Regents of the University of California v. Bakke Brief for Respondent
Public Court Documents
October 3, 1977
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Brief Collection, LDF Court Filings. Regents of the University of California v. Bakke Brief for Respondent, 1977. 77d81bef-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0e05c963-a5cc-4bba-a50e-a49c4213a727/regents-of-the-university-of-california-v-bakke-brief-for-respondent. Accessed May 06, 2025.
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J l l % ^ I tJ U T H tV (U x u if t
OF THE
llu ite ft 0 J a tim
O ctoiier T erm , 1977
I
N o.76 -8 1 1
T h e R egents of t u e U niversity of C aeifqhnia,
’ 'Petitioner,
I •• vs.
A m ,AN B akice,
; . Respondent.
On Writ of Certiorari to the Supremo Court of California
HRIFF FOR RnSl'ONIlFNT
R eynoer I I. CJoevin,
Rorert B. L inks,
.TjCOllS, B e a NCKENRURO, i f AY & UOEVIN,
111 Sutler Street. Suita 1800.
San franciico, California 94104,
Tolopltone; (416) 392 5164.
Attorneys for Respondent.
•V:
f t - #
-f s
i
/
Subject Index
Pages
Opinions below ........................................................................ j
Jurisdiction ............................................................................... g
Question presented.................................................................... 2
Constitutional provision involved ........................................... 2
Statement of the caso ........................................ 2
Baldm's Application for admission to the medical school 3
Admission to tho Davis Medical School............................ 5
Tho regular admission procedure ................................... g
•
Bakko’s interview and rating ........................................... 7
Tho special admission program ....................................... 9
Tho discriminatory results of the special admission
program .......................................................................... 72
Proceedings in the trial court ......................................... 75
Proceedings on appeal ..................................................... jg
Summary of argument ............................................................. 22
Petitioner violated Allan Bokkc’s right to ctpial pro
tection ........................................................................... 22
Tho California Supreme Court correctly decided this ease 25
Argument ................................................................................... ’ 26
Introduction ...................................................................... og
I
Tho special admission program violates Allan Bakko’s
right to tho equal protection of the law s.................... 27
A. The nature of the special admission program___ 27
1. The program is a racial ipiota ......................... 27
2 Petitioner’s quota uproots individual constitu
tional freedoms and replaces them with a de
structive system of group rights ................... 30
3. There is a distinction between petitioners quota
and the concept of “ affirmative action” .......... 35
•1. The constitutionality of petitioner’s quota is
subject to judicial review ............................. 39
11 Suiui-CT In dux
, Pape
Ii. The .special admission program deprives Allan
Bakkc of equal protect ion ..................................... ,|j
1. The rights (panted liy tins Fourteenth Amend
ment arc personal in nalnro ............................ ,jj
2. Allan Bakko's personal right to equal protec
tion lias keen violated ....................................... j5
II
The California Supremo Court correctly decided this ease 53
A. The court below properly considered this action
to he u case of racial discrimination .................... 53
II. The court below correctly applied the appropriate
judicial standards in judging the constitutionality
of petitioner's quota .............................................. 5;j
0. The decision below docs not require a return to
all while" professional schools ............................ go
I). 1 he court below rejected the use of a racial quota
to govern admission to professional school ......... fii
Conclusion ............................................................. 83
r r
/
Tabic of Anfliorilies Cifed
Cases Pages
A levy v. Downslalc Medical Center, 30 X V °d 3‘»C .318
N.I5.2d 537, 381 N.Y.S 2d 82 (|07f.) .................... ". ..21,27,58
Alexander v. Louisiana, ‘105 U.SJ. 025 (1072) 21
Anderson v. San Francisco Unified School District 357 P
Supp. 218 (N.D.Cnl. 1072) ................................. ' 37 38
nosou v. Hippy, 285 F.2d 13 (5lh Cir. 1000) .................... 50
Broidriek v. Lindsay, 30 N.V.2d (ill, 350 X E.2d 505 385
N.V.S.'Jd 205 (1070) ......................................................... .. C2
Ilrown v. Board of Education. 317 II.S. 183 (1051) . ! ! ! . . 45
Caiter v. Hallagher, 152 P.2d 315, modified on rch en hanc
•152 F.2d 327 (8th Cir. 1072) .......................................... ’ 3fl
Chance v. Board of Examiners, 531 F.2d 003 (2d Cir. 1070) 38
Commonwealth of Pennsylvania v. (Hickman, 370 PSunn
721 (W.D.Pa. 1071) ................................................ 3fl
Day-Briln Lighting, Inc. v. Missouri. 312 US. 121 (1052) 45
Dayton Board of Education v. Brinkman, 15 U S L W 1010
(US. June 27. 1077) ......... ............................................. 5a
DoFunis v. Odegmird, 82 Wash.2d 11, 507 P.2d 1100 (1073),
eert. granted, 111 US. 1038 (1073), vacated as moot 110
U S. 312 (1071) ........... 21, 20, 27, 20, 30,32,10, 13, -1 I, -19, 57 58
Dunn v. Blumxtcin, 105 U S. 330 (1072) .......................... 1G 50
EEOC v. Sheet Metal Workers Local 28 53° p 0.1 s°l
(2d cir. 1070 ................................... ■ 38
Flanagan v. President and Directors of Ocorgelown College,
lit 1* .Supp. 3/7 (D.D.C 10/0) .......................... ‘>.| 3j 38 pi
Pranks v. Bowman Transportation Co., Inc., 121 U.S. 717 ' 21
Urif/in v. Illinois, 351 I'.S. 12 (1050) ...............................
Criggs v. Duke Power Co., 101 U S 121 (1071) 35 3f,
Hall v. St Helena Parish School Board, 107 p.Hupp. 010
(E.D.Lu. 1001), aff'd per curiam, 808 US. 515 ( 1002) ..5|,52
Harper v. Mayor and City Council of Baltimore, 350 P.
Supp. 1187 (M.D.Md ), moditied on other grounds and
(di d soli until., Harper v. Kloslcr, 180 P 2d 1131 ( Ith
Cir. 1073) 38
IV Table ov AuTiionmEa Cited
Pages
Harper v. Virginia State Board of Elect ions. 383 | J.Fi. 663
(10(i(i) ................................................................................. II, 17
Hernandez v. Texas. 317 U.S. 175 (1051) ............................ .jo
Hirubuyushi v. United Stales, 320 US. 8l (1013) ............. r>5
Hobson v. Hansen. 280 P.Supp. 101. n.107 (D.D.C. 1070) .. 55
llopkins v. Anderson, 218 Cal. G2, 21 l\2d 550 (1033) ___ 22
Hughes v. Superior Court, 32 Cak’ d 850 11018) ............... 55
Hughes v. Superior Court. 330 U S. ICO (1050) ................. 50
Huparl v. Board of Higher Eduention, 120 P.Supp. 1037
(S.O.N.Y. 107G) ....................................................... 21 38
Kutzcnbuch v. Morgan, 3S1 U S. Gl] (10GG) ........................ 33
Kirkland v. Uepartment of Correctional Services, 520 P.2d
120, reh. cn banc denied, 531 F.2d 5 (2d Cir. 1075), ecu
denied, 07 S.Ct. 73 (1070) .....................................’ _ 3S
Koremat.su r. United Stales, 323 U S. 211 (1011) ___7 7 55
Kramer v. Union Free Seliool District, 305 U S. G21 (10G0) 37
Can v. Nichols, 113 U.S. 5G3 (1071) ................................... 38
liigo v. Town of Montelair, 72 N.J. 5, 307 A.2d S33 ( 107G)
..................................... 21.33,38,02
Liiulsloy v. Natural G'urlmnic Oas Co., 220 IJ.S. Gl (1011) 15
Loving v. Virginia, 388 U.S. 1 (10G7) ............................35,3G. 37
McDonald v. Santa Fo Trull Trausportalion Co. 327 U.S.
273 (1070) . . . . . ................................................................... |8
McLaughlin v. Florida, 370 U.S. 1SI (1001) ........... 7 7 7 jG37
McLanrin v. Oklahoma State Regents, 330 U.S. G37 (1050)
......... . ..........................................................................30,30. 33'
Meyer v. Nebraska, 202 U.S. 300 (1022) ............................... ;j;i
Millikcn v. Bradley, 35 U S LAV. 3873 (U.S. June 27, 1077)
....... ............................................................................. Gl
Missouri ex ivl. Gutncu v. Canada, 305 U.S. 337 (1038) 10. 13, 50
Morlou v. Maueari, 317 U.S. 535 (1073) ................. 13, 30
12, 37Oyama v. California, 332 U.S. G33 (1018)
1‘ ugel Sound Oilliu tiers Ass’n v. Moos, 88 Wash “d G77
l‘ -*d (1077) ......................................................... ‘ jj-j
Bail way Express Agency, Inc. v. New York, 330 U.S 100
( 1010) ............................................................ ■ |5
Reynolds v. Sims, 377 U.S. 533 (1001) ....................
Hollins v. Wright, 03 Cal. 305, 20 I*. 58 (1602) 7 7 7 7 7 22
Taui.e of AuTnoiiiriES Cited v
Shapiro v. Thompson, 303 U.S. G18 ( 10G0) .................... 30 3^53
Shelley v. Kraemer, 331 U.S. 1 (1018) ............. . *33 31
Shelton v. Tinker, 301 U.S. 370 ( I0G0) 7 7 7 7 7 ’ 53
Sipuel v. Board of Hegcnts, 332 L'.S. G31 (1018) ............. .30 33
Skinner v. Oklahoma, 3IG U.S. 535 (1012) ................. ‘ 4>>
Slaughlcr-IIou.se Cuscs, 83 U.S. ( 1G Wall.) 3G (1872) . .. . . 31
Stale Department of Administration v. Department of In
dustry, Labor and Human Solutions 70 Wis ‘*d 050
N.W.Jd 353 (1077) ........................ ............. ~ .. .7 ’ ~ " <j->
Swann v. Chnrloltc-Mccklenlnirg Board of Education 30'’
U-S- * U‘J7i) ..................................................... * ~40 ^
Sweatt v. Painter, 330 U.S. 620 (1050) ..........................30 33 -17
Tukahaslii v. Fish £ Game Commission, 331 U.S. 310 (1018) 37
United Jewish Organizations v. Carey, 07 S.Ct. 006 (1077) 5’
Uzzell v. Friday, 517 F.2J 801 (3th Cir. 1077) ................... 37
Washington v. Davis, 32G U.S. 220 (107G) ........................ 53 53
West Virginia Stuto Board of Education v. Burnette 310
US. G21 (1033) ....................................................... * 5J
Williamson v. Lee Oplieul Company, 318 U.S. 383 (1055) 35
Vick Wo v. Hopkins, 118 IJ.S. 356 (1880) .......................... ,j2
Constitutions
California Constitution:
Article 1, Section 21 ....................................... 3 15 17
Article IX, Section 0, Suhd. f ................................... ’ 00
United Stales Constitution. Fourteenth Amendment
................................................2, 3,15, 22. 23, 21, 26,31, 33, 35, 63
Congressional Reports
110 Cong. Bee. 7207 (10G1) .............................................. 3J
110 Cong. Bee. 7120 (10GI) ................................. 7 37
Regulations
•15 C.P.B.:
............................. .............................. 3 37
§580 1-80 13 ....................................................... .............. ^
vi T auix of A uthorities Cited
Statutes Pages
Civil Rights Act of lCli6 (12 U.S.C. § 1081) ........................ -JJ, |5
Civil Rights Act of 10G4 (12 U.S.C. § 2000a It) ................... 35
Title VI (12 IJ.S C. § 2000d) ............................. 3.15,17,37
Title VII (12 U.S.C. § 2000c) ................................. *30* 37.* I I
Title VII (42 U.S.C. § 2000e-2( j ) ) ...............................30*37
Voting Rights Act of 10G5 (12 U.S.C. § 1073) .................... 52
Texts
llickel, The Morality Of Consent ut 133 (1975) ................... 17
Ilickcl, The Original Understanding and the Segregation
Decision, GO llarv. L. Rev. 1 (1055) ............................... 75
1973-1071 nnllclin, School of Medicine, University of Cali
fornia, Davis, at 12 ............................................................. jq
Cohen, Race and the Constitution, 220 The Nation 135, 110
( 1!,7S) ............................. ,’ .20,33,-18
DeEunis Symposium, 75 Colum. L.Itev. 183 (1075) ............. 27
Dixon, The Supreme Court and Equality: Legislative Classi
fications. Dcsegyegfifion, and Reverse Diseriminalion, G2
Cornell L. Rc\( 401, 105 (1077) ............................... ‘ 75
Ely. The Constitutionality of Reverse Racial Discrimination,
41 ll.Chi. L. Rev. 723 (1074) .......................................... o(i
(1 Inzer, Affirmative Discrimination (1075) ............................ 3ti
Uart £ Is vans. Major Research Efforts of the Law School
Admission Council, Apr. 107G........................................... gp
Lavinsky, A Moment of Truth on Racially Based Admissions.
3 Hastings Const. L. Q. 870 (107G) ............................... 20,31
Lavinsky, DeEunis v. Odcganrd: The "Non Decision" With
a Messuge, 75 Colum.L.Itev. 520, 527 (1075) .................... 33,51
Law School Admissions: A Report to the Aliunnif A Is),
127 Cong. Rcc. 113530 (daily cd. Apr. 25, 1077) ........... 01
Linn. Test Bias and the Prediction of Cradcs in Law School
27 .1. Legal Kiltie. 203, 322-323 (1075) .......................... ' 30
T auix ok A uthorities Cited vii
Note. Reverse Discrimination, 1G Washburn L.J. 421 (1977/
Novick £ Ellis, Equal Opportunity in Educational and Em
ployment Selection, 32 American Psychologist 30G (1077) 10
Pastier, The D. Ennis Case and the Constitutionality of
referential Treatment of Racial Minorities, 1074 Sun Ct
Rev. 1 ......... ’ 1 • -
..................................... ........................... ......... 26
Kedish, Preferential Law School Admissions and the Equal
l rot eel ton Clause: An Analysis of the Competing Ariru-
nicnts, 22 U.C.L.A. L. Rev. 313 (1071) . . . . . . . . . . . ofi
Rostow, The Japaneso-Ainerican Cases—A Disaster 54 Vale
E L 480 (1915) ............................ * „
Scdler Racial Preference, Reality and The Constitution:
Bakke v. Regents of the University of California, 17 Santa
Clara L.Kev. 320, 350 (1077) ............................ 30
Similar, America in the Seventies at 30G (1077) 2G 33
Sowell, Black Education, Myths and Tragedies at 202 '
(1 ........................................................................
Statement of Unman Rights Commission of tho City and
County of San Francisco, .March 20, 1072 33
Suslow. (trade Inflation: End of a Trend?, Change, March
10t7 at 41-45......... * '......................................................... 5
^ 1 Jo' Vr/ **" Etierpretive History ( 10G8) at
Wilkins, The Case Against Quotas, ADL Bulletin, March ^
............................................................................. 2G
J n l ( ; t ‘ g a g m - u u ' ( l l n u r f
OK THE
l !luiU’ i> S ta te n
Octoheii Tkiim, 1977
No. 70-811
T he R egents op th e U niversity op Oalipounia,
Petitioner,
vs.
A li.an R akice,
Respondent.
On Writ of Certiorari to the Supreme Court of California
BRIEF FOR RESPONDENT
OPINIONS liELOW
The opinion of Die California Supreme Court is re
ported at 18 Cal.3d 31, 533 P.2d 1152, 132 Cal. Rptr.
080. The modification of the opinion is reported at
IS Cal.3d 2521». The opinions, findings of fact and con
clusions of law and judgment of the stale trial court
are contained in the Record filed with this Court* as
follows: Notice of Intended Decision (R . 280-300),
Addendum to Notice of Intended Decision (R. 331-
Mlcrcuflcr designated us “ It”.
o
385), Findings of Fact and Conclusions of Law (1L
380-392) and Judgment (If. 393-395).
JURISDICTION
The jurisdictional requisites are set forth in the
Brief for Petitioner.
QUESTION PRESENTED
Is Allan Balcho denied the equal protection of the
laws in contravention of the Fourteenth Amendment
to the United States Constitution when he is excluded
from a state operated medical school solely because
of his race as the result of a racial quota admission
policy which guarantees the admission of a fixed num
ber of “ minority” persons who are judged apart from
and permitted to meet lower standards of admission
than Bailee ?
/ _____
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States
Constitution provides in pertinent part; “ . . . nor shall
any Stale . . . deny to any person within its jurisdic
tion the equal protection of the laws.”
STATEMENT OP THE CASE
The primary issue in this case is whether the racial
quota admission procedure,employed by petitioner at
the Davis Medical School ( “ the medical school” ) de-
3
t Z a-n “ k'“ 1,(3 10 11,0 of
< » *■*"■ .o tin, M.iUcd
Alton BoLla SVadnolcd from II,e University „(
(mncbolo in 1002 will, „ Bachelor of Science dc-rea
n mechanical engineering. After receiving I,is dcnce
ho dal graduate work in mcchnnirnl „ . ̂ ’
tl*o University of Minncsoaf “ Wneenng at
servcf] fn,. e * ta for ft ye»>- and then
Corps. AVliilo'in ? fari.na
nl.ont Die ^ sih iiity of ^ ^ ^
S lm f T r 'r B l,h " ,ili" lr>' “ m ee, '"> attended Stanford University ami. in J „„e of 10 70 , received
3 " S‘ “ r S1c,c,,“ ‘ ‘ ‘ B ™ in mechanical engineer-
t,. Willie studying for liis muster's degree nnd for
“ lirse '"l;, “ » I * W "in' vnrionl
(It! S U i n ) * ""'dieiil ednention
As w 'iold r !° -'nCt,i‘;i" SC|,“ I l,US >“ l 'mnn caiy.■As lie (old the admission committee; r
“ Til 11171 my couth,,lonsly increasing interest in
^ s r s ' i i S ^ ' i r ,,eca" ’0 °
_ j ! u r « • -
„ uumpliiint n.ikke filed lvith n,,. V d r-
Com1 allowed that tl,c speejal admission
nglilfi under the Pomlecnlh A,,,em u T " ‘i, ,,is
Oonstii»uion. (he Privih-cs ami Inim., 1 V,! IhiilctJ Slaton
foniiii Constitution (Ani’cie I Section "on* C*;n'“Uof ‘ he t ’ali-
Olvil Itifjlils Act of 1004 (.,2* USC toloo Vl offoiiiut in llakkc-a filV0r us ,‘0 „ jHJOOd). 1 he trial court
Supreme Court afiirmcd, relyiiiK cxelu ' i ee lv" i*'0 1C''a,iforn‘“
lioiial grounds. (Peliiion for C'crlioriiri ' t C y °!‘ c«nslilu.
i»i» ica. ,8
i
which I believe demonstrate the strength of my
motivation and eonnnilinent to obtaining a med
ical education and becoming a physician. While
employed fnll-limo as an engineer, I undertook
a near full-time course load of medical prereq
uisites—biology and chemistry. To make up class
and commuting hours, I worked early mornings
and also evenings at my job. This was an ex
tremely taxing schedule in terms of time and
effort, and involved a significant financial com
mitment as well. My desire to become a physician
is further demonstrated by my involvement in
recent months as a hospital emergency room
volunteer. My experiences in this work have
strongly reinforced my determination to become
a physician.
