. Diversity among members 
of the bar will help make the legal profession more respon­
sive to the needs of all segments of our heterogeneous 
society. For example, lawyers practicing in areas such as 
consumer, housing or criminal law may be more attuned to 
the particular interests of their minority clients if they 
have been able to discuss similar problems with colleagues 
whose backgrounds are closer to those of the clients. Sim-

*Furthermore, inclusion of these minority students in the class also 
would expose white students to the varying viewpoints held by 
different members of a particular minority group. See Sandalow, 
Racial Preferences in Higher Education: Political Responsibility 
and the Judicial Role, 42 U. Chi. L. Rev. 653, 686 (1975).



12

ilarly, a lawyer whose client’s interest is adverse to that of 
a minority group member may have a better understanding 
of that client’s case if he or she has been exposed to various 
perspectives which can be contributed by minority lawyers.

This Court has recognized the importance of a heter­
ogeneous academic environment in which there can be a 
free and vigorous interchange of ideas (Sweatt v. Painter, 
339 U.S. 629, 634 (1950)):

[A]lthough the law is a highly learned profession, we 
are well aware that it is an intensely practical one. 
The law school, the proving ground for legal learning 
and practice, cannot be effective in isolation from the 
individuals and institutions with which the law inter­
acts. Few students and no one who has practiced law 
would choose to study in an academic vacuum, removed 
from the interplay of ideas and the exchange of views 
with which the law is concerned.

Furthermore, although we agree with Justice Douglas’ 
observation in DeFunis v. Odegaard, 416 U.S. 312, 342 
(1974) that “ [t]he purpose of the University of Washing­
ton cannot be to produce black lawyers for blacks, Polish 
lawyers for Poles, Jewish lawyers for Jews, Irish lawyers 
for Irish [but] . . .  to produce good lawyers for Americans 
. . . , ” we recognize that the existence of barriers between 
the races in our society may make it easier for a minority 
client to relate to and place confidence in a minority lawyer. 
Moreover, statistics demonstrate that minority law students 
are more likely to specialize in areas where legal services 
are presently inadequate.*

Input from minority members of the bar not only adds to 
lawyers’ comprehension of the needs of minority com-

* American Bar Association, Memorandum from S. Edlund to Mem­
bers of the Program Coordinating Committee of the American 
Bar Association (Feb. 28, 1977) (unpublished memorandum in 
the Library of the American Bar Association).



13

munities but also aids in all spheres of legal representation 
and decision-making. Lawyers often p lay . a vital role in 
formulating policy which affects society as a whole. One 
recent example is the part played by lawyers in New York 
City’s fiscal crisis. Decisions made regarding cutbacks in 
public services had an impact on each New Yorker, includ­
ing many members of the minority communities. Those 
people charged with making decisions which influence the 
daily lives of the city’s residents should be sensitive to the 
needs of all interests in the city. This understanding may 
best be insured by having members of the city’s various 
racial and ethnic minorities represented among lawyers, 
bankers and politicians involved in the decision-making 
process.

Additionally, legal training is often a stepping stone or 
prerequisite to political, governmental and judicial careers 
where representation by persons familiar with the interests 
of the various segments of society is particularly important. 
Programs designed to increase the number of minority 
students who receive legal training help insure that the 
needs of many of society’s underrepresented groups will 
not be forgotten or minimized. Minority group members 
,in political and governmental positions not only will rep­
resent people of similar backgrounds but also will apprise 
their colleagues of their particular group’s interests, thus 
furthering the ultimate goal of having politicians and ad­
ministrators, irrespective of race or ethnic origin, effective­
ly represent all of society.*

The benefits of such programs become even more signifi­
cant when viewed in the context of their effects upon all 
segments of society. By opening doors to professional

*The absence of minorities in law schools not only is detrimental to 
the quality of legal education, the profession and society, but also 
deprives minorities of the ability to compete effectively for positions 
in government, politics and the judiciary.