Par from being wasted, I believe my engineer
ing experience would help me to approach medical
problems with insights different from those of
most physicians. I strongly believe that my hack-
ground iivfhalhemalies, computer programming,
mechanical design and analysis could he usefully
applied in medicine.” (li. 2:13)*
JOiU! of the inedieal school interviewers nolcil IhiU (iakke's en
gineering background could he n (-real asset to his potential ca
reer in medicine:
“ In the emergency room situation he |rtal.he| has become
aware of a number of instances in which a hit of expertise in
mechanical engineering might he to some advantage to im
proving health care, fo r example, Dr. Alexander, the head
of the (emergency room) complained that he had hied for
some lime to coax a hospital supply mnnfaclurer |o design a
gurney upon which un emergency patient could he X-invcd
without being moved from irurney to table. Ital.l.e has begun
to think about this and believes that he himself could come
• up with significant design if he had Iho chance ” fit ° M
5
/n m w 08 ° VtilaU ,I" ‘,‘‘l'g‘ aduftte grade point average
((HU A) was 3.51 on a scale of 1.0 (ft. 230). His
grade point average in the sciences (SOPA) was 3.45
L. Ul)0n ffi'aduatimi he was elected to Pi Tan
■gma, the national mechanical engineering honor
society (ft. 232). b 1
Bakko took the Medical College Admissions Test
(MOAT), which is divided into four sections (verbal,
quantitative, science and general information) and is
scored on a percentile basis. He scored in the Of.th
percentile (verbal), 04th percentile (quantitative),
9/th percentile (science) and in the 72nd percentile
(general information) (ft. 230).
In )073 and 1074 ftakkc duly and timely submitted
Ins application to Ihe medical school for admission to
the classes of 1077 and 1078, respectively (ft. 387).
Admission to The Davis Medical School
Petitioner, faced with the annual task of selecting
an entering class of 100 students, has established not
one, hut two, admission committees. For the most
part, the committees act independently of one another,
apply different standards to Ihe particular candidates
they judge and, ultimately, select students for Iho
tirst year class whoso qualifications differ markedly
depending upon which committee considers their
applications.
i
•IlidAo corned lax undergraduate grades before the occurrence
J ‘ o commonly referred to phenomenon of “grade inflation"
Mv I f ! l a *•*«i « i w . »E i,;
fi
Omj of these committees, the regular admission
committee, selects 81 of the 100 members of the first
year class. The other committee, known common))' as
the “ task force committee” or “ special admission com
mittee", selects the remaining 10 members and bases
its selection upon substantially lower requirements
than does the regular committee. The specific differ
ences in the standards, and the results of their use,
are discussed below.
The Regular Admission Procedure
The regular admission procedure is conducted as
follows:
(1) To be considered for admission, a candi
date must submit his application to the medical
school between July and December of the
academic year preceding the year for which
admission is sought (R. 1-10, 218).
(2) Normally the regular admission committee
reviews the'applications to select certain indi
viduals for further consideration. Once the com
mittee has conducted this initial screening, the
applicants selected are scheduled for personal
interviews. The minimum standard adopted by
petitioner provides that no student will be inter
viewed by the admission committee if he or she
has an OQPA below 2.5 on a scale of 1.0. Appli
cants for “ regular admission” who fall below the
2.f> “ cul-olf” mark are summarily rejected (It. (id,
150-151).
(3) In 1973, the interview procedure provided
for one of the faculty members of the admission
committee to interview each applicant. In 1971
applicants were interviewed twice, once by a l’ac-
7
nlty member and once by a student member of
the committee (Id.).
(4) Following the interview, each applicant
is rated by the various admission committee
members, taken into consideration for rating
purposes are the interview summary prepared by
the inlcrviewer(s), the applicant’s OQPA, SGPA
it CAT score and other biographical and back
ground information in the applicant’s file, such as
a description of extracurricular activities work
experience, a personal statement of reasons for
wanting to attend medical school, and letters of
recommendation (R. 02-03, 155-159).
Tho committee members rate each applicant on a
scale of from 0 to 100. The ratings are then added
together and the applicant’s total rating— in essence
the admission committee’s evaluation of his or her
potential ability—is used as a “ benchmark" in the
selection of students (R. 03). I „ 1973 five committee
members rated each applicant; thus, the highest pos
sible rating for that year was a score of 500. In 1974
six committee members rated each applicant and the
maximum possible total rating increased to 000 (Id.).
Uakke's Interview and Rating
In both 1973 and 197-1 petitioner considered Bakke's
application pursuant to the above-described proce
dure (R . 09, 389).
lu 1973, Dr. Theodore 11. West interviewed Bakkc
and concluded that':
“ On the grounds of motivation, academic rec
ord, potential promise, endorsement by persons
8
capable of reasonable judgments, personal ap
pearance and demeanor, maturity and probable
contribution to balance in the class I believe that
Mr. Balclce must be considered as 21 very desir
able applicant to this medical school and I shall
so recommend him.” (It. 22b)
A summary of Dr. West’s interview was circulated
among the members of the admission committee.
Bale Ice received a total rating of 168 out of a possible
500 (It. 180). Although Balclce's average rating was
92.8 out of a possible 100, petitioner rejected his
application (It. 258).
Between the rejection of his 1973 application and
his second application in 1971, Balclcc wrote to Dr.
George II. Lowrcy, Associate Dean at the medical
school and Chairman of the Admission Committee,
protesting the medical school’s admission program
insofar as it purported to grant a preferential ad
mission quota members of certain racial and ethnic
groups (It. 259).
After submitting bis 1971 application, Balclcc was
interviewed twice. One interview was with Mr. Frank
Gioia, a student member of the admission committee.
Mr. Gioia found that Balclce “ expressed himself in a
free, articulate fashion”, that he was “ friendly, well
tempered, conscientious and delightful to speak with”,
and concluded that, “ T would give him a sound
recommendation for [a] medical career.” (It. 228-29)
Mr. Gioia gave Balclce an overall rating of 91 (It. 230).
The second interview was with Dr. Lowrcy, who, by
coincidence, was the person to whom Balclce had writ-
i)
ten in protest of the special admission program. Dr.
Lowrcy and Balclce discussed many subjects during
the course of the interview, including the medical
school’s decision to grant a preferential admission
quota to certain racial groups (It. 228). Apparently,
they disagreed over the merits of that decision (Id.)!
In contrast to the two other persons who had inter
viewed Balclce, Dr. Lowrey found him “ rather limited
in his approach” to problems of the medical profes
sion and said that, “ the disturbing feature of this
was that he had very definite opinions which were
based more on his personal viewpoints than upon a
study of the total problem.” (R. 228) Dr. Lowrey
gave Balclce an overall rating of 86 (It. 230).* Other
members of the admission committee, after reviewing
these interview summaries, as well as Balclce’s overall
tile, rated him 96, 91, 92 and 87, for a total rating
of 519 out of a possible 600; Balclce’s average rating
on his second application was 91.2 (h i ) . Again, peti
tioner rejected his application (ty. 273).
The Special Admission I‘ ro(jT(un
At the same time as it administers and maintains
the regular admission procedure at the medical
school, petitioner also operates and maintains at
Davis a “special admission program’’* which, in
petitioner’s words, purports to “ increase opportuni
ties in medical education for disadvantaged citizens”
227̂ ** kouroy’s complete interview summary is found at It. 220-
, l,C|'!oirli,T'r AC-0‘fV ,> I»,0|?r«»l «■* die “Task Force Program"(Jt. 1 Do 190; Brief tor Petitioner ul 9).
10
(It. 195-90). Although the University originally dc-
clnved that the program was for disadvantaged stu
dents regardless of race (It, 01 00, 80), no definition
of the term “ disadvantaged” has ever been formulated
by the University (It. 103-01), the program Inis been
heavily staffed with minority personnel (It. 102-03),
and only minority applicants have been admitted to
the medical school through the program (It. 168, 201-23
and 388).'
The special admission program is almost as old as
the medical school itself. The school opened in 190S
and the program commenced only, one year later, in
September of 1909. Since that time, petitioner annu
ally has set aside and nllotcd to the program 10% of
the places in the first year class (It. 104, 108). On
these facts, the slate trial court concluded that the
program constituted a formal racial quota (R. 3S8).
The California Supremo Court, by a majority of 0-1,
agreed (Pet. App.-A, p. 39a; 18 Cal.thl at 01).
Petitioner administers the special admission pro
gram as follows:
(1) Applicants are asked to indicate on their
applications whether or not they wish to he
'Al trial anil in Ilia court below, petitioner ilenieil that race
was tho pivotal factor in the special admission pio«;rain (It. 30,
0a, 73, SO). In light of llie instant record, which confirms the
existence of a formal racial quota al the medical school (It. 380,
n!)0), it is interesting to note that in its 1!I73-197I IlnUi-lin,'
distributed to Ualdce and other potential applicants, petitioner
Slates without qualification that ‘'jr|cli|fions preference and race
are not considered in the evaluation of an applicant." 1073 1071
Hi.i i k t i .v , S ciigoi. or Mm ic in e , L'm vciisitv or Oai.iio u n i\ D im s
at 1*2.
11
considered for admission under the special
admission program. The 1973 application
form, prepared by the medical school,
allowed an applicant to indicate whether or
not he or she wished to he considered as
an “ economically and/or educationally dis
advantaged” applicant. On the 1971 applica
tion form, prepared by the American Medi
cal College Application Service (AMOAS),
and used by slightly more than half of the
medical schools in the country, the pertinent
question asks; “ Do you wish to be con
sidered as a minority group applicant?”
(R. 65-80, 146, 197, 232, and 292) According
to petitioner’s published admission statistics
tho word “ minority” includes “ Blacks” ’
Asians , Chicanes”, and “ American
Indians” (R. 203-205, 216-218).
(2) Once an applicant has indicated a desire to
be considered under the special admission
program, his application is evaluated by a
special subcommittee, separate from the
regular admission committee (11. 65, 1 6 1 -
16 2 , 388). This special subcommittee is com
posed of minority and non-minority faculty
members, and students from minority back
grounds only (R, 162). It conducts a separ
ate screening procedure, parallel to that of
the regular admission committee (R. 6l-6fi).
The special subcommittee, however, is not
bound by the medical school standard that
no student will be interviewed if bis OCJPA
is lower than 2.5. In 1973 and again in 1974,
minority students were interviewed and
admitted under the special admission pro-
giam even though they possessed OQPA’s
well below tho 2.ft cut-oft’ point. Minority
students admit led under the special program
possessed overall grade point averages as
low as 2.11 in 1JJ73 and 2.21 in 11171 (11. 210,
223):
(3) Following the interview, tho .special sub
committee assigns the various special appli
cants an overall personal rating, similar to
tho “ benchmark” procedure of the regular
admission committee (11. 00, 101-108). Fi
nally, the special subcommittee recommends
to the regular admission committee various
candidates for admission to the medical
school. The reconuncndultons continue to he
vuide until the pre-determined quota of It!
is filled (It, 108).
The Discriminatory llesulta of the Special Admission Program
According to^statistics puhished by petitioner, the
average applicant admitted under the special admis
sion program possesses academic and other qualifica
tions inferior to those of Gnkkc and of the average
student admitted under the regular procedure (It.
388). The following chart compares Bnkkc’s qualifica
tions with those of applicants who are regularly ad
mitted and with those of applicants admitted under
the special admission program.
Olaaa Entering In Tall, 1873
MOAT Pcrcenlilo1
x
13
SOFA* OarA'» Verb. Quan. Sci.
den.
Info.
Allan Ilakke 3.-15 3.51 05 04 07 72
Average of
Regular Admittcrs 351 3.40 81 76 63 60
Average of
Special Admittccs 2.62 2.08 46 21 35 33
Class Entering In rail. 1074
MOAT Perceutilu
sgVa OOPA Verb. Quau. Scl.
Gen.
Info.
Allan Ilakke 315 351 06 04 07 72
Average of
Regular Admittees 335 320 60 67 62 72
Average of
Special Admittccs 2.42 2.52 31 30 37̂ 18"
The above chart contains only statistics relating to
grade point averages and MOAT scores. Also consid
ered in the admission process, as previously men
tioned, is the personal interview, which provides a
further basis for the “ benchmark’’ rating given each
applicant. The benchmark rating takes into consid
eration the OGFA, SOFA, MOAT scores, the inter-
*Thc Medical College Admissions Test (MOAT), as imlcd pro-
viously, is subdivided into four sections: Verbal (Verb ), Quanti
tative (Quail ), Science (Sci), and General Information (Gen
Info).
'T'ndcrgradunlc grade point average in science courses.
'“Overall undergraduate grade point average. •
"The figures contained in this chart for the special udmitlces,
like the figures contained for the regular udmiltccs, represent
uveruye scores and do not indicate the highest or lowest achieve
ments of either group (It. 210, 223).
14
view summary and, in tuUUtion, oilier background
data in Iho applicant’s Ale, such as Hie particular
details of a “ disadvantaged” background (II. 63-66).
Even with this rating procedure, designed to
give the special applicants credit for overcoming “ dis
advantage”, applicants admitted under the special
program possessed overall ratings below those of
students rejected under the regular admission" proce
dure. Indeed, petitioner admits that some of the
special admittees received overall ratings of as much
as 30 points below Bakkc’s rating (U. 181, 388).
These facts establish that the special admission pro
gram is designed to grant, and in fact does grant, a
preferential admission quota to members of certain
racial and ethnic groups (II. 388-390). Petitioner
never has defined the term “ educationally disadvan
taged”, or the term “ economically disadvantaged" (It.
at 163-161). On the facts of this case, however, these
terms arc syntmymous with “ member of a minority
group" for, as stated above, only minority applicants,
and no non-minorilv applicants, are admitted to the
medical school under the special admission program
(11. 188, 201-223, 388).
'rims petitioner's special admission program is
based upon race. The 16% allotment to the program
of places in the first year class at the medical school
constitutes a racial quota of 16%. Under the program,
minority applicants are judged apart from and are
allowed to satisfy lower standards than Bakke and
other non-minority applicants; they are also guaran
15
teed at least 16 places in each entering class (It. 164-
168, 388, 390).
Proceedings in the Trial Court
Foljowing the rejection of his 1971 application,
Bakke instituted this action. Specifically, he alleged
that he is qualified in every respect to attend the
Davis Medical Scliopl; that petitioner, by virtue of
its maintenance and operation of the special admis
sion program, prevented him solely because of his
race from competing for all of the available places
at the medical school and thereby discriminated
against him in violation of the Fourteenth Amend
ment to the United States Constitution, the Privileges
and Immunities Clause of the California Constitution
(Article I, Section 21), as well as the Civil Bights
Act of 1964 (42 U.S.O. § 2(100d); and finally, that
because of this unlawful discrimination, petitioner
denied him admission to the medical school. Bakke
prayed for the court to issue an Alternative Writ
of Mandate, an Order to Show Cause, and to
enter its judgment declaring that he is entitled to
admission to the medical school and that petitioner is
lawfully obligated to admit him (It. 1-5).
Petitioner denied the above allegations and cross-
complained for a declaration as to the legality of the
special admission program (It. 2-1-32).
On August 5, 1974 the trial court issped an Alter
native Writ of Mandate, ordering petitioner to admit
Bakke to the medical school or, alternatively, to
1G
appear ami show cause why the writ had not been
complied with; at the same time, tin: court issued an
Order to Show Cause, directing petitioner to appear
before the court and show cause why it should not he
enjoined pemhnte lite from refusing to admit Bakke
to the medical school (If. 3-1-38).
On September 27, 1971 the trial court conducted a
hearing on the Alternative Writ of Mandate and
Order to Show Cause. Counsel for both parties stipu
lated that the hearing would also constitute a full trial
of the case on the merits. Following oral argument,
the trial court ordered the case submitted fit. 282).
On November 25, 1974 the court tiled its Notice of
Intended Decision, declaring that the special admis
sion program is unlawful (Pet. App. D ; It. 280-308).
Doth parties prepared proposed Findings of Fact
and Conclusions of Law, as well as a proposed Judg
ment (It. J15-380). Following a further hearing on
the matter, held February 5, 1975, the trial court pro
ceeded to draft its own Findings and Conclusions
(It. 37G). On March 7, 1975 the trial court tiled an
Addendum to the Notice of Intended Decision (Pet.
App. Is; It. 381-381); the court also tiled its Findings,
Conclusions and Judgment (Pet. App. F, f j ; ft. 3SG-
391).
The trial court specifically found as a matter of
fnct Hinti
■ ■ • [ i special admissions program purports
to he open to ‘educationally or ceonumieallv dis
advantaged’ students. In the years in which
[Bakke] applied for admission, the medical
17
school received applications for the special ad
missions program from white students as well as
lrom members of minority races, but no white
students were admitted through this special pro
gram in either of said years. In fact no white
student has been admitted under this program
since its inception in. 19G9. In practice lhis°spe-
cial admissions program is open only to members
of minority races and members of the white race
aic barred from participation therein. In each of
the two yeors in which [Bakke] applied for ad
mission [petitioner] set a pre determined quota
ol 1 U to be admitted through the special admis
sions program. This special admissions program
discriminates in favor of members of minority
races and against members of the white race
[Bakke], and other applicants under the general
admissions program (Pet. App F n 1 1 4 ,,
115a; R. 387-388) ’ 1
Ihe ti ial court concluded and rendered judgment
that the special admission program at the Davis
Medical School violated Bakke’s rights under the
Fourteenth Amendment to the United States Constitu
tion, the Privileges and Immunities Clause of the Cali
fornia Constitution (Article I, Section 2 1 ) and the
Civil Bights Act of 1901 ( 1 2 U.S.O. $2000d) (Pet.
App. F, p. 117a; 17. 390, 391).
In paragraph 2 of the Judgment, the trial court
ruled that:
•
*‘ . . . | Bakke] is entitled to have his application
for admission lo the medical school considered
without regard lo his race or the race of any other
applicant, and [petitioner is] hereby restrained
18
ami enjoined from considering [Bakke’s] race or
Hie race of any other applicant in passing upon
his application for admission . . . (Pet. App. G,
p. 120a; It. 891)
The trial court also awarded Bakke his court costs,
hut refused to enjoin the operation of the special
admission program or to order Bale Ice’s admission to
the medical school (Id.).
Judgment was entered on March 7, 197f>. Balckc’s
counsel then requested that petitioner consider the re-
submission of Bakke’s application for admission to
the medical school pursuant to paragraph 2 of the
Judgment. Petitioner’s counsel responded that the
University would consider such an application as it
would “ an)* other such application coming in at this
late dale.” Petitioner’s counsel later added that the
medical school would only consider Bakke’s appli
cation “ in the normal course and without reference »
to Paragraph 2 pf life Judgment . . . .” (It. 108 111).
Proceedings on Appeal
On March 20, 1975 petitioner filed a Notice of
Appeal from those parts of the Judgment holding the
special admission program unlawful, requiring peti
tioner to judge Bakke’s application without regard
to his race or the race of any other person, and
awarding Bakke his costs of litigation (It. 298-399).
On April 18, t97o Bakke tiled a Notice of Cross Appeal
from that part of the Judgment denying his admission
to the medical school (17. -117-118). Finally, while this
case was pending in the California Court of Appeal
19
for the Third Appellate District, the Supreme Court
of California granted the University’s Petition for
Transfer and accepted the case for direct review (R
123-130; 13(i).
On September Ifi, 1976 the California Supreme
Court issued its opinion in (his case. The court, after
reviewing the facts of the case and the importance of
the constitutional questions presented for decision,"
concluded that where the state has imposed a classifi-
cation based upon race, “ . . . not only must the pur
pose of the classification serve a ‘compelling state
interest hut it must be demonstrated by rigid scrutiny
that there are no reasonable ways to achieve the
state’s goals by means which impose a lesser limita
tion on the rights of the group disadvantaged by the
classification. The burden in both respects is upon
the government.” (Pet. App. A, pp. 17a-18a; 18 Cal 3d
at 49).