14

careers to qualified minority students, the programs com­
pensate for the inferior primary and secondary education 
that many such students received. A significant number of 
minority applicants attended schools in districts that later 
were ordered desegregated pursuant to the mandate of 
Brown v. Board of Education, 347 U.8. 483 (1954) .*

The inferior primary and secondary educations received 
by many minority group students, combined with the 
heightened competition for admission, often deters minor­
ities from applying to professional schools. Programs which 
provide minorities with an incentive to apply to professional 
schools will allow our nation’s law schools to attract many 
promising disadvantaged minority group members whose 
test scores and undergraduate grades may be lower than 
those of many white applicants, but who offer additional 
and varied perceptions that will enrich the law school ex­
perience of all students, benefit the legal profession and 
contribute much to their communities.

Furthermore, a greater number of minority professionals 
will provide good role models for younger members of these 
communities and will encourage minority youngsters to seek 
positions which they previously may have considered in­
accessible. Greenawalt, Judicial Scrutiny of Benign Racial 
Preference in Laiv School Admissions, 75 Colum. L. Rev. 
559, 592-93 (1975). As the Dean of Admissions of Davis 
emphasized (Record, vol. 1, at 68):

Practice in disadvantaged communities by minority 
physicians will provide an example to younger persons 
in these areas demonstrating that disadvantaged and 
minority persons can break the cycle of hopelessness 
in which families do not improve their educational or 
economic status over generations.

Once minority children begin to aspire to professional roles, 
they will be more motivated to develop their academic skills.

*This Court recognized that such segregated school systems were 
inherently inferior. Brown v. Board of Educ., 347 U.S. 483, 495 
(1954),



15

This process of providing encouragement to minority youth 
will result in upward social mobility and, ultimately, a more 
integrated society.

The factor of example is particularly critical in the train­
ing of lawyers. The visible participation of minorities in the 
administration of law and justice gives to members of the 
minority community a greater sense of confidence in the 
operation of the judicial system. Griswold, Some Observa­
tions on the DeFunis Case, 75 Colum. L. Rev. 512, 518 
(1975). By correcting racial misperceptions, this fuller in­
tegration of minorities into the economic and social main­
stream cannot but benefit all parts of society.

C. Programs To Encourage And Promote the Admission 
of Minority Students to Professional Schools Satisfy 
Any of the Tests Which Are Invoked in Construing 
the Equal Protection Clause.

For the reasons stated above, facilitation and promotion 
of the entry of minority students to professional schools will 
effectuate the underlying purpose of the Equal Protection 
Clause of the Fourteenth Amendment. Programs which 
serve that purpose accordingly should be held constitutional 
whether the test be rational relationship to a legitimate state 
objective, compelling state interest, or something in between 
or all-inclusive.

1. In most equal protection cases, the Court determines 
whether a challenged program bears a rational relation­
ship to a legitimate state objective.* However, when a 
classification involves a “ suspect” group or a “ fundamental 
interest,” the Court has employed a stricter standard to 
determine whether the challenged scheme serves a compelling 
state interest through the least restrictive means available.**

*E.g., San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 
1 (1973) ; Dandridge v. Williams, 397 U.S. 471 (1970).

**E.g., Shapiro v. Thompson, 394 U.S. 618 (1969) ; Loving v. Va., 
388 U.S. 1 (1967).



16

This Court has often treated state use of racial classifica­
tions as “ suspect” . But those cases have involved dis­
advantageous or hostile behavior directed against a racial 
group.* As we have already demonstrated, the Equal Pro­
tection Clause does not prohibit all classifications based 
upon race. When racial criteria have been employed in an 
ameliorative fashion, as is true of the Davis admissions 
program, this Court has approved of such use without 
resorting to a strict scrutiny approach. E.g., United Jewish 
Organizations of Williamsburgh, Inc. v. Carey, 45 U.S.L.W. 
4221 (U.S. March 1,1977); Swann v. Charlotte-MecTclenburg 
Board of Education, 402 U.S. 1 (1971); United States v. 
Montgomery County Board of Education, 395 U.S. 225 
(1969).

In the absence of invidious discrimination or a constitu­
tionally protected right, the Court should apply the tra­
ditional equal protection standard and examine whether the 
special admissions program is rationally related to the 
legitimate state goals we have described above. Under this 
test, the Court must determine only whether the use of 
racial or ethnic criteria in the admissions process, to further 
the University’s goals of creating diversity, promoting in­
tegration and increasing professional responsiveness, is an 
arbitrary or capricious use of such classifications.

We submit that by its very nature, a program which en­
courages the enrollment of racial and ethnic minorities is 
rationally related to the State University’s undisputedly 
legitimate goals of integration, diversity and improvement 
of the profession.

2. Although we believe that the level of scrutiny required 
by the traditional rationality test is sufficient to determine

♦All of these cases have involved discrimination by the majority 
against a racial minority. No such detriment to any minority group 
results from the action taken by the Davis faculty.



17

the constitutionality of the Davis program, the program 
could also withstand the more precise analysis that this Court 
has sometimes used when examining classifications based upon 
immutable or sensitive characteristics. In some circumstances 
it applies what may be called an intermediate scrutiny test, 
less than the “ most exacting” but by no means “ toothless” . 
Trimble v. Gordon, 45 U.S.L.W. 4395, 4396 (U.S. April 26, 
1977).* In his dissent in San Antonio Independent School 
District v. Rodriguez, 411 U.S. 1, 99 (1973) Justice Marshall 
urged that the Court should

“ scrutinize particular classifications, depending . . . 
on the constitutional and societal importance of the 
interest adversely affected and the recognized invidious­
ness of the basis upon which the particular classification 
is draw n.. . .  that is, an approach in which ‘ concentration 
[is] placed upon the character of the classification in 
question, the relative importance to individuals in the 
class discriminated against of the governmental benefits 
that they do not receive, and the asserted state interests 
in support of the classification.’ Dandridge v. Williams, 
397 U.S. at 520-21 (dissenting opinion).”

Under this intermediate approach the Court considers 
whether the gains derived from a particular program encour­
aging minority admissions outweigh any possible detrimental 
effects. Among the gains which actually have been achieved 
through the program here involved are increased minority 
enrollment in the medical school and increased minority mem­
bership in the medical profession.** This increase in minor­
ity admissions not only serves the well-articulated and sub­
stantial state interest of remedying past discrimination but

*Other cases adopting this approach include Frontiero v. Richardson, 
411 U.S. 677 (1973); James v. Strange, 407 U.S. 128 (1972); 
Reed v. Reed, 404 U.S. 71 (1971). See also Gunther, Foreword: 
In Search of Evolving Doctrine on a Changing Court: A Model 
for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972).

**Record, vol. 1, at 67.



18

also will result in the improvement of medical education, the 
profession itself and society as a whole. We believe that these 
gains outweigh any possible detriments incidental to such 
admissions programs.

Two of the possible detriments often discussed are 
stigmatization and polarization along racial lines. Again, 
we emphasize that the program is entirely voluntary and that 
no member of a racial minority is compelled to apply through 
this program. There is no reason to believe that a member 
of a racial group would enter a program which would lead 
him or her to feel stigmatized or demeaned.*

Moreover, once it is understood that race, just as college 
grades and test scores, is only one of the criteria used in 
admissions decisions, there will be no reason for such stig­
matization or polarization. Respondent was denied admis­
sion not solely because he is white but because

taking into account a considerable complex of factors, 
including the fact that he was not a member of a minority 
group, a judgment was made that the overall structure 
of the first year class . . . would better apportion the 
opportunities of . . . [professional] education and reflect 
the needs of the community if another were selected 
rather than he.**

3. Even if the strict scrutiny test is applied, the state in­
terests served by the programs which accomplish this objec­
tive are nothing short of compelling. Integration in education 
is of paramount importance, and it cannot be achieved unless 
substantial numbers of minority students are admitted to 
professional schools. The battle to eliminate segregation and 
its pernicious effects, thereby promoting the objectives of 
the Fourteenth Amendment, cannot otherwise be won.

* 0 ’Neil, Racial Preference and Higher Education: The Larger 
Context, 60 Va. L. Rev. 925, 941 (1974).