The court assumed aryuenda that some of the
objectives of the special admission program “meet
the exacting standards required to uphold the validity
of a racial classification insofar as they establish a
compelling governmental interest.” (Pet: App. A, p.
23a; 18 Cal.3d at 53) The court, however, held that
the University had not satisfied its burden of justifv-
ing the racial means employed to achieve the goals of
the program.
. . [Ur]c are not convinced that the Uni
versity has met its burden of demonstrating that
the basic goals of the program cannot be sub-
•Tcl. App. A, pp. la-12a; 18 Cal.3d at 38 15.
20
si antially achieved by means less detrimental to
the rights of tlio majority." (Id.)
The court did not prevent the University from
formulating a special admission program based upon
other factors, such as disadvantage. Indeed, the
court's opinion encourages such a procedure:
“ In short, the standards for admission em
ployed by the University are not constitutionally
infirm except to the extent that they are utilized
in a racially discriminatory manner. Disadvan
taged applicants of all races must he eligible for
sympathetic consideration, and no applicant may
he rejected because of his race, in favor of
another who is less qualified, as measured by
standards applied without regard to race. We
reiterate . . . that we do not compel the Univer
sity to utilize only ‘the highest objective academic
credentials' as the criterion for admission." (Pet.
App. A, ji. 25a-2Ga; 18 Cal.3d at 55 (footnote
omitted)) ^ "
The court did not guarantee that alternate meas
ures would result in the enrollment of precisely the
same number of minority students as under the racial
quota (Pet. App. A, p. 2Gu-27n; 18 Cal.3d at 55-58).
The court's conclusion was that the University had not
established that the special admission program at issue
‘‘ is the least intrusive or even the most effective means
to achieve this goal." (Id. at 27a; 18 Cal.3d at 58)
The California Supreme Court also ruled that, inso
far as Bakke’s right to he admitted to the medical
school is concerned, the University hears the burden
of proving that Dakke would not have been admitted
21
had there been no racial quota (Pet. App. A, p. 38a;
lb Cal.3d at 83-81). The case was remanded to the
trial court for the purpose of determining, under the
proper allocation o f the burden of proof, whether
Ilakke would have been admitted to the medical school
absent this special admission program (Id .)."
The University filed a Petition for Rehearing,
which included a request for a stay, and it stipulated
that, given Bakke’s academic credentials and his high
“ benchmark" rating, the University could not sustain
its burden of proving that he would not have been
admitted had there been no racial quota (R. 487-488;
see generally Id. at 445-490).
The California Supreme Court denied the Petition
for Rehearing and denied the application for a stay
(Pet. App. B ; R. -191). In view of the University’s
stipulation, however, the court below modified its
initial opinion to direct that Bakke he admitted to the
medical school (Pet. App. C; R. 192-193; 18 Cal.3d
252b).“ * 11
“ Tlio court below was clearly correct on the Itunlcn of proof
issue. Once the plaintiff mates out a pinna facie case of raeiul
discrimination, the burden of justifying the discrimination, and of
explaining away the impact upon the plaintiff, shifts’ to the
defendant. As this Court noted in Pranks v. Uowinan Transpor-
lutiun to., Inc., -121 II.S. l l 7, 773, n. 32; 4<No reason appears
why (he victim rather than the perpetrator of the illegal act
should hear the burden of proof See u/so Vlcxundcr v
Louisiana. 105 IIS. C25 (1072).
111 lie 11 lit-f of the National Conference of lilack Lawyers as
Amiens Curiae argues that the decision below should he vacated
and remanded because of u recent amendment to the California
Constitution. On November 2, 1070, approximately a mouth ami
a half after the slate supreme court decided this case, the Cali
fornia Constitution was amended to provide, in part, that “ .
22
SUMMARY OF ARGUMENT
The Fourteenth Amendment provides that no state
shall deprive any person within its jurisdiction of
the equal protection of the laws. In this ease, the
Court must decide whether Allan Bakke, a person
within the jurisdiction of the stale of California,
was denied equal protection when petitioner excluded
him from a state operated medical school solely be
cause of his race.
Petitioner Violated Allan Bakkc's Right to Equal Protection
Baklce was barred from the school ns a result of a
racial quota admission policy. The policy was im
posed by petitioner at the Davis Medical School, an
institution which had no prior history of racial dis
crimination. Pursuant to the quota policy, petitioner
set aside 1G places in the first year class for members
of certain racial antj.. ethnic groups, and thereby pre
vented Baklce, wfto was not a member of one of the
preferred groups, from competing for those places.
The persons selected by the quota were judged by a
separate admission committee which applied lower
standards than were applied to Bakke.
|N'Jd person shall he dehorn'd admission'to any department of the
University on account of race, relminn, ethnic heritage, or sex."
California Const.. Art. IX, §11, Solid, f. Amicus asserts that
"there, is now available to Respondent the possibility of stale
relief for the action he brought in slate court.” Brief of the
National Conference of Ulacl; l.awyers as Amiens Curiae at 117.
Amiens, however, ignores the. fact that Babko originally was
rejected by the medical school over three ycur.i before the
aiiu.li//iniHt ir/es mloptcil. In California, stale eonslilulional amend
ments are prospective in nature, unless a contrary intent clearly
appears. .SVc Hopkins v. Anderson. '_*|.S Cal. (i'J. lit; 87, J| |\:id
filiO, afil (lO'j't); Rollins v. Wright, ikl Cal. 305, JO I*. 58 (1802).
Thus, Amiens’ argument is not pertinent.
.23
The Supreme Court of California found that peti
tioner’s quota system discriminated against Bakke
because of his race and concluded that the quota vio
lated Bakkc’s constitutional right to equal protection.
Ibis conclusion is entirely consistent with the clear
mandate of the Fourteenth Amendment which, by its
own terms, applies to “any person".
i he previous decisions of this Court are authority
for the conclusion of the court below. On more titan
one occasion, the Court bas squarely held that the
light to equal protection is personal in nature. Be
cause slate imposed racial discrimination is constitu
tionally suspect, persons victimized by it have always
been afforded vigilant judicial protection; such
discrimination is unlawful unless the government
demonstrates that it is strictly necessary to promote
a compelling state interest. In this instance, the con
cept of a “ compelling” slate interest is not synonymous
with the recognition of an important social objective;
it connotes a degree of importance that is so pressing
as to override our traditional abhorrence of racial
discrimination. These were the principles that the
California Supreme Court applied in deciding this
case.
Petitioner, however, asserts that the judgment
below must he reversed because the protection granted
by the Fourteenth Amendment does not apply t0
any person” hut, instead, covers only ‘members of
certain “ discrete and insular” minority groups. Ac
cording lo petitioner, the instant preferential racial
quota is “ benign”, and therefore legal, because it is
designed to assist such minority groups, even tliomrh
l
24
it excludes Allan Balclcc from the medical school.
Petitioner claims that Balclcc is not entitled to judi
cial protection in this case because he is a member
of the so-called “majority".
Petitioner’s theory, if adopted, would fundamen
tally transform the right to equal protection. That
right no longer would be available lo every individual,
but would depend upon the race of the person assert
ing it. Advancement by way of individual achievement
would be replaced with the nil a that rights and bene
fits can be awarded according to ancestry. Such a
concept raises grave and troublesome questions of
policy. Who is to be preferred, and by what stand
ards are racial preferences to he judgedT*
The ultimate fact is that a racial preference is not
“benign”, but an evil heretofore recognized by the
American judicial system. The appropriate course
for this Court tpr follow in this case is lo reject peti
tioner’s quota and lo invoice the clear mandate of the
Fourteenth Amendment.
“ The instant quota grants it preference to Blacks. Cliicnnos,
Asians and American Indians. In DePunis v. Oilcgaani, S2 Wash.
2d 11, 17-18 & n.3, 507 F.2d l ISO, 1171 & n il (107.1), matted <n
moot, 110 US. 312 (l!l7lj, the special admission program favored
Black Americans, Chicnno Americans, American Indians and
Philippine Americans, hut did not prefer Asians. .S're also ilupnrt
v. Board of Higher Kducutinn. 120 F. Snpp. 10S7, JOBS £ n 31
(S.D.N.Y. 1070) (Blacks und llispanics; Asians uero not. favored
hccausc they were considered part of the “ majority” ! ; Flanagan v.
President and Directors of ticorgctown College, 117 F. Snpp. 377,
382 (D.D.U. 1!)70) jpreferred groups were Black Americans,
Native Americans, Aslan Americans and Spanish speaking Amer
icans!; Inge v. Town of Montclair, 72 N.l. :>, 13-1 1, 307 A.2d 833,
837 (11170) (Blacks were the onlv preferred group|; Alevv v.
Downslale Medical Center. 3!> X.V.Jd 320 330. 318 N.F.2.1 537,
511, 381 i\'.V.S.2d 82, 80 <1070) (Blacks, Puerto llicaus, Mexican
Americans and American Indians).
25
The California Supreme Court Correctly Decided this Case
In addressing the issues presented by this ease, the
California Supreme Court was not unmindful of the
ends sought to be achieved by petitioner. The court
below accepted ayyuciulo several of petitioner's goals,
hut rejected petitioner’s preferential racial quota as
an unconstitutional means to achieve those objectives.
The court below noted that the record was devoid of
any evidence that the instant quota was the least in
trusive mechanism available to petitioner, oy that pe
titioner had ever attempted any alternate measure.
Although the California Supreme Court disapproved
of petitioner’s quota, it left petitioner free to explore
new and innovative admission policies. The only limi
tation placed upon petitioner was one consistent with
the Constitution and the previous decisions of this
Court; the University may not prevent an applicant
such as Allan‘Balclcc from attending the Davis Medi
cal School solely because of his race.
The decision below is a practical and sensitive re
sponse lo a complex social issue. It is clearly correct
and should he affirmed by this Court.
26
ARGUMENT
INTRODUCTION
The question presented in this ease is whether peti
tioner’s special admission program, which excluded
Allan Bakke from the Davis Medical School solely be
cause of his race, denied Bakke the equal protection of
the laws. This question, appropriately described by
the court below as “ sensitive and complex”, i s of vital
concern. It presents a constitutional conlliet in which
this Court must decide whether tho right to equal pro
tection, granted by the Fourteenth Amendment to
“ any person” , does iruleedjextend to individuals such
as Allan Bakke or, instead, applies only to protect
certain racial and ethnic groups.
The issue is by no means new. It has attracted con
siderable attention,” evoked a wealth of comment,"
and has been the focus of previous litigation."
*“18 Cal.3d at ‘M i/
"Approximately 50 briefs amicus curiae have been filed herein.
“ Set, eg., Lavinsky, A Moment of Truth on Racially Based
Admissions, 3 Hastings Const. L. Q. 87!) (107G); Rcdisli, Pref
erential Law School Ailmissions and the I'r/ual Protection Clause:
-In Analysis of the Competing Arguments, 22 IJ.C.h.A. E. Rev.
313 (1071); Ely, The Constitutionality of Reverse Racial Dis
crimination, II i.'.C'bi. b. Rev. 723 (1071); Posner, The DcPunis
Case and the Constitutionality of Preferential Treatment of
Racial Minorities, 1071 Sup. Cl. Rev. 1. The discussion lias gone
beyond Ibe law reviews. I'.g., Sindtcr, Aur.uic.i in th k S eventies
at 2G2-320 (1077); f) Inzer, A itiiimative D isciiiuinatton (1075);
Cohen. Race and the Constitution, 220 Toe Nation 135 (107:7);
Wilhins, The Cuse Against Quotas, APE Diii.i.etin , March 1073,
al 1. In the words of Mr. dusliee Brennan: “ |P|cw constitulioual
questions in recent history have, stirred as much debate . . . . • '
DcPunis v. Odegaurd, IIG US. 312, 350 (1071) (dissentin;;
opinion).
"A similar claim was raised in the celebrated case of DcPunis
v. Odtgaard, 82 Wash. 2d 11, 507 l*.2d 11G0 (1073), and in
27
Needless to say, the question demands careful re
view j hut even cases involving broad constitutional
questions are grounded in a factual record and it is
there that the argument must begin.
I
THE SPECIAL ADMISSION PROGRAM VIOLATES ALLAN
DARKE'S RIGHT TO THE EQUAL PROTECTION OF THE
LAWS.
A. The Nature Of The Special Admission Projpram.
1. Thu program ia a racial quota.
There arc 100 places in the first year class at tho
Davis Medical School. Under normal circumstances,
Allan Bakke would he eligible to compete for all of
those places. In this case, however, petitioner has for
mally adopted a preferential racial quota and has set
aside 10 of the places for members of designated ra
cial and ethnic minority groups. In so doing, peti
tioner has prevented Bakke, solely because of his
race, from competing for the 10 quota places. Peti
tioner does not dispute' this fact and, under the
Alevy v. Downslulc Medical Center, 3!) N.Y.2d 32G, 318 N E 2d
537, 381 N.Y.S2d 82 (107G).
The subsequent history of the DcPunis cuse, ccrt. granted,
•111 U.S. 1038 (1873), vacated us moot, -116 U.S. 312 (1871), ia
well chronicled. See, e g., DcPunis Symposium, 75 Coluin. E.Kev.
•183 (1875).
The Alecy cn.se also suffered from procedural defects. In that
ease the court concluded that the plaintiff would not have been
admitted to the .school in question had there been no special
program. ‘*|T|hus,M said the New York Court of Appeals, “ the
petition should be dismissed." 38 N'.Y.2d at 338, 318 N.E.2d ut
517, 381 N.Y.S.2d ut 81.
There arc no such procedural problems in this case.
28
Imrdcn of proof rule announced liy the California
Supreme Court, concedes that it cannot refute Babko's
claim that he would have been admitted to the medi
cal school had there been no quota.3*
Because the quota reveals the true nature of the
special admission program, petitioner seeks to evade
this aspect of the case. Petitioner asserts that-there
is no formal allotment of places to specific groups,
hut rather an admission “ goal” which the school is
attempting to achieve." The record herein, however,
establishes beyond doubt that tlio special admission
program is in fact a racial quota. The Chairman of
the Admission Committee testified:
“ Q. [Mr. Colvin] It answers it, except that
I still have a curiosity, which you have perhaps
answered hut there was, correct me if I am wrong,
under the faculty resolution you would continue
to approve apd- process Task Force applications
until 16 had been accepted9
A. [Dr. Lowroy] That is correct, yes.
Q. In the year 1972-73, were any of the [pu
pils] admitted through the Task Force procedure
other than persons of minority ethnic identifi
cation ?
A. No.
’ “It. 115; Brief for Petitioner at 7-8. Tims llui California Su
preme Court modified ii.s opinion lo read, in part;
“ However, on up pool I he University lias conceded that it
cannot meet llm burden of proving Unit tlio special admission
program did uni result in Bahke’s exclusion. Therefore, he
is mlillrd to an order that ho he admitted lo die University.
. . . |T|he trial court is directed lo enter judgment order
ing Bahia1 lo he admitted.” 18 Cal .'Id at 25‘2b, 553 P 2d at
1172, 132 Cal. ft pit*, at 700.
’ •Brief for Petitioner at 11-17.
i
Q. Your answer would he the same for the cur
rent year?
A. That is correct.” (B. 168)
In administering its special admission program in
such a manner, petitioner has transcended any fair
interpretation of “ affirmative action", and has entered
a realm that is constitutionally forbidden. Although
Allan Bnkke was obviously qualified for the Davis
Medical School, petitioner’s quota arrangement ex
cluded him, because of his race alone, from 16 of the
100 places in the first year class. Petitioner’s quota
sought out persons, regardless of their lower qualifi
cations, who satisfied the school’s racial preference."
29
’ ’ Petitioner filled its quota hy seeking out persons with lower
qualifications than Bahhe, us revealed above in Uio churl and
accompanying discussion comparing Babko with regular udmiitces
und with those admitted through the speciul admission program.
Sice pp. 12-15, supra.
Several Amici claim that llakke cannot force the University
to rely on MOAT scores because the lest is ‘‘culturally biased”.
E.y., Brief for National Employment Law Project as Amiens
Curiae at If) 1C; Brief for I .aw .School Admission Council
as Amicus Curiae ut 10; Brief for IJ.C.L.A. Black Law Students
Association, ei ul.. as Amicus Curiae at 8 &. n.10; hid see Brief
of Association of Amcricun Law Schools us Amicus Curiae at
12-17.
llakke, however, has never contended that the school must use
the MOAT as a measure of ability. The California Supreme Court
certainly did not require its use. 18 Cal 3d at 55. Ii is petitioner
who has chosen to rely on the lest.
As lo thu claim of ‘‘cultural bias”, we note that Amici have
presented no evidentiary record in support of their position.
Both the trial court and the California Supreme Court had no
testimony or documentary evidence on the point.
Even former Juslieo Douglas, no great believer in so-called
aptitude tests, staled clearly in DePunis that:
“ The school can safely conclude that the applicant with
u score of 750 should lie admitted before one with u score
of 500. The problem is thut in many cases the choice
30
2. Petitioner's quota uproots individual constitutional freedoms and
replaces them with a destructive system of croup rights.
In attempting to justify the special admission pro
gram, petitioner lias posed several familiar arguments.
Petitioner’s initial thrust is that the program hero
challenged is the only way the University can achieve
its objectives. “ There is," says petitioner, “ . . . no
substitute for the use of race as a factor in admis
sions . . . Such a claim must he judged in terms
of the record. When that is done, there is hut one
conclusion; the record does not support petitioner.
There is simply no evideneo in this case that the
Davis Medical School has ever attempted any alter
native to the quota.
The school opened in 19GS. “ In short order the fac
ulty realized . . . that the existing admissions criteria
failed to allow access for any significant number of
minority students.’” !- To compensate, petitioner estab
lished a racial fpiota. Petitioner made no attempt to
convince the trial court that it could not meet its goals
will bo between G13 and G02 or 571 and 528." <J1C U.S. ut
32!) (dissenting opinion).
The situation here, with llalckc scoring in ibe 9Gth, 91th, 971b
and 72nd percentiles, and the special admillccs uierayino in the
Ifitli, 21th, 35th anil 33rd percentiles (1973) and in the 3 lib,
30th, 37tb and 18lh percentiles (1971), is far closer to llui
750-500 situation posed by former Justice Douglas than it is to
the GI3G02 situation, Dahlce is clearly better qualified. Paren-
Ibctieally, wo are bard pressed to understand bow a mathematics
or science question can be unfairly "culturally biased". .57c
I .inn. Vat Him ami the I‘evil id ion of tirades fa Law School 27
J. I .''gal Kdue. 293, 322-323 (1975); Hart £ Kraus, Major Research
L ports of the Law School . I (/mission Council, Apr. 1970; see. also
Sedb.-r, Racial Vre.fermcc, Reality amt The Constitution: liaU.e
v. R‘ (teals of the University of California, 17 Santa Clara L.Ucv.
329. 350 (1977); Brief of Association of American Law Schools
as Amicus Curiae, supra, at 12-17.
"Brief for Petitioner ut M.
"/(/. at 2.
31
through another, Jests discriminatory, program. The
plain tact is that petitioner has never tried any other
measure; nor does it show any inclination to do so.”
I ciitioncr s other rationalizations respecting the
merits of its program arc blind to the inevitable detri
ment suffered by society whenever racial preferences
exist. The mechanism of the quota has grave implica
tions; the evil transcends an individual case of favored
treatment, just us it goes beyond an individual case of
personal discrimination. It implies that rights to educa
tion, training and consequent career opportunities,
ideally open to all on an equal opportunity basis, will
now he officially categorized by group membership.
One would not become a doctor, lawyer, engineer or
accountant, hut a Ulack doctor, a Chicane lawyer,
an Asian engineer, or an American Indian accountant.
Admission to each profession or trade would he lim
ited according to the relative size of each ethnic group.
There is an insoluble question of policy. Is every
preferential racial ethnic quota lawful! I f so, then
presumably a 100% quota (or an exclusionary rule
close thereto) would be approved—and thus would
stand outside the arena of judicial scrutiny. If, on the
other hand, we arc to accept only those quotas which
are “ reasonably" dictated by the motives of their
authors, an opposite result follows: upon the adoption * I
nSee. Lavim.liy, A Moment of Truth on Racially llased Ad
missions. 3 I listings Const. L. Q. 879 (197G). According lo peli-
tinner, if llm judgment below is affirmed and the medical
sc bool cannot utilize a racial quota to govern its selection of
students, tin: school "predictably . . . would simply shut down
I it* I special admission I program |” rather than pursue alternate
measures that are leas discriminatory. Brief for rctilioner at I I.
32
of each quota, the process of judicial review would
begin anew, and the nation's courts would be called
upon endlessly to judge the eligibility of specific
minority groups, to apportion their shares of the
benefit in question, and to rationalize and adjudicate
the relative rights of each collective contestant. Upon
what valid basis could such questions be considered?
“ Once race is a starting point educators and
courts are immediately embroiled in competing
claims of different racial and ethnic groups that
would make difficult, manageable standards con
sistent with the Equal Protection Clause."
DeFunis v. Odegaunl, 41G U.S. 312, 333-331
(1974) (Douglas, J., dissenting).
There immediately arises the problem of numbers.
A quota in proportion to the national population? The
state population? The county or city population? If,
for example, the Japanese population o f the United
States were oife in 350, then would each professional
school class have only one member of that group (and
no more), given 350 places in the class? I f the stale
bad no significant Japanese population, then could no
Japanese qualify?"
’ ‘ Olio observer queries:
"What degree of minority representation is "rcnsoimbluJ'’ It
seems to depend on who is asked and on who makes (lie deci
sion, rather than on any consensus as to the proper base for
representation. . . . |I|n 1072, minority-student caucuses at
the Berkeley t,aw School (University of California) demanded,
in total, about half the entering places for minorities Each’
minority group pressed a different formula: blacks insisted
on a national proportional base, Chieanos on a California base
and Asian-Aioerieans on a local San Francisco Bay area base.
In sum, bow the base is determined in turn determines tbo
proportion of the scarce resource the group can claim, lienee
33
ihci-fi also n risen the question of numerous groups
not covered by petitioner's quota: Filipinos? Sa
moans? Ilawniians? Moroccans? Lebanese?" There
are also a wide variety of ethnic sub-groups contained
withip the so-called “ majority", who themselves have
been disadvantaged or discriminated against in the
past."
Should a preferential quota be extended beyond na
tional, ethnic, and racial groups to religious groups?
I f a religious group were deemed to be disadvantaged,
would its members have special rights? Conversely, if
it were deemed to bo “ not disadvantaged", would the
group be subject to legally approved discrimination?
For, given a limited number of opportunities, the
granting of a preference to include a favored class of
candidates surely implies a detriment— in the way of
exclusion—to individuals who are not so treated.
And who is a member of a racial group? Need one
be a “ full-blooded" American Indian to qualify? Or
is one grandparent sufficient? Or one great-grandpar-
Ihc process of deciding wlmt base lo use is typically highly
political and intensely disputed." Sindler, A mehicv in Tilt
S eventies at 300 (11)77).
" “ It is realistic lo expect many more [such groups), because
once this principle for the distribution of benefit uppears operative
each group is under some, pressure lo stake an early claim. The
pressure is greater when it cannot be known in what fraction(s)
Iho calm will lie eut, so that restraint by any group may result in
an ethnic apportionment on some continuum taking no account of
that group whatever." Cohen, Uticc and the Constitution "'0
Tiik Nation 135, 112 (11)75).
“ See Eavinsky, DeFunis o. Odiyuard: The "Fan Decision"
With a .Uissnyn, 75 Coluln E.Hev. 520, 527, n. 38; cf. llcycr v.
Nebraska, 202 II.S. 3!!G (1022). To paraphrase the .Supreme Court
of New Jersey, “ We are a |nationf of minorities." I.ige v. Town
of Montclair, 72 N.J. 5, 2-1, 3G7 A.2d 833, 813 (197G).
31
cal? Are wo to become involved in the testing of legal
lights according to blood lines?
The questions do not slop there. How extensive a
preference should he granted? In this ease it is six
teen places at the Davis Medical School. Why not
eight, or thirty-two, or sixty-four, or some other
number? What is the rational husis for any specific
percentage?
For how long is the preference to he continued?
And who shall decide when the preference is to he al
tered or concluded, and on what terms, and by what
authority?”
These questions illustrate the dilemmas inherent in
the quota system. While they might arise casc-by-case
in the context of heated litigation, their ultimate res
olution would lie beyond the prayer of any individual
claimant. We would be required to abandon the com
mitment to a society protective of individual achieve
ment and replace it with a system of rights based
upon racial or ethnic group membership.
The concept of individual freedom is based upon the
concept of individual achievement. The counter prin
ciple is the principle of ascribing rights to individuals
“ A peculiar aspect of petitioners program is lliat it lias not
been authorized by statute, local ordinance, executive order, or a
court of law. It lias been imposed, instead, by a group of medical
school faculty who decided on an oil hoc basis to apportion places
in the first year class according to race.
Petitioner contends that the faculty has “ independent discretion"
in administering the special admission ipmla Application for Slay
at It. The faculty, however, has set no time limit on the ipmla anil
during the eight years the program has been in operation, lues
made no change in the allotment of places. Indeed, the record
discloses no procedure for altering or ending this racial preference.
I
35
because of their ancestry, and that is tho quota princi
ple. It will he plainly destructive of a free society if
this Coui't, which heretofore has condemned, classifica
tions based on race, were to abandon that wisdom and
approve the quota system invoiced herein by peti
tioner. Indeed, as the California Supreme Court ob
served: “ No college admission policy in history has
been so thoroughly discredited. . . 18 Cal 3d at
G2.
3. There is a distinction between petitioner's quota and
the concept of “ailirmative action".
Several briefs amicus curiae urge the Court to vali
date petitioner’s program because it constitutes “ alfir-
mutive action”.” There is, however, a well-accepted
distinction between affirmative action and tho imposi
tion of a racial quota. In a broad sense, ailirmative ac
tion tdates to the positive effort undertaken by our
society (o integrate the races and provide all Amer
icans with equal opportunities. To this end, govern
ment and private industry have promoted a variety of
programs specially designed to identify, recruit, train
and give cxpciicuec to certain minority persons, A.
great many of these programs are governed by regula
tions promulgated pursuant to the Civil Rights Act of
l'Jfil.” As the Court noted in Griytjx v. Duke Power
0°., 101 U.S. ‘121 (1971), Die Act was intended to pro-
Brief for The Kntiomil Association of Minority Con-
tmelon, ct ul.. us Amicus Citrine at 13-27; Brief for Asian
American Bar Association of the Greater Bay Area us Amicus
Curiae at 21 23; Brief for the Bar Association of San Francisco
cl ul., as Amiens Curiae at JO 18; Brief for National Fund for
Minority Engineers as Amiens Curiae at 20-35.
1, i2 U S C. §§20()t)a-h; sec, e.ij., 15 C.F.lt. §§80.1 -80.13.
3G
hibit racial discrimination; it was not designed to
grant a racial preference to any person or group:
“ In short, the Act does not command that any
person he hired simply because he was formerly
the subject of discrimination, or because he is a
member of a minority group. Discriminatory
preference for any group, -minority or majority,
is precisely and only what Congress has pro
scribed. What is required by Congress is the i-e-
movnl of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial
or other impermissible classification.
# tt #
. . Congress has not commanded that the less
qualified be preferred over the hotter qualified
simply because of minority origins. Par from dis
paraging job qualifications ns such, Congress has
made such qualifications the controlling factor, so
that race, religion, nalionalitv, and sex become
irrelevant.not U.S. 424, 430-1, 430.
The aim of affirmative action is to enable persons
to advance in society on the basis of individual merit.
Affirmative action programs thus are designed to pre
pare persons to compete on an equal basis for jobs,
education and other social, cultural and economic op
portunities. Such programs do not involve the sub
stantive use of racial percentages because the pro
grams do not vest a “group right” to racial propor
tionality."
“ Indeed, Heel ion 703(j) of Tilt* VII of I lie 1!)GI Civil Sights
Act ( It* W.S O. §‘2000»i-21j 1) contains language which appears to
prohibit tin: use of preferential racial quotas;
“ Nothing contained in lids subchaplcr shall he interpreted
to require tiny employer . to grant preferential treatment
37
Although percentages and other statistics may play
a role in evaluating the effectiveness of an affirmative
action program, such evaluative devices should never
replace the program itself. For example, one guideline
for affirmative action states:
"Uso that quantitative measurement of progress
as a measurement of the affirmative action pro
grams, hut not as a substitute for such programs.
Measurement is one thing, rigid quotas, especially
those which would require the automatic inclu
sion of members of one group to the exclusion of
members of other groups, are a different thing.
to any individual or to any group because* of the race, color,
religion, sex, or national origin of such individual or group
on account of uu imbalance which may exist with respect to
the total number or percentage of persons of any race, color,
religion, sex, or national origin employed by any employer
. . . in comparison will* the total number or percentage of
'persons of such race, color, religion, sex, or national origin
in any community, Slate, section, or oilier area, or in the
available work force in uny community, State, section, or
other area."
An example of the legislative intent behind this provision is
found in the following reply by Senator Humphrey to the
charge that Title VII would allow quotas:
“ The Senator from Virginia is off on a rabbit hunt again,
and 1 am not going to follow him through the sagebrush,
hut f would like to make an offer to him. If the Senator
can llnd in Title VII—which starts on page 27, line 21, and
goes ail the way through page 50, line 25—any lunguago
which provides that an employer will have to hire on the
basis of pcrccnhuje or quota related to color, race, religion,
or national origin, I will start eating the pages one after
another, because it is not in there." 110 Coxa. lttc. 7120
(1981).
Title VI of the Act is to the same effect. llzzcll v. p'riday, 517
l'\2d 801 ( till Oir. 1077); Flanagan v. President and Directors of
Crorgelown College, 117 F.Sunp. 077 (D 0.0. 1070); Anderson v.
San Francisco l nifb'd School District, 357 I'.Supp. 218 IN I).
Cal. 1072); 15 O F It. §80.3. Sec also 110 Cong. life. 7207 (1081)
(remarks of Senator Clark). As pointed out above (note 2, supra),
Iiukko pleaded Title VI as a separate ground for relief and
I be trial court ruled in his favor as to dial aspect of die case
(Pel. Apps P, 0, pp. 117a l l 8u, 120a; It. 300, 301).
38
o
Exclusionary quotas arc based on the concept of
heredity and as such do a disservice to the prin
ciple of affirmative action. . . S tatem ent op
H um an R ights Commission op th e C ity and
County op S an P iungisco, March 20, 1972.” 11 * 13
111 lie judiciary tins recognized'the distinction between “ affirma
tive action" and the imposition of formal racial quota*. IS.i/.. Iluparl
v. Board of Higher Education, -120 P.Miinp. 10S7 (S.D.N.Y. 1U7G);
Flanagan v. President and Director of Ocorgctmvn College -117
F.Supp. 377 (D.D.C. PJ7G); Anderson v. San Francisco Unified
School District, 357 F.Supp. 218 (N.D.Cal. 11172); logo v Town
of Montclair 72 N'.J. 5, 3G7 A.2d 833 (1A7G); llroidriclc v
Lindsay, 3D N.Y.2d GII, 350 N.)3.2d 51)5, 385 N.Y.S.2d 2G5 (U17G).
Given tho serious dangers of the ipmta system, it is not
surprising that these courts have rejected the quota concept.
The judiciary hus permitted racial quotas oidy in the very
limited instance where it confronts a recalcitrant employer who,
although guilty of past racial discrimination, refuses to remedy
the wrong. The quotas imposed huve usually been of limited
duration, confined to a specific group of persons victimized by
tho defendant, and subject to ongoing judicial supervision. iS.g,
Curler v. Gallagher, 152 F.2d 315. modified on rth. cu bone 152
F.2d 327 (8lh Cir. 1072). Kven under such circumstances, not all
courls agree that rqifial quotas arc a proper remedy. I'.ij KI30C v
Sheet Metal Workers Local 28, 532 F.2d 821 (2d Cir. 107G);
Kirkland v. Department of Correctional Semens, 520 P 2il 120
rch. cii bone denied, 531 P.2d 6 (2d Cir. 1075), 'cert, denied 07
S.Ct. 73 (107G); Chance v. Hoard of Fsaminers, 531 F.2d 003 (2d
Cir. 107G); Commonwealth of Pennsylvania v. Glickman 370
F.Supp. 721 (W.l).Pa. 107-1); Harper v. Mayor und City Council
ot Baltimore, 350 F.Supp. 1187 (M.D.Md.), modified on other
grounds und ojj’d sub none, Harper v. Kloslcr, I8G F2d 1131 ( lib
Cir. 1073).
In this case, the situation is far different from that in eases
like Curler. Petitioner has denied consistently that it engaged in
previous racial discrimination. Petitioner's Ifeply Brief for Certi
orari al 0 7. Contrary to the claims of several" amici, the court
below found no evidence in tbc record jo indicate the University
hail discriminated airainst minority applicants in the past. IS Cal
3d at 50 GO. In addition, the instant quota has not been imposed
for it limited duration; llic University drsircs lo coiiliium lids
“ experiment" for “ a generation or two." Brief for Petitioner at
13 & n. 12. Finally, tbu University argues Dial its quota should
not lie subject to judicial review; such control would be “ stultify
ing." Id. at 7G. 1
30
Tito distinction between nffimintive action and the
use of a rigid percentage formula is important to tho
resolution of this ease. The question presented herein
is not so hvond as to involve the constitutionality of
affirmative action. The issue is more limited; it con
cents the legality of petitioner’s special admission pro
gram which, as noted, utilizes a racial quota to govern
entrance to professional school..
1. Tlia constitutionality of petitioner's quota is subject
to judicial review.
Petitioner seeks to minimize the Court’s power of
review by claiming that this case is u simple matter
of the medical school using its best judgment in an at
tempt to achieve educational policy objectives.” Peti
tioner asserts that ils admission procedure is so privi
leged and internal a process that the judiciary cannot
intrude therein except in “ rare instances when circum
stances compel it.’ ’” Once' the racial nature of peti
tioner's special program emerges, however, it becomes
clear tiiaL the Court has a proper role in reviewing
the constitutionality of that program.
Although petitioner does have wide discretion and
must he selective in choosing its students from among
the various persons who apply for admission, petition
er’s discretion ends where constitutional violations
begin. K.tj., Sweat! v. Painter, 339 U.S. 029 (1970).
This Court has consistently intervened in local educa
tional programs to enforce constitutional rights, par
ticularly tho right to equal protection. E.ej., McLaarin
“ Brief for Petitioner at 75-7G.
“ /</. at 7G.
40
v. Oklahoma State lleycnls, 339 U.S. 037 (1900);
Sipuel v. Board of It cy cuts, 332 U.S. 031 (1918);
Missouri ex ret. Gaines v. Canada, 305 U.S. 337 (1938).
The decision in Swunn v. Cliarlottc-Mecklcnbury
Board of Education, -102 U.S. 1 (1971) does not re
strict the Court’s power of review. In Swann, the
Court reviewed a District Court order designed to in
tegrate an elementary school system. The order called
for the busing of white students and included the use
of racial ratios. The Court found the order to be
proper. The case is distinguishable from this one be
cause “ . . . there is a crucial difference between the
policy suggested in Swann and that under consider
ation here: the Swann policy would impinge on no
person’s constitutional rights, because no one would be
excluded from u public school nnd no one has a right
to attend a segregated public school.’”*
Moreover, in^Snfann the Court clearly indicated that
the use of a racial ratio is to be “ no more than a
starting point . . . rather than an indexible require
ment." 102 U.S. at 25. The Court also cautioned:
“ I f we were to read the holding of the District Court
to require, as a matter of substantive constitutional
right, any particular degree of racial balance or
mixing, that approach woidd be disapproved and
we would be obliged to reverse.” 102 U.S. at 21; see
also Millikcn v. Bradley, 15 U.S.L.W. 1873, 1878-1879
(U.S. .Tune 27, 1977).
“ UePunis v. Odcgmml, -11C U.S. 312, 330, n lfi (Dougins, J.,
dissenting).
II
In the instant case, petitioner has imposed a fixed
racial quota nnd thereby has excluded Allan Bakke
from entering the Davis Medical School. The court
below properly recognized the clear distinction be
tween Swann nnd this case. 18 Cal.3d at 46.
In considering Allan Dakke’s claim of constitutional
violation, however, it should be borne in mind that he
does not contend that he has a constitutional right to'
attend medical school. His claim is the right not to he
discriminated against because of his race. That right
is founded in the Fourteenth Amendment and is sub
ject to the greatest judicial protection. -
It. The Special Admission Program Deprives Allan Bailee Of
Equal Protection.
1. The rights granted by the fourteenth Amendment are
personal In nature.
The Fourteenth Amendment provides that no state
shall deny to any person within its jurisdiction the
equal protection of the laws. Although this provision
was ratified by the states shortly after the Civil War
nnd at that time was interpreted as basically protect
ing Black persons," the doctrine of equal protection
is not bound by post-Civil War politics. As Mr. Jus
tice Douglas has observed, the Equal Protection
Clause is:
“ . . . not shackled to the political theory of u
particular era. . . . Notions of what constitutes
equal treatment for purposes of the Equal Protec
tion Clause do change.” Harper v. Viryiuia State
Board of Elections, 383 U.S. 663, 669 (1966).
"Sluuglqcr-l louse Cases, 83 U.S. (1G Wall.) 3G (1872).
42
Thus courts have construed the Equal Protection
Clause to protect individuals against stale imposed
racial discrimination in a variety of contexts. E.p.,
Yick.W o v. Hopkins, 118 U.S. 358 (1888); Oyama
v. California, 332 U.S. 633 (1918); Hernandez v.
Texas, 317 U.S. 475 (1951).”
While the protection afforded by the Fourteenth
Amendment has expanded greatly since that' provi
sion was added to the Constitution, certain basic
principles remain entrenched. One of these prin
ciples is that the rights granted by the Fourteenth
Amendment are personal in nature. This concept was
first enunciated over 90 years ago in the famous case
of Yick Wo v. Hopkins, supra, 118 U.S. 356. In
Ytck Wo, the injured party was entitled to equal
protection, not because he was a member of a group
preferred by the Fourteenth Amendment, but because
be was an individual, a person, who had been dis
criminated against because of his race. The Court
declared:
“ [The Fourteenth Amendment] says: ‘Nor shall
any Slate deprive any person of life, lib
erty, or property without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.’ These provisions
are universal in their application, to all persons
“ Tim Court lias also licit] that I lie Krptal Protection Clause
protects individuals from stale action which encroaches upon
certain "fundamental rights". Eg., Shapiro v. Thompson .'HII
L'.S. til8 (198!)) |right to travel]; Itevnolds v. Sims 377 U S
S.'ll nO(il) |right to vote]; firiflin v. Illinois, 35f U.S. J2 (1950)
I right to transcript in criminal appeal]; Skinner v Oklahoma
310 US. 535 (1912) (right to procreate].
43
within the territorial jurisdiction, without re
gard to any differences of race, of color, or of
nationality. . . 118 U.S. at 369.
More recent cases have not varied from this rule.
1‘J.jj., Sweutt v. Painter, supra, 339 U.S. 629 (1950);
McLuurin v. Oklahoma State Repeats, supra, 339 U.S.