**Griswold, Some Observations on the DeFunis Case, 75 Colum. 
L. Rev. 512, 519 (1975).



19

Remedial admissions programs are the least restrictive 
means to achieve not only the goals of a diverse student body 
and a more responsive profession but also a society better 
integrated at all levels. Without such a program, the number 
of minority students will be insignificant.* None of the al­
ternatives suggested by critics of such programs will result in 
the enrollment of an adequate number of minority applicants 
into the professional schools. Before implementation of 
remedial programs, schools had attempted to attract mi­
nority applicants through vigorous recruitment efforts. 
Nevertheless, minority enrollment declined,**

Those who contend that the only permissible remedial pro­
gram is the improvement of primary and secondary educa­
tion ignore the injustice of excluding from professional 
schools the present generation of minority applicants, most 
of whom were born after but did not benefit from the equal

*Record, vol. 1, at 67-68.

**See O’Neil, Racial Preference and Higher Education: The Larger 
Context, 60 Va. L. Rev. 925, 950 (1974).

Furthermore, even the implemention of some special admissions 
programs has not stemmed the tide of a decrease in black enroll­
ment in law schools. A. Slocum & R. Huber, C L E O : A Narrative 
Report, 56-57 (Jan. 31, 1977) (unpublished memorandum in the 
Library of the American Bar Association) :

The March, 1975 issue of the Association of American Law 
Schools’ Newsletter indicates that 1974 marks the first time 
since the onset of “special admission” programs in law school 
that the number of Blacks admitted to first-year law study de­
creased. It is suspected that the declining trend will not only 
continue, but will soon be reflected in statistics associated with 
other minority groups. . . .

*  *  *

If a decrease in minority admissions holds true, in the near 
future a frightful condition will exist where the demand in­
creases but the supply dwindles and yet, with proper assistance 
from CLEO, many of the difficulties of admission to and 
matriculation in law school can be overcome.



20

education ordered by this Court in Brown v. Board of Educa­
tion, 347 U.S. 483 (1954).*

Disadvantaged minorities are most likely to have worked 
and lived under the greatest educational handicaps, and 
therefore, are most in need of programs constructed to 
compensate for past discrimination. As a result, the goal 
of racial and ethnic diversity through the enrollment of 
minority students will not be accomplished through pro­
grams which fail to take race into account.

Finally, a remedial admissions program that establishes 
a goal for the number of qualified disadvantaged minority 
applicants to be admitted is constitutionally permissible. 
Such a goal which, as is the case at Davis, sets neither a 
minimum nor a maximum for minority students, does not 
constitute a quota; indeed the ABA does not support the 
use of quotas ,in admissions programs. Unlike a quota, a 
goal is “ no more than a starting point in the process of 
shaping a remedy, rather than an inflexible requirement.” 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1, 25 (1971). Thus, a goal does not operate as a ceiling 
on the number of applicants of any ethnic or racial group 
who may be admitted to a professional school.

For these reasons, programs to encourage the admission 
of minority students to professional schools fulfill compelling 
state interests and amply satisfy strict scrutiny analysis. 
See Associated General Contractors v. Altshuler, 490 F.2d 9 
(1st Cir. 1973) cert, denied 416 U.S. 957 (1974). Thus under 
any of the tests used in giving effect to the Equal Protection 
Clause, such programs are constitutional. It would, as the 
New York Court of Appeals declared in Alevy v. Downstate 
Medical Center, 39 N.Y. 2d 326, 334-35, 384 N.Y.S. 2d 82,

*See Green v. County School Bd. of New Kent County, 391 U.S. 
430, 435-36 (1968) (noting delay in implementation of Brown v. 
Board of Education).



21

89 (1976) “ indeed be ironic and, of course, would cut against 
the very grain of the amendment, were the equal protection 
clause used to strike down measures designed to achieve real 
equality for persons whom it was intended to aid.”

CONCLUSION

The American Bar Association believes for the foregoing 
reasons that it is constitutionally permissible for a profes­
sional school to consider race as a factor, along with other 
factors, in selecting its student body from among qualified 
applicants.

Respectfully submitted,

J u st in  A. S tanley , President 
R obert L. S tern  
1155 E. 60th Street 
Chicago, Illinois 60637

L aw rence  N ew m a n

L y n n  S . F r u c h ter

R ena  C. S eplo w itz

425 Park Avenue
New York, New York 10022

Attorneys for A m icu s  C uria e , 
A m erican  B ar A ssociation

June, 1977



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