637 (1950); Sipuel v. Hoard of Repents, supra, 332
U.S. 631 (1918); Missouri ex ret. Quines v. Can
ada, supra, 305 U.S. 337 (1938). Indeed, in the case
of Shelley v. Kraemer, 334 U.S. 1 (1918), this Court
explicitly stated the doctrine that underlies the Equal
Protection Clause. The Court said:
“ The rights created by the first section of the
Fourteenth Amendment are, by its terms, guar
anteed to the individual. The rights established
are personal rights.” 334 U.S. at 22 (emphasis
added).
As former Justice Douglas commented in DcFunis:
“ There is no superior person by constitutional
standards. A DeFunis who is white is entitled
to no advantage by reason of that fact; nor is
he subject to any disability, no matter what his
race or color. Whatever his race, he has a con
stitutional right to have his application consid
ered on its individual merits in a racially neutral
manner." DcFunis v. Odepaard, 416 U.S. 312,
337 (1971) (dissenting opinion).”
“ Justice Douglas also observed that: ,
“ A segregated admissions process creates suggestions of
stigma and caste no less Ilian u segregated classroom, arid in
the cud may produce that result dispute its contrary inten
tions. One other assumption must lie clearly disapproved: that
blacks or browns cannot make it on their individual merit.
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4G
i'. Viryima, 3S8 U.S. 1 (1967). Umlcv the atriet
scrutiny standard of review, a discriminatory classi
fication is unconstitutional, and hence illegal, unless
the government proves that it is strictly necessary to
promote a compctliuy stale interest. E.g., Shapiro v.
Thompson, 391 U.S. 018 (1909). As the Court noted
in Dunn v. Blum stein, -105 U.S. 3:10, 312-313 (1972):
“ In sum, durational residence laws must he
measured hy a strict equal protection test: they
are unconstitutional unless the Stale can demon
strate that such la'ws are ‘necessary to promote
a compelling governmental interest.’ . . .
“ It is not sufficient for the State to show that
durational residence requirements further a very
substantial stale interest. In pursuing that im
portant interest, the State cannot choose means
that unnecessarily burden or restrict consti
tutionally protected activity. Statutes affecting
constitutional fl ights must he drawn with ‘pre
cision’, NAACP i>. Ballon, 371 U.S. 115, 138
(1983); United States v. Bobcl, 389 U.S. 258, 285
(1987) and must he ‘ tailored’ to serve their legit
imate objectives. Shapiro v. Thompson, supra, at
831. And if there are other, reasonable ways
to achieve those goals with a lesser burden on
constitutionally protected activity, a State may
not choose the way of greater interference. I f it'
acts at all, il must choose ‘less drastic means.’
Sliellon v. Tucker, 361 U.S. -179, 188 (I960).’’
The most onerous form of official discrimination is
that which is based upon race. McLaughlin v. Florida,
379 U.S. 181 (1961). For that reason, racial dis
47
crimination has always been subject to the most rigid
judicial scrutiny. F.g., Kramer a. Union Free School
District, 395 U.S. 621, 628, n. 9 (I960); Harper u.
Virginia Slate Board of Elections, 383 U.S. 663, 668
(1966) j Tukahashi v. Fish tfc Game Commission, 331
U.S. -110, 420 (1918); Oyama v. California, 332 U.S.
633, 610 (1918).
Nearly a generation ago, this Court ruled that the
exclusion of a black applicant from a state university
solely because of his race was a violation of the Equal
Protection Clause. Sweatt v. Fainter, supra, 339 U.S.
629 (1950). Ever since, the unvaried holding of this
Court’s decisions and the teaching of contemporary
history have been the same: discrimination on the
basis of race is illegal, immoral, unconstitutional,
inherently wrong and destructive of a democratic
society.
“ Over the yearn, this court has consistently re
pudiated ‘ [distinctions between citizens solely
because of their ancestry’ as being ‘odious to a
free people whose institutions are founded upon
the doctrine of equality.” ’ Loving v. Virginia,
supra, 388 U.S. 1, 11 (1967) ; see also .McLaughlin
v. Florida, supra, 379 U.S. 181 (1961).
In the present controversy, petitioner asks that
these lessons be unlearned. Petitioner maintains that
equal protection is not a fundamental right, hut
rather, ‘ ‘ only a question of whose ox is gored.” See
Ilickel, Tnr. Mokauty O f Consent at 133 (1975).
In cases involving laws that discriminate against “ dis
crete and insular" minority groups, the University
48
would label the discrimination “ invidious” and lmve
courts apply the traditional strict scrutiny test. But,
says petitioner, when racial discrimination benefits
minorities, even though simultaneous!)' penalizing
non-minority persons, a different- rule should govern;
such “ benign” discrimination should be upheld if it
is rationally related to a legitimate legislative ob
jective.
The instant quota, however, is by its very nature
“ invidious”. As one commentator notes:
“ Invidious distinctions are those tending to excite
ill will, or envy, those likely to be viewed as
unfair—and that is what racial classifications
arc likely to do and be when used as instruments
for the apportionment of goods or opportuni
ties.” Cohen, Face mid llic Constitution, 220 Tan
Nation* 135, MO (1975).
Indeed, no precedent supports petitioner’s view.41
The Equal Protection Clause does not expand and
contract depending upon the purpose behind racial
' ’ Petitioner's reliance on Ivatzonhach v. Morgan. 381 US (ill
( infill). Lull v. Nichols. 414 U.S. f»«3 (107 l>. and .Morion v. Mnn-
cari, 417 ll.S. 535 (1074), is misplaced.
Neither Katiciibuch. nor Luu involved a Used preferential racial
quota. Indeed, the classifications drawn in those eases were not
based solely upon race, but were directed to the lanjpiago diffi
culties of the persons in question. Moreover, the benefits that were
extended in those cases did not result in anyone being deprived of
his vote (liuUeiibiich) or his place, in a public school (f.i/u).
In Minion, Ilui Court considered an employment preference
granted to "qualified Indians” by the Iliircaii of Indian Affairs
(IMA). The Court expressly staled that it did not view the case
let involving racial discrimination or a racial preference. Thu Court
upheld the preference at issue, emphasizing the unique role ac
corded by the Constitution to the federal government in dealing
49
d
discrimination. I f it did, constitutional guarantees
would “ acquire an accord ionlike quality.” DcFunis
v. Odeyaard, 416 U.S. 312, 343 (1974) (Douglas, .1.,
dissenting). In DcFunis, the Washington Supreme
Court rejected a similar contention:
“ . . . [T]he minority admissions policy is certainly
not benign with respect to nonminority students
who are displaced by it . . . .
“ The burden is upon the law school to show that
its consideration of race in admitting students is
necessary to the accomplishment of a compelling
state interest.” DcFunis v. Odeyaard, 62 Waslt.2d
11, 32, 507 l1.2d, 1169, 1182 (1973), vacated us
moot, 116 U.S. 312 (1974).
Despite the obvious adverse effect of the special
admission program upon Bakke, the University claims
that he needs no judicial protection. Petitioner says
that “ [l]hc injury to [Bakke] is an isolated incident
in his life.""1 Petitioner asserts that Bakke, as a mcm-
witli Indian tribes. The Court compared the preference to the
constitutional requirement that a Senator be a resident of the
stale from which be is elected:
"The preference, ns upplied, is granted to Indians not as a
discrete racial group, hut, rather, ns members of quasi
sovereign tribal entities whose lives and activities are gov
erned by the TUA in a unique fashion. . . . In the sense that
there is no other group of people favored in this manner,
the legal status of the li 1A is truly sin y c n c r i s 417 U.S. ut
551.
J.'or a discussion of these cases and the problems presented by
Hat racial preferences, see Noviek &. Ml is, Equal Opportunity in
/■ .'iliitnlitnitil unit Employment Selcctio u, 32 A Mimic an Psyciioi.o-
ti i.st 300 (1077).
' ‘ Uriel' for Petitioner at 72; see ijciiimlhj hi. at (1-73. This
argument, as well as petitioner's claim that the present quota
system is only temporary in nature, ignores reality. Petitioner
has placed no time limit on the quota and admits (perhaps
50
her of Uic so-called majority, lias “ lifc-or-dcath control
over (ho special-admissions program."” The record is
totally barren of any evidence to support such an
argument. Bakke certainly has not chosen to dis
criminate aguinst himself. It is a state operated
medical school which has made that decision. To say
that Allan Bakke should resort to the political process
for protection is unrealistic insofar as Bakke the
individual is concerned, and is wrong insofar as the
Constitution is concerned.
Allan Bakke has brought this lawsuit on his own
behalf. lie claims membership in no group, and repre
sents no class of litigants. He desires to be a physician
and he seeks enrollment at the Davis Medical School,
lie asks only that his application be considered in a
racially neutral manner. To tell him at this time that
he should stop suing and start campaigning is to tell
him to forget eplirely about a career in medicine.
Moreover, the University’s depiction of “ Respond-
ent’s group” as a uni tied block possessing immense
indirectly) that Allan Bakke must relinquish his rights and the
position he has earned for “a generation or two". Brief for
Pctitioncr at 12-id & n. 53; sec ulsit Itl. at CO, 7!).
Allan Bakke is now 37 years old. He can hardly afford to wait
as Ion;; as petitioner's “ plan" ealls for. The instant quota, if
upheld, will force him to wholly abandon career objectives which
lie has actively pursued for a jjood portion of his life. As this
Court slated in Missouri ex ref. Caines v. Canada, 305 IJ.S. 337,
352 ( 193U); “ . . . (W )e cannot regard the discrimination as ex
cused by what is called il-s temporary character.”
The argument that Bakke could have sou;;hl admission to
another medical school (Brief of NAAOP as Amiens Curiae at
Ifi 17) was also rejected in (luinis,- supra, 305 U.S. at 350.
"Brief for Petitioner at 73.
51
political power" is at odds with reality. As one writer
so aptly stales:
“ The argument that n racial classification which
discriminates against white people is not in
herently suspect implies that the white majority
is monolithic and so politically powerful as not
to require the constitutional safeguards afforded
minority racial groups. But the white majority
is pluralistic, containing within itself n multitude
of religious and ethnic minorities—Catholiest
Jews, Italians, Irish, Poles—and many others
who are vulnerable to prejudice and who to this
day suffer the effects of past discrimination. Such
groups have only recently begun to enjoy the
benefits of a free society and should not he ex
posed to new discriminatory bars, even if they
are raised in the cause of compensation to certain
racial minorities for past inequities.” Lavinsky,
DeFunis a. Odeyuurd: The “ Non-Decision” With-
it Message, 75 Colum.L.Bev. 520, 527 (1075).
It is the judiciary, and not the ballot box, which
is the final arbiter of constitutional rights. This
Court’s holding in Went Virginia State Hoard of
Induration r. Barnette, 319 U.S. 021 (1913), is
squarely on point:
“ One’s right to life, liberty and property, to free
speech, a free press, freedom of worship and
assembly, and other fundamental rights may not
he submitted to vote; they depend on the outcome
of no elections.” 319 U.S. at 038."
"This principle clearly applies lo the right to equal prolecliim:
“ No plebiscite can legalize an unjust discrimination." Hall v.
Si. Helena l'arisb School Board, 197 P.Supp. (HD, C59 (B.B.ba.
52
Thus, when an individual such ns Allan Ha Idee is
discriminated against because of his race, ho must
not he deprived of judicial protection because he is a
member of the “ majority”.** Under the Fourteenth
Amendment, racial discrimination is inherently sus
pect regardless of the purpose of the discriminator
or the identity of the person victimized. It has always
been subject to strict judicial scrutiny and is illegal
unless the government demonstrates that the end
sought to be achieved is a compelliny slate interest
and, further, Unit the discrimination employed is
strictly necessary to promote such an objective.
1951), lift'd per curiam, 358 IIS. 515 (1052). See uho Boson v.
Itippy, 2B5 F.2d 43, 15 (5th Cir. 1000).
“ Petitioner, relying on United Jewish Organizations v. Carey, 07
S.Ct. 005 (1077), argues that the special admission program does
not exceed the hounds of constitutionality because it docs not
“ fence out" while applicants from the medical school. The argu
ment cannot withstand analysis. Curcij involved the validity of
a redistricting plan adopted by local authorities pursuant to the
Voting Uighls Act of 10G5 (12 U.S.O. §1073). The. plan was
challenged on the ground that it violated a particular ciwimuniti/'s
right to vole and he represented in the legislature. In up
holding the plan, thu Court specifically found that the plaintiff
group would he neither disenfranchised nor unrepresented as a
result of the rcdixlrieting. 07 S.Ct. at 1010.
In this case, however, the rights ul stake arc far different.
Allan Hakke docs not seek to elect someone to represent him in
the Davis Medical School. lie is associated with no group. He
desires to personally puisne his career objectives and he has,
indeed, been “ fenced out” of doing so hy petitioner's quota.
53
n
THE CALIFORNIA SUPREME COURT CORRECTLY
DECIDED THIS CASE.
A. The Court Below Properly Considered This Action To Be A
Case Of Racial Discrimination.
The California Supreme Court decided this ease by
properly applying the basic concepts of equal pro
tection outlined above. The court belotv readily per
ceived this action as a case of racial discrimination,
“ it is plain,” said tbe court, “ that tbe special ad
mission program denies admission to some white
applicants solely because of their race." 18 Cal.3d at
•17 (footnote omitted). Tbe court below also found,
as did the trial court, that according to tbe Uni
versity’s own standards, Allan Bakke was better
qualified than persons admitted under the program.
“ Tbe question we must decide is whether the rejection
of better qualified applicants on racial grounds is
constitutional." IB On 1.3d at 18."
B. The Court Belov/ Correctly Applied The Appropriate Ju
dicial Standards In Judging the Constitutionality of Peti
tioner's Quota. .
In reaching tbe constitutional question, tbe Cali
fornia Supreme Court posed two inquiries. First,
what standard of judicial review is applicable to this
case and, second, does tbe program at issue meet tbe
requirements of Ibe applicable test ? 18 Cal.3d at JO.
As lo Ibe first inquiry, lbe court below recognized
that tbe rights granted by tbe Fourteenth Amend
ment are personal rights and are guaranteed to in-
“ For the trial court finding, see It. 3B8.
54
dividunls, not groups. 18 Cal.3d at 47 &, n.ll, and 51.
The court further noted that:
. . classification by race is subject to strict
scrutiny, at least where the classification results
in detriment to a person because of his race. In
the case of such a racial classification, not only
must the purpose of the classification serve a
‘compelling state interest,’ hut it must he demon
strated hy rigid scrutiny that there arc no reason
able ways to achieve the state’s goals hy means
which impose a lesser limitation on the rights of
the group disadvantaged hy the classification.
(U.g., Dunn v. Jllumstein (1072) 405 U.S. 330,
312-343; Loving v. Virginia (1907 ) 388 U.S. 1, 11;
McLaughlin v. Florida (1901) 379 U.S. 181, 192-
193.)” 18 Cal.3d at 49.
In adopting this standard, the California Supreme
Court flatly rejected petitioner’s argument that racial
discrimination'' which is designed to aid minority
groups, hut which at the same time injures persons
such as liakkc, is not subject to “ strict scrutiny":
. . we do not hesitate to reject the notion
that racial discrimination may he more easily
justified against one race than another, nor can
we permit the validity of such discrimination to
he determined hy a mere census count of the
races.” 18 Cal.3d at 50 (footnote omitted).
The court below then arrived at the critical question
of whether petitioner's special admission program
met flu: two requirements of the strict scrutiny test—
(1) the presence of a “ compelling stale interest" and
(2) a means that is strictly necessary to promote such
55
an interest. It should he noted that “ compelling slate
interest” in this instance is not synonymous with the
general recognition of an important soeiul goal, hut
rather, with that degree of importance which would
justify overcoming our traditional abhorrence of
racial discrimination."
On this issue the parties offered conflicting argu
ments. In support of the quotu, the University asserted
an interest in integrating the Davis Medical School
and the medical profession. The University also
claimed it was attempting to establish role models for
younger minority persons and that the program would
produce minority doctors who w'ould bring increased
health care to minority communities. The University
further asserted that minority patients would have
greater rapport with doctors of their own race. 18
Cal.3d at 52-53.
liakkc, on the other hand, argued that no evidence
in the record showed that any of the school's goals
“ Many of the briefs amicus curiae iu support of petitioner
ignore lias aspect of the “ compelling state interest’' concept, t ig ,
Brief of (‘ iicrlo Iticun Ecgal Defense anil Education Fund and
Aspiro of America as Amicus Curiue at 15-23; Brief of the
Association of American Daw Schools us Amicus Curiae at 3!) 02.
This C'ouil has fpund a basis for sanctioning racial discrimina
tion in only two cuscs. fn Korcmalsu v. United States, 323 U.S.
211 (1511) and iu lliruhayushi v. United Status, 320 U.S. 81
(1313), the Court upheld military exclusion und curfew orders
directed against American citizens of Japanese origin. In view
of the widespread criticism of these cases, it is not clear that
even the threat of invusion, espionage, and sabotage would justify
these racially discriminatory orders were they to be reviewed by
a present day court. Six Hobson v. Hansen, 2(i!) E.Supp. -101,
507, n.]37 (D.D.O. 1370); Boston-, The Japancse-American Cases
—A Disaster, 51 Yale 1».J. 183 (1315); W. llcan, Cai.iioiinia: An
Inti araiiini: Histohv (1308) at 130-130.
wore oonslitutionally “ compelling". Babko furl her
argued that the Fourteenth Aiucnduicnt does not ein-
body (lie concept that societal advancement .shall bu
based upon racial proportionality; that there is no
guarantee that any individual or group will he repre
sented in a given professional school or in a given
profession. The key to equal protection of the laws,
Baklce argued, is that no one—himself included—
should be denied the opportunity to advance because of
race. Of. Hughes v. Superior Court, 339 U.S. -ICO, Ki t
(1950).**
Baklce pointed out that the only evidence in support
of the program was the Declaration of George II.
Lowrcy, M.D.,' Chairman of the Admission Com
mittee, and that nowhere in the declaration did Dr.
Lowrey demonstrate the “ compelling** nature of the
University’s goals.**
S
5fi .
“ la Iluylies, this Court upheld the right of a statu to Imn
picketing, the purpose of which was to compel a store to hire
blacks in proportion to Pluck customers. The Court said: “ To
deny to California the right to ban picketing in the circumstances
of this case would mean that there could he no prohibition of the
pressure of picketing to secure proportional employment on
ancestral grounds of Hungarians in Cleveland, of Poles in huffulo,
of> Hermans in Milwaukee, of Portuguese in New Ilcdford, of
Mexicans in Sun Antonio, of the numerous minority groups in
New York, and so on throughout the whole gamut of racial and
religious concentrations in vurions cities." lift!) U.S. Kit), -IGl.
The highest court of California was, and still is. of the same
opinion. Hughes v. Superior Court, 33 Cal.3d fiat) ( 10IS); lt>
Cal 3d at G3, n.33.
“ Nee It. 01-72. Ur. Lowrey noted only that “ |t)he diversity
which comes to the medical school und the profession us u result
of having students und doctors from minority backgrounds bene
fits both minorities and non-minorities." It. (ill. He slated that
i
The California Supreme Court found it unneces
sary to resolve the differences between the parties on
this point. The court below assumed arguendo that
certain of the University’s objectives were compelling
and then proceeded to consider whether petitioner had
satisfied its burden of demonstrating that the instant
racial quota was strictly necessary to promote such
goals.**
57
non-minority persons "will bo influenced und enriched" by their
contact with the special admittccs. Id.
Itegarding the overall effect of such “ benefits” und "influences",
Ur. Lowrcy offered only his personal speculation. lie noted that
non-minority persons "mug be enlisted in meeting tbe (medical
needs) of the minority community." Id. (emphasis udded). lie
cited no data to support this hypothesis.
Regarding the furnishing of minority physicians who will uid
in bringing increased medical care to the various minority com
munities, Ur. Lowrcy stuted that minority physicians ure host
fitted to treat patients of their particular race and concluded,
“ it is hoped that muny of them will return to practice medicine
in ureas which ure presently in great need of doctors". Id.
(emphasis added). Aguin, he cited no supporting dutu.
Indeed, Ur. Lowrey seemed uncertain uboul the validity of
the program. "It may" work to integrate the school und the
profession; "it is hoped" that the quota will uid in bettering
health care in minority communities. Ur. Lowrey’s personal
views are the only "evidence" tendered by tho University in sup
port of the quota.
‘ -The court below llully rejected certain of petitioner's claims,
such as the University's assertion that minority individuals would
have a greater rapport with doctors of their own race und that
lllucU doctors would have a greater interest in treating diseases
prevalent among Hlaclts. "The record contains no evidence to
justify the parochialism implicit in the latter assertion; and as to
the former, we cite us eloquent refutation to rueial exclusivity the
comment of Justice Douglas in his dissenting opinion in DeFunis:
'The Kquul Protection L'lause commands the elimination of racial
barriers, not their creation in order to satisfy our theory as to
how society ought to be organized. The purpose of the University
of Washington cannot bo to produce black lawyers for blacks,
Polish lawyers for Poles. Jewish lawyers for Jews, Irish lawyers
for Irish. It should bo to produce good lawyers for Amcricuna.
. . 18 Cul.3d at 53.
58
The court found that petitioner failed to carry this
burden:
“ We may assume arguendo that the remaining
objectives which the University seeks to achieve
by the special admission program meet the exact
ing standards required to uphold the validity of
a racial classification insofar as they establish
a compelling governmental interest. Nevertheless,
we are not convinced that the University has met
its burden of demonstrating that the basic goals
of the program cannot be substantially achieved
by means less detrimental to the rights of the
majority.
The two major aims of the University are to
integrate the student body and to improve medical
care for minorities. In our view, the University
has not established that a program which dis
criminates against white applicants because of
their race is necessary to achieve either of these
goals.” 18 Cal.3d at 53”
s/ O
In this context, the state supreme court noted that
there was no prior history of racial discrimination
at the Davis Medical School. Relying upon this Court’s
recent decision in Washington o. Davis, 12G U.S. 229
“ The Washington Supreme Court applied the same lost in
Dcl’ums. 82 Waslt.2d 11, 32. 507 P.2.1 11G9, 1182 (1073). In
A levy v. llownslatc Medical Center. 30 N.Y.2d 32C 3|8 NT13 ‘*<1
537. 381 N.Y.S.2d 82 (107G), the New York Court of Appcala
indicated in dicta that it would apply a similar rule. The Alcvij
court noted that:
“ . • • |W)here preference policies arc indulged, the indul
gent must he ore pa red to defend them. . . .
. . (Tjo he |constitutional), it must he shown that a
substantial interest underlies the policy and practice and,
further, that no nonraeial. or less oh.jeclioiudile racial, i lassi-
ficnlions will serve tho same purpose.” 30 N.V.2d at 33G 337
318 N.Ji.2d at 51G. 381 N.Y.S.2d at 00.
(1976), the. court below rejected tbe arguntent of
several amici that tbe University bad previously ex
cluded minority students. “The fuct that minorities
are underrepresented at the University would not
suffice to support a determination that the University
had discriminated aguinst minorities in the past.” 18
Cal.3d at 59; see generally Id. at 57-60; see also
Dayton Hoard of Education v. Brinkman, 45
U.S.L.W. 1910, 1913 (U.S. June 27, 1977). Peti
tioner itself makes tho point more forcefully:
“ While there may be some point in arguing
intentional discrimination where it has existed,
in this case it is simply not possible. There has
been no intentional discrimination by the Davis
Medical School., Tbe school opened only eight
years ago, arid veiy soon thereafter began to
fashion the Task Force program.” Petitioner’s
Reply Brief for Certiorari at 6.
The California Supreme Court also commented on
possible alternatives to tbe quota. The examples were
not ottered as guaranteed solutions, but were presented
to demonstrate that the University had failed to carry
its burden of proof. “ So far as the record discloses,
the University has not considered the adoption of
these or other non-racial alternatives to the special ad
mission program.” 18 Cal.3d at 55 (emphasis added).*'
‘ MYiitioncr misses llio point when it argues dial die instant
quota is Ilia most direct means In achieve die- school's goul.s. The
most direct means are not always constitutional, particularly
when they negate constitutionally protected rights Putin v
Hlumslciii, 105 11.8. 330. 812-313 (1072); Slmpiro v. Thompson
301 U.S. G18, G31 (19G0); Shelton v. Tucker, 3G1 U S 470
488 (10GO).
GO
0. The Decision Below Docs Not Require A Return To "All
While" Professional Schools.
Petitioner blandly asserts that the court below lias
sanctioned llio abandonment of minority students and
lias called for virtually “ all-white professional schools
at the major universities of this country." Petition
for Certiorari at 4." Petitioner, however, has at
tempted no means other than the instant racial quota
to achieve its stated goals. It claims thnt if the quota
is deemed unconstitutional, it will be unable to find
.another solution and thut its medical school will be
closed to minority enrollment.** In so arguing, Peti
tioner grossly misconstrues the opinion of the Cali
fornia Supreme Court.
The University has neither * been empowered to
discriminate against minority persons, nor constrained
to judge applicants for admission solely on the basis
of objective criteria such as grades and test scores.
The court below encouraged the University to use
flexible standards in its admission procedure and
stated clearly that the University could, and should,
consider the “ disadvantaged" situations of its ap
plicants. 18 Cal.3d at 55. The consideration of such
factors as the economic or educational deprivation of
a medical school applicant is not constitutionally
infirm; but its greater merit is that it directly relates
to the problem of overcoming prior personal hnrd-
also llrief for Petitioner at 13 17; Petitioner’s lteplv
Brief for Certiorari at 9.
“ Accordin'; to petitioner, if the judgment below is affirmed,
tho medical school “ . . . would simply shut down (ils| special’
admission (program).” Brief for Petitioner at H.
Gt
ship.*® The only limitation placed on tho University
is one consistent with the Constitution and previous
decisions of this Court; namely, that the University
cannot employ race as the yardstick, or racial dis
crimination as the mechanism, for deciding who may
attend the Davis Medical School. Surely it is not
credible that so great a University cannot summon
the will fo engage in the experimentation urged by
California decision or, if so inclined, would lack the
ingenuity and resources to pursue new alternatives
in a constructive and successful manner.
D. The Court Below Rejected the Use of a Racial Quota to
Govern Admission to Professional School.
The California Supreme Court was sensitive to the
complicated nature of this case and exercised great
care in reviewing the conflicting constitutional argu
ments. It was only after careful analysis that the
court below rejected jietilioner’s quota system.
“ . . . [Tjlie ends sought by such programs are
clearly just if the benefit to minorities is viewed
jn isolation. But there are more forceful policy
reasons against preferential admissions based on
race. . . . Perhaps most important, tl|e principle
‘ “The University apparently did not consider, for example, the
implementation of a racially neutral pre-application program
designed to allow potential applicants who ore disadvunta|;cd
the opportunity to acquire the various shills required for a
medical education. Brief for Petitioner ut 28 -17, Of. Nillihcn v
Bradley, 15 U.S.LAY. 1877. 1878 7879 (US. ^uno 27, 1977).
With respect to an admission proqrum which is based, in part,
upon the concept of allowing applicants credit for ovcrcomiiq;
“ disadvantage”, see Law Scuooi, Admissions; A Itcroiir to tiic
Ai.miM(Ali), 123 Cono. Ri:c. 113539 (daily cd. Apr. 25, 1977).
'flic report was presented by Peter J. I.iutonrus, Dean of the
Temple University School of Low.
62
that the Constitution sanctions racial discrimina
tion against a race—any race—is a dangerous
concept fraught with potential for misuse in
situations which involve far less laudable objec
tives tlum are manifest in the present case.
. . No college admission policy in history
has been so thoroughly discredited in contempo
rary times as the- use of racial percentages.
Originated as a means of exclusion of racial and
religious minorities from higher education, a
quota becomes no less offensive when it serves to
exclude a racial majority. ‘ No form of discrim
ination should be opposed more vigorously than
the quota system.’ (McWilliams, A Mask Foil
Pmvii-EQE (1918) p. 238.)
“ To uphold the University would call for the
sacrifice of principle for the sake of dubious
expediency and would represent u retreat in the
struggle to assure that each man and woman shall
he judged on the basis of individual merit alone,
a struggle which has only lately achieved success
in removing legal barriers to racial equality.” 18
Cal.3d at 81-03 (footnotes omitted).*1
The conclusions of the court below should not be
taken lightly. They reflect a reasoned application of
•'A growing number of courts around the country have recently
expressed the same view. E.u.. Ilupurt v. Hoard of Higher Educa
tion. 120 E.Snpp. 1087 (S.H.N'.Y. 1!)7G); Flanagan v. President
and Directors of Georgetown College, 117 F.Supp. 377 (IVD.fi.
10701; Iiigo v. Town of Montclair. 72 N.J. 5, 307 A .2d 833 (1070);
ltroidrick v. J.indsay, 30 N.V L’d fill. 350 N. 13.28 505. 385 X V.8.
2d 205 (1070); cf. State Department of Administration v. De
partment of Industry, Labor and Human Delations, 70 \Vis.2d
252 N'.\V.2d 353 (1077). It is interesting to note that the
Washington Supreme Court itself recently indicated that racial
preferences are not proper. .SYr Puget Sound Gilincitcrs Ass'n v.
Moos, 88 Wash.2d 077, ..... l’ .2d ..... (1077).
83
the previous decisions of this Court, und deal with
the problems presented by this case in a considered,
practical and wise manner.
CONCLUSION
Allan Bakke’a strong academic record, his profes
sional engineering experience, his volunteer service in
a hospital emergency room, his extraordinary efforts
to complete a •pre-medical education and other rele
vant factors demonstrate his unquestioned aptitude
and strong personal desire to become a physician.
Petitioner’s racial quola, however, prevented Bakke
from competing for 16 of the 100 places at llte Davis
Medical School and, as a result, burred him—by
reason of race alone—from attending the school. Pe
titioner through this unlawful discrimination violated
Bakke’a right to the equal protection of the laws and
on the record of this case it is clear that Bakke was
entitled io an order directing his admission.
The California Supreme Court recognized, and
rightly condemned, the evil inherent in petitioner’s
quola system. At llte same time, the court below
granted to petitioner the broad discretion lo search
for alternate measures that do not violate constitu
tional rights. Such a decision is a sensitive response
lo this complicated issue and, given the grave const i-
tnlional implications of a preferential racial quota
system, represents the sound exercise of judicial
wisdom.
64
For these and the other reasons set forth in tins brief,
the judgment of the Supreme Court of California
should ho affirmed.
Respectfully submitted,
R eynolo II. Colvin,
Roijeiit D. Links,
J a cons, R la xckun n o no, May & Colvin,
Attorneys for Respondent.
Dated, August 2, J977.
J t t H it’ g ’n p r i 'm p (E m ir t
O F T H E
lluitrb t̂ateii
O ctober T e rm , 1977
N o . 7 6 - 8 1 1
T h e R F.GF.NTS OF T H E U N IV E R S I T Y OF C A L IF O R N IA ,
Petitioner.
vs.
A llan 71aktce.
Respondent.
SUPPLEMENTAL BRIEF OF RESPONDENT REGARDING
APPLICATION OF TITLE VI OF THE
CIVIL RIGHTS ACT OF 1061
R eynold IT. C olvin .
R obert D. Im n k s ,
J acobs, B l a n c k e n b ir g , M ay & C olvin ,
I I I Sutter Street, Suite 1800.
Sen Francisco, Ca li fornia 94 1 0 4 .
Telephone: (4 1 5 ) 3 9 2 -5164,
Attornei/s for Respond< id.
Subject Index
Page
Statutory Provision Involved ...................................................... 1
Introduction and Summary of Argument ............................... 1
Argument ........................................................................................ 4
I.
The Title VI Issue is Properly Before the C o u r t .......... 4
II.
Bakke Has a Private Right of Action Under Title VI .. 11
III.
Bakke Was Xot Required to Resort to IIEW Administra
tive Procedures Prior to Commencing This Litigation 16
IV.
The Special Admission Program Violates Title VI .......... 23
A. The program violates the plain language of
Section JOOOd .............................................................. 23
B. The legislative history of the Civil Rights Act
of 1664 indicates that racial preference programs
such as petitioner’s quota are illegal ....................... 26
C. The IIEW Title VI regulations themselves pro
hibit rack'd quotas .......................................... 31
D. Recent judicial decisions support the conclusion
that petitioner's special admission program is
unlawful ........................................................................ 36
Conclusion ......................................................................................... 3S
Table of Authorities Cited
Cases Pages
v- ,Sa“ Francisco Unified School District 357
l - MiPP- MS (X.D.Uul. 10721 ...
Ashusm.h.r v. Tennessee Valley Authority’ 207 r S. 233 S
.................................................................................. 10
Bril v. Hood, 327 U.S. (17S (1040)
Black v. Cutter Laboratories. 351 US 20' (JOlOi .......... o
Bihssicr Parish School Board v. Lemon. 370 U'*d
Cir.), cert, denied, :)XS U.S. 011 (1907) , 0
Brennan v. Aniheim & Xccly, Inc., 410 U.S.'oid'« 1073)' ' 9
Cardinale v. Louisiana. 304 U.S. 437 ( 1000)
Castaneda, v. Partida. 430 U.S. 132 ( 1077 , .................. o-
Chemehuevi Tribe of Indians v. FPC, 420 U.S. 305 (1975) 2,3
Coit v. Ash, 4ie U.S. GO (1975) ................ I0 10
Dandridge v. Williams, 397 U.S. 471 (1970) n on
Dixon v. United States, 3S1 U.S. 74 (19G5) . . " " " " ........."35
Espinoza v. Farah 11% Co., 414 U.S. SG (1973) 35
Far East Conference v. United States. 342 U.S. 570 (195D o0
Fashnacht v. Frank, 00 U.S. (23 Wall.) 410 11875, «
Fa\ v. Noia. 372 L.8. 301 ( 1!)G3) ...... *' 6
Fox Film Corp. v. nil. n. 200 US 207 (FUl)..............
X Of C c i n U l k4U 1. Sapp. 3m (D.D.C. 1970) . „ 0_
Ceneral Electric Co. v. Gilbert, 429 U.S. U>5 (19701 o-
0 "ouard v. United States. 32s' U.S. 01 (1940) ........ Z'!
Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . " ......
Hcrh v. Pitcairn, 324 U.S. 117 (1944) .................... 0
International Harvester Co. v. Missouri. 234 U.S. 199 (101 t, o
Irvine v. Caliiornia, 347 L'.S. 128 i 195.(1 ........................ 4
.Jaffke v. Dunham, 352 U.S. 2S0 (1057)
Langncs v. Breen, 282 U.S. 531 ( 1031) - ,, ...
Lau v. Xichols, 414 U.S, 503 (1974) ....................." , i >
L‘(7th"cdr °197U T,'ansiM,rtatiou 54s‘ F.'2d 1277 ’
Lynch v. Tilden Produce Co., 265 U.S. 315 (1924)........... 12
35
T abi.f. of A utiiouities Cited iii
Manhattan Ceneral Equipment Co. v. Commissioner *97
L.S. 129 (1930) ......................
McDonald v. Santa Fe Trail' Transportation Co." W U S **
( 10'G) ....................................................................0.5 20 27 33
McDonnell Douglas Corp. v. Breen, 411 U.S. 79° (1973)' 05’ " }
Mckart v. United States, 395 U.S 1S5 (1900) ~ * o7
f i l le r v. United States, 294 U.S. 435 (1935) ...................... o-
Mills V. Electric Auto-Lite Co., 39G U.S. 375 ’ (1970) " " " "9
- lorley Constr. Co. v. Maryland Cas. C'o., 300 U.S 1X5
(1037)
Mourning v. Family Publications Service, ' Inc' ’ ’ l l " " S
350 (1973) ..........................................
Murdock v. City of Memphis, S7 U.S. (20 Wall.) 50(1 ( 1S75) 4̂
iMyei-s v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938) ‘>1
Nat’l R.R. Passenger Corp. v. Xafl Assn, of R.R Passen-crs
414 U.S. 453 (1974) ................................................ " '
Na t̂onabah ^ B o a r d of Education, 355 F. Supp 71G
NLRB v. Inti Van Lines, 409 U.S. 4S (1972) .......... jq
Philbrook v. Glodgett, 421 U.S.' 707 (1975) ........................ oS
Piascik v. Cleveland Museum of Art, 4°6 f ' Sunn 770
(N.D. Ohio 1976j .................................... “ P! '
Richards v. United States, 3G9 U.S. 1 (19G2) oS
Rosado v. Wyman, 397 U.S. 397 (1970) .........." " " " " ’
Securities Investor Protection Corp. v. Barbour 4 0 [ X
412 (1075) ........ '................................................ 19
Strunk v. United States, 412 U.S. 434 (1073) . . " " " " ........ 9
Texas £ Pacific By. v. Abilene Cotton Oil Co °f)4 r X
426 (1907) ............................................ '
Texas & Pacific Ry. Co. v. American Tie & Timber Co >31
U.S. 13S (1914) .................................................. ' "
Trans World Airlines v. Hardison, 97 S.Ct. 2265 (1977) ->9 7-j
Lnitcd States v. American Rv. Express Co ->65 US i->-.
< i 9 - 4 > ...................................................................." : . . . " " . . : 4 5 9
Umteil States v. Heirs of Boisdore, 49 US (S How ) i n '
(1849) ......................................................
United States v. Shirey, 359 U.S. 255 (1959) . . . " " " " " “g
IV T able of A uthorities Cited
United States v. Western Pacific IMP. 352 US. 5!)
(1950) ....................................................................................... 10. 20
Uz/.ell v. Friday, 517 F.2d SOI (4th Cir. 1977) ..................25.37
Ward v. Winstead. 314 F. Snpp. 1225 (X.I). .Miss. 1970) .. 11
M I'inhcrirer v. Bentex Pharinaeeuticals, Inc.. 412 U.S. 045
(1973) 20
Zuher v. Allen, 390 U.S. 108 (1909) ...................................... 31
Constitutions
United States Constitution:
Fourteenth Amendment .......... ...........................4,5,0,7,37,39
Statutes
Civil Fights Act of 1904:
Title I (42 U.S.C. § 1971) ................................................ 20
Title II (42 U.S.C. 5? 2000a. et seep) .......................... 20
Title VI (42 U.S.C. rt 20()0d. et seq.) ..........................passim
Title VII (42 U.S.C. §§ 2000e, et seq.) ........22, 20. 27, 28, 29
Civil Rights Act of 1S71 (42 U.S.C. § 19S3) ........................ 37
Emergency School Aid Act of 1972:
Title IX i 20 U.S.C. §l(i81(u)) ........................................ 12
Fond, Drug & Cosmetic Act of 1933:
(21 U.S.C. § 3 2 1 (p ) (I j ) ................................................... 20
Rehabilitation Act of 1973:
Title V (29 U.S.C. 5 794) ................................................. 12
Regulations
45 C.F.R. Part SO ..................................
§80.3 24,31,32,33,34
§ 80.5 32,33,34,35
§80.7 14,17,13
§ 80.8 14,18,21,22
§ 80.9 IS, 22
§80.10 ............................................................................. 14,15,18
§ 80.13 18 24
T able of A uthorities Cited v
Legislative Reports Pages
110 Cong. Rec. 5255 (1904) (remarks of Sen. Case) ..........13,14
110 Cong. Rec. 0047 (1904) (remarks of Sen. Pasturej . . . . 28
110 Cong. Rec. 7207 (1904) (reply to arguments made bv
Sen. Hill) ....................................’ .........................................’.29.30
110 Cong. Rec. 7213, 7218 (1904) (memorandum of Sens.
Clark and Case) ................................................................ 29,30
Texts and Other Authorities
Bureau of Xat’l Affairs, Inc., The Civil Rights Act of
1904, Operations Manual (1904) .......................................... 28
Choper, The Supreme Court and the Political Branches:
Democratic Theory and Practice, 122 U. Pa. L. Rev., 810
(1974) 30
Stern, When to Cross-Appeal or Cross-Petition—Certainty
or Confusion? 87 Ilarv. L. Rev. 703 (1974) ...................... 9, 10
Ju the Bmpmm' (Ennrt
OF T H E
H u tfr fc S t a i r s
O ctober T er m , 1977
No. 76-811
T h e R eoexts of t h e U niversity of C alifornia ,
Petitioner,
vs.
A llan* B akice,
Respondent.
SUPPLEMENTAL BRIEF OF RESPONDENT REGARDING
APPLICATION OF TITLE VI OF THE
CIVIL RIGHTS ACT OF 1961
STATUTORY PROVISION INVOLVED
Title VI of the Civil Rights Act of 1961 (12 U.S.C’.
§§20001, et -s■(([.) provides in pertinent part:
“ No person in the United States shall, on the
{ground of race, color, or national origin, he ex
cluded from participation in, lie denied the bene
fits of, or he subjected to discrimination under
any program or activity receiving Federal finan
cial assistance.”
INTRODUCTION AND SUMMARY OF ARGUMENT
This brief is submitted on behalf of respondent
Allan Bakke pursuant to the Court’s request for a
2
supplemental brief discussing Title V I of the Civil
Jiights Act of l'Jlil1 as it applies to this c:\se. The
statutory question arises because petitioner, a recip
ient of Federal funding, adopted a racial quota
admission policy at the Davis Medical School and, as
a result, caused liakke to be excluded from the school.
In the sections that follow, we explain that the
Title VI issue is properly before the Court. The
statute was raised by both Bakke and the University
in the trial court and was cited by each of them in
the court below. Although the California Supreme
Court based its decision upon Federal constitutional
grounds, Bakke may rely upon Section 2000d in sup
port of his assertion that the judgment be affirmed.
The previous decisions of this Court establish that,
as respondent, Bakke may rely upon any Federal
ground properly appearing in the record.
There is no dispute that petitioner's special admis
sion program discriminates on the basis of race. Be
fore reaching the question of whether the program
violates Section 2000d, however, it is necessary to
resolve two preliminary matters. The first is whether
Title V I creates a private right of action. We submit
that it does. Tin* statute creates an individual, sub
stantive right not to be discriminated against in
Federally funded programs and a private cause of
action is required to protect that right. The legisla
tive history of Title \ I clearly anticipates individual
'4ii t'.S.C. t:gOOOd, / / :.rq. < herein,-iTier relYnvil to its “Title VI",
“ Section ‘200(1(1’’ or ‘‘ the statute’’ ).
3
suits and, indeed, a review of the regulatory enforce
ment procedures under the statute reveals that the
individual has no viable administrative remedy which
can compel a correction of previous discrimination.
The second prelimin'ary matter concerns the related
questions of whether the Department of Health, Edu
cation and "Welfare (H E W ) has primary jurisdiction
over Bakke’s Title V I claim and whether he must
exhaust HEW administrative procedures prior to
filing suit. The previous decisions of this Court, as
well as forceful considerations of policy, dictate that
these inquiries must be answered in the negative.
There arc no administrative procedures designed to
adjudicate Bakke's complaint or to order tin* relief he
seeks. In addition, there is no reason for the Court
to defer to administrative "expertise” . Although such
deference might be justified in a case involving tech
nical questions within the special competence of an
other federal body, this cause is of a different order.
It involves a claim of racial discrimination and the
issues presented arc ones to be decided by the ju
diciary, not an administrative agency.
In reaching the merits of the Title VI claim, we
demonstrate that petitioner’s racial quota system
clearly violates the statute. Tin* quota contravenes
the plain language of Section 2000(1 which expressly
outlaws any racial discrimination in Federally funded
programs. It is equally condemned by the legislative
intent behind the statute and the HEW regulations
promulgated under it. Several recent judicial deci
sions confirm this analysis.
4
The Court thus has two bases upon which to sustain
the holding of the California Supreme Court. The
Court may affirm the jiulmnent below by reiving on
the Fourteenth Amendment or may roach the same
conclusion by relying- upon Title VI. Regardless of
the ground chosen, the decision rendered and the
relief awarded should be the same. Petitioner’s racial
quota admission policy should be struck down as il
legal and Allan Babko, who was barred as a result
of the quota, should be ordered admitted to the medi
cal school.
ARGUMENT
I.
THE TITLE V I ISSUE IS P R O PE R L Y BEFORE THE COURT.
At the outset it is appropriate to set forth briefly
some of the things this case does not involve. This is
not a case in which a party seeks to raise an issue
for the first, time on appeal. Cardinale. r. Louisiana,
394 U.S. 4.47, 438 (1939). Aor is this a ease in which
review was sought on one issue and, once granted,
the petitioning party attempted to shift ground to
another question. I mine r. California, 347 U.S. 128,
129-30 (19o4). Nor is this a case in which tin* re
spondent seeks to enlarge or alter the .judgment of
the court below. I'nil ad SI alts r. American Iiu
C.rpress Co., 235 U.S. 42.7, 435-33 (1324). Finallv,
this is not a decision of a state court which is based
upon an independent and adequate state ground. Faij
r. Xoia, 372 U.S. 391, 428-30 (1333) : Cor Film Carp,
v. Mullen, 29b U.S. 207, 210 (1937; ; Murdock r. 677//
of Memphis, SI U.S. (20 Wall.) 300, (132-30 (1873).
5
4\ hat is present here is the judgment of the Cali
fornia Supreme Court affirming a trial court decision
that petitioner's special admission program is invalid.
The decision of the California Supreme Court is based
exclusively on Federal grounds. Although the court
discussed only the Federal constitutional issue, a par
allel statutory claim—-grounded in Title VJ of Un
c i v i l Rights Act of 1904— was properly within the
appellate record. A long line of this Court's decisions
establishes beyond doubt that the statutory claim,
which has been a part of this case from the very
beginning, can now be raised by respondent in support
of the judgment below. Dandridpe r. Williams, 3547
U.S. 471, 473 n.b (1970) ; Lantjncs v. Green, 282 U.S.
331, 337-38 (1931); Lulled States v. American Ihj.
Express Co., supra. On certiorari to a state court,
this Court has the power to review all federal ques
tions presented by the record. Ilcrh e. Pitcairn, 324
U.S. 117, 125-20 (194-1).
An examination of the record reveals that the
Title V I claim was pleaded by both parties at tin-
inception of this litigation. Bakko included the stat
ute in his complaint as o i k - ,of his grounds for relief.
R. 1-53 Tlu- University asserted the statute in its
cross-complaint for declaratory relief. R. 20-313 The 2
2T he complaint alleges in part:
. . That by reason of the action of [petitioner! in ox-
eiudini: | Eiiklnr| from the first-year medical school class under
| petitioner's] minority preference admission program. |I>akl:e]
inns been invidiously discriminated acainst on account, of his
race in violation of the Equal Protection Clause of the
Fourti tilth Amendment to the United Slates Constitution . . .
G
trial court, in ruling specifically, on the University's
cross-complaint, held that the special admission pro
g-ram violates Section 2000(1:
“ IT IS HEREDV ORDERED, AD.J FIX! ED
AND DECREED:
* * *
. . . Cross-defendant Allan Dakke have judu,1 * * *-
ment against cross-coni])lainant, the Regents of
the University of California, declaring that the
special admissions program at the University of
California at Davis Medical School violates the
Fourteenth Amendment to the United States Con
stitution . . . and flic Federal Civil Iiii/Ids Act
[ o f lOCi (42 U.S.C. §2000(1) ]. . . R. 394 (em
phasis added).
anil the Federal Civilr> T>. . . . II. O.
Rights Act [or 1‘JG-t (42 U.S.C. §2000.1) J
The prayer of the complaint goes no further than Bnkke’s
individual case of discrimination. I nder his three causes of action
-mandamus, injunctive relief, and declaratory relief) Balder, tusked
he trial court for basically one thine: a .judgment that would
permit, him to enroll at tlm Davis medical school. R. 4. The .pi. s-
■ion of whether the special admission program should he declared
invalid was raised by petitioners cross-complaint for declaratory
relief. Set. note 3, infra.
’ The cross-complaint reads in part:
‘ ‘ An actual controversy has arisen and now exists between
the Lni\ersitv and [Rakke| relating to whether the special
admissions program . . . violates the E.ptal Protection Clause
of the Fourteenth Amendment to the Fnitcd States Constitu
tion . . . and/or the federal Civil Rights Act (4’ ’ C S C
§2000U.i) . . .
. . . '1 he University desires a declaration with respect to the
validity of said special admissions program so that it may
ascertain its rights and duties with respect to the evaluation
of | Bakkes| application and otIters.
WHFRKFORF, the University prays for a judgment de
claring the rights and duties ot it and |Dakke| under said
special admissions program and that iL be declared that said
special admissions program is lawful.” A. 30-31.
7
Thy University's appeal from that judgment placed
the constitutional and statutory issues before the Cali
fornia Supremo Court. R. 39S-99.
In its opening brief on appeal, the University con
tended that the special admission program was au
thorized by Title VI.* Dakke argued the opposite,
pointing out that while this case involves constitu
tional issues, it "also involves the application of the
. . . Federal Civil Rights Act of 1904 (42 U.S.C.
§2000d).”5
In affirming the trial court judgment as to the
invalidity of the special admission program, the Cali
fornia Supreme Court discussed only the Federal con
stitutional issue. The court’s silence as to Title VI,
however, does not alter the fact that the statutory
‘ Opening Brief of Appellant and Cross-Respondent, Bakke v.
The Regents of the University of California, IS Cal. 3d 34 (19711)
at 34-3.0.
“Reply Brief of Plaintiff, Respondent and Cross-Appellant.
Bakke v. The Regents of the University of California, 18 Cal. 3d
34 (197(1) at 2 n.l. The- brief just cited was Bakke's second brief
in the court below. In his opening brief, Bakke raised the statutory
claim as follows:
"The [California Supreme Court] must consider whether
[petitioners] program violates the command of the Four
teenth Amendment that no state shall "deny to any person
within its jurisdiction the equal protection of the laws' .
or the command of the Federal Civil Rights Act of 19(14 (42
U.S.C. §2000d) that ‘no person in the United States shall,
on the ground of race, color, or national origin, be exclud'd
from participation in, be denied the benefits of, or be sub
jected to discrimination under any program or activity receiv
ing Federal financial assistance.’ ”
Reply Brief as to Appeal and Opening Brief as to Cross-Appeal of
Plaintiff, Respondent and Cross-Appellant, Bakke v. The Regents
of the University of California, IS Cal. 3d 34 (197(1) at 13-11.
Because Section 2000d “ in man}- ways parallels’’ the Fourteenth
Amendment, the statute was not separately discussed in Bakke's
briefs. Id. at 14 n.l.
8
question was properly raised on appeal. International
Harvester Co. v. Missouri, 231 U.S. 199, 207 (1914).
Moreover, the particulars of the state court’s opinion
do not affect Bakke's right to assert Section 2000d
in support of the California Supreme Court decision.
He may urge any federal ground properly appearing
in the record. Dandridge v. Williams, 397 U.S. 471,
475 n.6 (1970).6
It is important to note that in availing himself of
Title VI, Bakke does not seek to alter or expand the
result below. He asks only that the judgment be
affirmed, and that the order of the California Supreme
Conn declaring the program invalid and mandating
his admission to the medical school be uphold. As
the Court has noted on many occasions, a respondent
may rely upon grounds not invoked by the court
below:
••[I]t is likewise settled that the appellee may,
without taking a cross-appeal, urge in support of
a decree any matter appearing in the record.
°Thc crucial inquiry is not whether the court below mentioned
the alternate "rounds in its opinion, but rather, whether the
grounds were properly bo tore the court. As stated in International
Harvester Co. v. Missouri. 4:11 L'.S. 199, 407 (1914):
•'It is true the [lower] court has not referred to [the
separate "rounds! in its opinion, but we cannot regard its
silence ;ts a condemnation of the time or manner at or in
which they were raised.’’
It is axiomatic that the Court “ reviews judgments, and not
statements in opinions’’. Black v. Cutter Laboratories, 37| ('.S.
494. 497 119.70); I’nited States v. Shirey, 379 C.S. 4.7.7, 401 n.7
( 1979) (Frankfurter, .!.). As the Court held over a century ago;
“ We act only upon the judgment of the [court below|.
Only such questions as either have been or ought to bate
been passed upon by that court in the regular course of its
proceedings can be considered by us upon error.” Fashnncht
v. Frank, 90 L'.S. (2.3 Wall.) 410, 440 (1877).
9
although his argument may involve an attack
upon the reasoning o f the lower court or an in
sistence upon matter overlooked or ignored by it.
By the; claims now in question, the [appellee]
does not attack in any respect the decree entered
below. It merely asserts additional grounds why
the decree should be affirmed.” United Slides v.
American Rij. Express Co., 2<>5 U.S. 425, 435-3(1
(1924).
The Court followed this approach in Lungncs r.
Green, 282 U.S. 531 (1931), and in several later
decisions. E.g., Jaffkc v. Dunham, 352 U.S. 280 (1957)
(per curiam) ; Dandridgc v. Williams, 397 U.S. 471,
475 n.G (1970) ; Mills v. Electric Auto-Lite Co., 39(5
U.S. 375, 381 n.4 (1970). The rule that a respondent
may urge in support o f a decree any matter properly
appearing in the record—the so-called Langurs d o c
trine7—thus may be termed “ inveterate and certain”.
Morlc.y Constr. Co. v. Maryland Cas. Co., 300 U.S.
185, 191 (1937) (Cardozo, J.).
Petitioner’s contention at oral argument that the
Court recently changed this rule is mistaken.5 Al
though in certain recent cases the Court prevented
a respondent from relying upon an alternate ground,
the Couid did not overrule or expressly alter the
traditional rule. See, e.g., Strunk v. United Slates, 412
U.S. 434, 437 (1973); Brennan v. Aruhcim <L Neely,
Inc., 410 U.S. 512, 516, 521 (1973); NLRll v. Int’l
7Ste Stcni, When to Cross-Appeal or Cross-Petition— Ccrtninh/
or Confusion.’ 87 Haw. L. Kcv. 7G3 (1974) (hereinafter cited
as "Stern” ) .
“Tr. of Oral Arg. at 22-23.
10
Van Lines, 40!) U.S. 4S. 52 n.4 (1.072). Indeed,
tlu'i(‘ is no mention at all in those decisions of the
Lanynrs doctrine; and in each case, the respondent,
in asserting- the alternate ground, sought to attack in
some way the holding as well as the reasoning of the
lower court. As pointed out above, the present case
is dilferent. Dakke atjrecs with the judgment of the
California Supreme Court; he now asserts an addi
tional, separate ground upon which the decision should
he affirmed.
At most, these recent decisions indicate that judicial
discretion may he exercised in determining when to
permit a respondent to raise alternate grounds in
support of a ruling below.3 In the instant case, the
Court s discretion should he exercised in favor of
permitting Iiakke to raise the statutory claim, for
Title A T may well he the most appropriate ground
upon which to decide the case. As .Justice Drandeis
observed in his classic concurring opinion in Ash-
wanrfer r. 7'enne.ssce 1 rtllt // Authurit ij, 21)7 U.S. 2$S,
347 (193G) :
c Stem, su/jra note 7. at 7GD-70; hi. at 774, 770:
lire sound principle underlying the huHtjius doctrine is
that, appeals arc to he taken from portions of a courts
order which a liticant seeks to change, not from parts of
an opinion in which the liticant disagrees.”
* * * 10 *
. . . [ X|o nood reason has hern advanced which outweighs
the basic consideration that a party satisfied with a jiulir-
ment should not have to appeal from it in order to defend
it on any ground which the record and law permit.”# • •
Indeed, the Court probably more often than not takes
a ease as a whole, not restrictin'.,' the petitioner to par
ticular questions, and the same policy should govern points
raised by the respondent.”
11
‘ ‘The court will not pass upon a constitutional
question although properly presented bv the rec
ord, if there is also present some other ground
upon which the case may he disposed of. This
rule Inis found most varied application. Thus, if
a case can he decided on either of two grounds,
one involving a constitutional question, the other
a question of statutory construction or general
law, the court will decide only the latter.'”0
II.
B A K K E HAS A P R IV A T E RIGHT OF
ACTIO N UNDER TITLE VI.
At oral argument, petitioner’s counsel questioned
whether an individual could sue the University under
Title \ 1.11 A number of factors, including the pre
vious holdings of this Court, combine to establish such
a cause of action. Indeed, the decision in Laa v.
A ichols, 414 L .S. 5G3 (1974), appears to answer the
question. In Laa, non-English speaking Chinese stu
dents claimed that the San Francisco Unified School
District was providing them with unequal educational
opportunities in violation of Section 2000d. Implicit
in the Court’s ruling—which sustained the allegation
of discrimination—is the recognition of a private
right of action under Title V IA Lower federal courts
have expressly reached the same conclusion. See, caj.,
10X7c, c.<).. Ward v. Winstead. .114 F.Supp. 122-7, 1237 (XI).
7Iiss. 1!)70). In Ward, the District Court relied upon Title VI so
as to avoid decision on a constitutional question.
“ Tr. of Oral At". at 23.
“ The Court's opinion in hau did not expresslv discuss the
question of private right of action under the statute. The plain
tiffs’ right to bring the suit, however, appears to have been
12
Boissicr Parish School Hoard v. Lemon, 270 F.2d
817. 851 72 (5th Cir.), c<it. denied, 2,88 U.S. 91L
(1907) ; Xatonabah r. Board of Education, 355 F.
Supp. 710, 721 (D.X.M. 1973).”
These decisions are entirely consistent with the ju
dicial guidelines which govern private suits to enforce
statutory rights. The relevant considerations were set
forth in Port c. Ash, 422 F.S. GO, 7S (1975) (citations
omitted) (emphasis by the Court):
‘Til determining whether a private remedy is
implicit in a statute not expressly providing one,
considered. I.au v. Nichols. 414 U.S. 563, 571 n.2 (. 1974) (Stewart,
•J., concurring).
Moreover, the United States, which represents the various
Federal funding agencies charged with monitoring the use of
Federal funds, filed a brief amicus curiae in Lnu which specif
ically recognized a private right of action to seek injunctive
relief under Title VI. The government’s brief in Lau states:
“ It is settled that petitioners, as representatives of the
class of affected children, have standing to enforce Section
p2000d|. and that injunctive relief is an appropriate remedy."
Brier of United States as Amicus Curiae, I.au v. Nichols,
411 U.S. 563 ( 1H74j at 13 n.5.
’ ’ In addition, the courts have recognized a private right of
action in two analogous situations. The courts have permitted
individuals to sue to enforce Title IX of the Kmcrgeney School
Aid Act of 1!)7'J (20 U.S.U. §10s1 i ;i i ), which prohibits sex. dis
crimination. I’ iaseik v. Ulcvcland Museum of Art, 426 F. Supp.
776. 7S0 n.l (N.l). Ohio 11)71> t. The courts also have recognized
a similar cause of action to enforce Title V of the Rehabilitation
Act of 11)73 (2!) U.S.U. §7D4), which prohibits discrimination
against handicapped individuals. Lloyd v. Regional Transporta
tion Authority, 54s F. 2d 12m , 12>.4-s7 t 71h Uir. 11)77). These two
statutes closely track the language of Section 2000d, as they
govern Federally financed activity. The rehabilitation statute,
for example, provides that:
“ No otherwise qualified handicapped individual in the
United States . . . shall, solely by reason of his handicap,
be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
netivitv receiving Federal financial assistance.” 21) U.S.U.
§71)4. '
13
several factors are relevant. First, is the plaintiff
‘otic of the class for whose especial benefit the
statute was enacted,’ . . . that is, does the statute
create a federal right, in favor of the plaintiff.'
Second, is there any indication of legislative in
tent, explicit or implicit, either to create such a
remedy or to deny one ! . . . Third, is it consistent
with the underlying purposes of the legislative
scheme to imply such a remedy for the plaintiff.'
. . . And finally, is the cause of action one tradi
tionally relegated to state law, in an area basically
the concern of the States, so that it would be
inappropriate to infer a cause of action based
solely on federal law V’
See also Securities Investor Protection Corp. v. Bar
bour, 421 U.S. 412 (1975); Xat’l It.lt. Passenger
Corp. v. Xat’l Assn, of It.It. Passengers, 414 U.S. 453
(1974).
All of these considerations are satisfied in the in
stant case. The statute involved here clearly creates
a federal right in favor of Bakke. The legislative
history of Title V I reveals that Section 2000d,
‘ ‘which is a statement of substantive right—a
substantive right of individuals, o f persons, not
to be discriminated against or excluded from
participation in or denied the benefits of any
program or activity receiving Federal assistance
—means exactly what it says. It does not provide
a method of enforcement, by itself; but T suggest
that it is complete . . . .” 110 Cong. Rec. 5255
(L9G4) (remarks of Sen. Case).
As to the legislative intent mid purpose respecting
the appropriate form of remedy, the congressional
u
debates over Title VI imply that private actions are
permissible to secure the rights granted by the stat
ute. The administrative enforcement procedures au
thorized by Section 2()00<1-1 were not intended by the
legislature to limit in any way the ‘‘substantive right
of individuals” established by Title \ I. The further
remarks of Senator Case illustrate the point:
“ I do not wish to quibble about this; but I
wish to make clear that the words and provisions
of section [2000d] and the substantive rights es
tablished and stated in that section are not lim
ited by the limiting words of section [2000d-l]
. . . My only point is that I do not want my
embracement of this bill to be construed as in
dicating that I believe that the substantive rights
of an individual, as they may exist under the
Constitution, or as they may be stated in section
[2000d], are limited in any degree whatsoever.”
Id .
The enforcement procedures adopted by the various
Federal funding agencies are designed to terminate
Federal funding rather than adjudicate individual
complaints. Although the agencies are encouraged by
the statute and the regulations to effect voluntary
compliance,1' they are not empowered to order such
compliance.15 Indeed, when the Court considers the
>‘42 r.S.tJ. §2000(1-1; 45 (J.F.R. §S0.7(d).
>•'•45 C.K.H. §§80.7(<1), .SO.S. SO.lOtf). The regulations .themselves
make clear from tlie outset that they apply to “ money paid, prop
er! v transferred, or other federal financial assistance . 45 ( .h Ik
tjiaO.J. Now Imre in the regulations is there mention of 11 MW’s
power to issue injunctive orders to correct instances of racial
discrimination. As wc explain below (note 1G, infra), IIKW's
authority is geared to the denial or revocation of Federal funding.
15
situation confronted by an individual victim of racial
discrimination, the need for a private right of action
is clear. The Federal funding agency usually will not
have been advised of the statutory violation until after
it has occurred. The administrative procedures, how
ever, aim at the revocation of future Federal funding;
they are not designed to mandate a remedy for pre
vious discrimination by a recipient <j>f such funds.10
If, for example, tin1 recipient chooses to suffer a future
funding cutoff rather than revise its program, persons
victimized by the previous conduct simply have no ad
ministrative remedy. The plain solution to this prob
lem is to permit individuals to seek injunctive relief
under Title VI. Such a rule squares with long stand
ing judicial policy:
“ Where federally protected rights have been,
invaded, it has been the rule from the beginning
that courts will be alert to adjust their remedies
so as to grant the necessary relief.” B< II r. Hood,
327 F.S. (178, 6S4 (l!)K i)."
1C45 C.F.R. Section SO. 10(f), which governs the content of HEW
orders, provides in part:
“ The final decision may provide for suspension or ter
mination of, or refusal to grant or continue Federal financial
assistance, in whole or in part . . . and may contain such
terms, conditions, and other provisions as are consistent with
and will effectuate the purposes of the Act and this regula-
tiori, including provisions designed to assure that no Federal
financial assistance . . . will thereafter be extended . . . to
the applicant or recipient . . . (who has| failed to comply
with this regulation unless and until it corrects its noneom-
pliance and satisfies the responsible Department official that
it will fully comply with this regulation.”
l;The (piestion of whether the private right of action under
Title VI encompasses a right to sue for damages should properly
be reserved for a later case. Bakke's complaint does not seek
damages, but rather, a court order requiring petitioner to admit
him to the Davis Medical school. See note 18, infra.
16
The Jinal consideration set forth in the Cort ease,
supra, can he disposed of with little discussion. The
protection of Federal civil rights certainly is not an
area ‘ 'traditionally relegated to state law”. It is an
area worthy of vigilant judicial protection. The recog
nition of a private right of action under Title VI
grants that very protection to individuals who seek
to assert their statutory right to he free from racial
discrimination in Federally funded programs.
III.
B A K K E W A S NOT REQUIRED TO RESORT TO H E W AD M IN IS
T R A T IV E PROCEDURES PRIOR, TO COMMENCING THIS
LITIGATION.
Closely related to the private right of action issue
is the question of whether Bakke is required to
employ I1EYV Title V I administrative procedures
prior to filing suit. Whether this question is couched
in terms of “ primary jurisdiction” or “ exhaustion
of administrative remedies” the answer is the same.
Bakke is not required to resort to administrative
procedures.
It must be borne in mind that Bakke’s complaint
contains three related causes of action: mandamus,
injunctive relief, and declaratory relief. R. 1-5. But
the causes of action seek the same result: Bakke’s
admission to the medical school. The prayer of the
complaint is explicitly clear on this point.” At no
place in the complaint for anywhere else) has Bakke 1
1',Th<‘ prayer in Baklm's compliant asked the trinl court to
“ issue its alternative Writ ot’ Mandate directing fpetitioner!
to admit [Bakke] to said medical school, or to appear before
17
asked for the remedy which is the gist of the
administrative procedure, to wit, the withdrawal of
the University's Federal funding. Bakke simply wa:
not required to pursue a remedy which was not en
compassed in the relief he sought.19
The HEW administrative procedures support this
proposition, for they do not even require the filimr
of an individual complaint.-0 Moreover, even if Bakke
chooses to file such a complaint, there is no prescribed
procedure for HEM to resolve his individual griev
ance. As noted earlier, H E W ’s power is to cut off
Federal funding.31 I f the recipient decides to let a
funding cutoff stand rather than correct its discrimi
natory conduct, then there is no administrative proce
dure available to protect the rights o f persons, such
as Bakke, who were discriminated against during the
the [trial court] and show cause why said admission to said
medical school may he denied [Bakke],
. . . [I]ssue its order directing- [petitioner] to appear and
show cause why [it ] should not be enjoined during tin-
pendency of this action and permanently from denying
[Bakke] admission to said medical school.
. . . [E ]ntcr its judgment declaring that [Bakke] is [en
titled to admission to said medical school: and. further de
claring. that [petitioner is] lawfully obligated to admit
[Bakke| to said medical school.
. . . For suck other and further relief as to [the trial court]
may seem pro|>er.” It. 4.
‘ “Additionally, it is obvious that the State Superior Court
could not have ordered a termination of the school's federal
funding; nor did Bakke seek to join HEW as a defendant.
:04> C.l Ik Section 80.7(b) (emphasis added) provides in part:
' “ Any person who believes himself or any specific class
of individuals to be subjected to discrimination prohibited
by this part mm/ by himself or by a representative file with
the responsible Department official or Ills designee a written
complaint.”
2,See note 16, supra.
18
period in which the recipient was receiving- Federal
funds.
The nature of the administrative procedure is to
resolve disputes between HEW and the recipient, not
between the recipient and individual victims of dis
crimination. Although Bakkc may file a complaint
with HEW, and will be sent notice of a hearing,"
if and when one is held,'1 there is no provision what
ever for him to participate in the hearing.'1 The regu
lations do not provide that he may be represented by
counsel at the hearing,2"' or that he may present
evidence, cross-examine witnesses, or submit a brief.'6
The administrative procedures do not even extend
to P.akke the right to appeal from an adverse ruling.* 27
Indeed, the procedural regulations themselves make
scant reference to an individual complainant; they
refer primarily to "the Department’7 and ‘ ‘ the re
cipient” .2’ In reality these regulations grant Dakke
==4b C.’ .F.It. iSO.Ofa).
“ -to C'.F.R. ASO.Tuli. SO.S(c) and 80.9(a).
“ The hearing' itself may lie hold so far away from the site
of the discriminatory act. or from the complainant’s residence,
that it is too inconvenient for him to participate in the pro
cedure. As set forth in the regulations, tin- hearing “ shall be h> Id
at the offices of the Department in Washington. 4 b C.F.K.
§80.9(1)). Only the inconvenience of the funded institution or of
j [ |.; W_rutin r limn of Hie comi>lninin<i [larty—can require that an
alternate hearing site be selected. Id.
“ 4b C.F.H. §80.9(c).
“ 4b C.F.K. §80.9(d).
274b C.F.H. §80.10(a), (e).
•"L.ij., 4b C.F.K. §80.9 (e ) :
“ In all proceedings under this section, the <n>i>licant or
reci)>u nt uittl tin l)> [tnrtmint shall have the right to be repre
sented by counsel.'’
The words “ applicant or recipient’ ’ refer to the funded institution.
Sit 4b C.F.li. $80,130), (k).
19
no remedy and, hence, there is no reason for a court
of law to abstain from hearing his Title \ I claim.'9
The Court’s previous decisions amply support
Bakke’s right to seek a judicial resolution of this
dispute. In United States r. 11 tsteni Pacific It.11 .,
;J52 E.S. 59, 05-65 (1956), the Court announced
the rationale behind the doctrine of primary juris
diction and the rule requiring exhaustion of admin
istrative remedies:
‘ ‘ The doctrine of primary jurisdiction, like the
rule requiring exhaustion of administrative rem
edies, is concerned with promoting proper rela
tionships between the courts and administrative
agencies charged ’ with particular regulatory
duties. ‘Exhaustion’ applies where a claim is cog
nizable in the first instance by an administrative
agency alone; judicial interference is withheld
until the administrative process has run its
course. ‘Primary jurisdiction,’ on the other hand,
applies where a claim is originally cognizable in
the courts, and comes into play whenever enforce
ment of the claim requires the resolution of issues
which, under a regulatory scheme, have been
placed within the special competence of an ad
ministrative body; in such a ease tin* judicial
process is suspended pending referral of such
issues to the administrative body for its views.”
These concerns do not require judicial deference to
HEW. Respecting primary jurisdiction, the Court
noted in Western Pacific that ‘*[n]o fixed formula
“ Bakkv did file a eomplaiiW with IIFW. K 2S1. The complaint,
however, asked for no specific relief: it, did not. request that lll-AV
order the University to admit Bakkc, nor did it request that IIFW
terminate the University's Federal funding.
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22
rl he decision in Rosado v. Wyman, 397 LTS. 397
(1970), follows the above analysis. Rosado involved
a conflict between state and Federal welfare regula
tions. The respondents in that case argued that 1IEW
was the appropriate forum, at least in the first
instance, for the resolution of the merits of the* 1 con
troversy. The Court flatly rejected that contention,
stating:
“ Petitioners answer, we think correctly, that
neither the principle of ‘ exhaustion of adminis-
plaiimnts, but rather, appears to place certain procedural limita
tions upon IIEV . Section SO.S(d) provides as follows:
‘ ‘ (d) . . . Xo action to effect compliance by any other means
authorized by law shall be taken until ( 1) the responsible
Department official has detenuined that compliance cannot
be secured by voluntary means, (2 ) the recipient or other
person has been notified of its failure to comply and of the
action to be taken to effect compliance, and (3) the expiration
of at least 10 days from the mailing of such notice to the
recipient or other person. During this period of at least 10
days additional efforts shall be made to persuade the recipient
or other person to comply with the regulation and to take
such corrective action as may lie appropriate.”
I. nder this section, the Department may take no action under
“ other means authorized by law” until it has determined that
voluntary compliance is impossible and until it has notified “ the
recipient or other person” of a failure to comply with the statute.
The “ other person” referred to would obviously be an employee
or agent of the recipient, lie could not be a complainant ' such
as Bakke) because such a complainant would not be in a position
“ to comply with the regulation and to take such corrective action
as may be appropriate ’. Indeed, a careful reading of the entire
regulatory scheme reveals that when the regulations are intended
to refer to an individual complainant, they do so cxpresslv. .S'tv,
c.(j., ~b> E.F.K. yS0.!)(a) (emphasis added), which provides in part:
“ Thk compluinnnt, if any, shall be advised of the time and
place of the hearing.”
A further indication that the regulations do not restrict an
aggrieved party from commencing litigation stems from the fact
that Section 12000.1 does not include, nor has 1IH\V adopted,
a procedure for issuing “ right to sue” notices to individual
complainants. Compare the Title VII procedure (42 I'.S.C.
§2000e-5(f)(l)).
23
Dative remedies’ nor the doctrine of ‘ primary
jurisdiction’ has any application to the situation
before us. Petitioners do not seek review of an
administrative order, nor could thev have ob-
taint'd an administrative ruling since HEW' has
no procedures whereby welfare recipients may
trigger and participate in the Department's re
view of state welfare programs.” 397 E.S. at 40(3.
Bakke is in precisely the same situation. Like the
plaintiffs in R osad o, he properly chose to proceed with
litigation. Thus, it remains only to consider whether
petitioner’s method for selecting medical students
violates the statutory command of non-discrimination.
IV.
THE S P E C IA L ADM ISSION PROGRAM
V IO L A T E S T IT L E VI.
A. The ProgTam Violates the Plain Language of Section 2000d.
Title V I of the Civil Eights Act of 19(34 provides
that:
“ Xo person in the United States shall, on the
ground of race, color, or national origin, be ex
cluded from participation in, be denied the bene
fits of, or be subjected to discrimination under
any program or activity receiving Federal fi
nancial assistance.” 42 U.S.C. §2000d.
To prove a statutory violation, two things must be
shown. The first, obviously, is a program or activity
receiving Federal financial assistance. The second is
the fact that the complaining party was either ex
cluded from participation in the program or activity,
denied the benefits thereof, or subjected to diserimina-
24
tion under the program on the ground > race, color,
or national origin. Both ot‘ these factors are present
in the instant case.
Jn the trial court, the University admitted and
alleged the receipt of Federal financial assistance.
K. 24, 29. ' In addition, IIEW regulations establish
that the Davis Medical School is a “ program or
activity’’ within the meaning of the statute.” As to
the act of discrimination, the facts of this case arc
beyond dispute. Idle University adopted a racial
quota system to govern admission to the Davis Medi
cal School and thereby prevented Bakkc—solelv be
cause of his race— from competing for 16 of the 100
places in the first year class.
Petitioner cannot validate the special admission pro
gram on the theory that, although Bakkc was excluded,
persons of his race filled most of the places in the first
year class.31 The statute itself declares that "no person’’
shall be excluded on racial grounds. Bakke's rights
under this provision are individual and substantive; * 3
'■'■Scr also Tr. or Oral Arc. at 23:
“ Q[ F..STIOX: tVoil. is it clear in the record that this
institution is within tin' coverage of Title V I ’ ”
"MR. COX: All medical schools got grants, including the
one; in effect, grants per student. Stove can't seriously deny it."
3‘45 CM■ .R. Section SO.13(g) defines the term “ program” as used
in the statute. It includes any program, project, or activity
“ including education or training” which is . . provided through
employees of the recipient. . . .”
The statutory prohibition against denying the “ benefits" of a
program to an individual because of his race covers “ uny . . . bene
fits provided with the aid of 1-Vdr-ral financial assistance . . . and
u)i>/ . . . benefits provided in or through a facility provided with
the aid of Federal financial assistance. . . .” Id. (emphasis added j;
arc also (SO.3( b) (4J.
“ Brief for Petitioner at TO.
25
they arc not group rights. Thus, in considering whether
Bakke’s rights were violated, the Court must examine
how his application was treated, and not whether the
University admitted some other persons of his race.
Nor can petitioner validate the program on the
theory that members of Bakke’s race “ control" the
admission process.33 The fact that other persons of
Bakke’s race lhay have composed a majority of the
admission committee cannot dispel the fact that lie
was discriminated against. As the Court noted in
Castaneda v. Purtida, 430 U.S. 4S2, 499 (1977) :
“ Because of the many facets of human motiva
tion, it would be unwise to presume, as a matter of
law that human beings of one definable group will
not discriminate against other members of their
group.” i
The Civil Rights Act of 1964 prohibits racial dis
crimination against any person. The statute “ toler
ates no racial discrimination, subtle or otherwise.”
McDonald v. Santa Fe Trail Transportation C o 427
U.S. 273, 2S1 n.8 (1976) (emphasis by the Court);
McDonnell Doiujla.y Corp. v. Green, 411 U.S. 792, SOI
(1973). On its face, petitioner's quota arrangement
violates the Title V I command of nondiscrimination.
“ xY reading of . . . Section 2000d . . . is all that is
needed for authentication of this conclusion.” I zzell r.
Friday, 547 F.2d SOI, 804 (4th Cir. 1977).
z’'ld. at 73. For the racial coin posit ion of the 1072-73 Admission
Committee at the Davis Medical School , sec It. 2.70-52.
26
B. The Legislative History of the Civil Rights Act of 19G4 Indi
cates that Racial Preference Programs such as Petitioner’s
Quota are Illegal.
As the Court lias noted on several occasions, the
central purpose of the Civil Rights Act of 1964 is to
eliminate racial discrimination. Trans World Airlines
v. Hardison, 97 S.Ct. 2265 (1977) ; McDonald v. Santa
Fe Trail Transportation Co., 427 17.S. 275 (1976) ;
Griygs v. Duke Power Co., 401 U.S. 424 (1971).
When it enacted this body of law, Congress was well
aware of the injustice that occurs whenever a person’s
race determines whether he is to be hired or fired,
promoted, allowed to vote, permitted to rent public ac
commodations or to participate in a Federally funded
program. To remedy this situation, Congress enacted
a body of law that prohibits the use of race in the
making of such decisions.36 The central command of
the statute is for nondiscrimination. “ Discriminatory
preference for any group, minority or majority, is
precisely and only what Congress has proscribed.’ ’
Gritjtjs v. Duke Power Co., supra, 401 U.S. at 420-431.
The Court’s decision in McDonald v. Santo Fc Trail
Transportation Co., supra, clearly indicates that
nondiscrimination is the gravamen of the Act. In
McDonald, the Court unanimously held that Title V II
of the Act protects all persons to the saint1 degree:
“ This conclusion is in accord with unconlra
diated legislative history to the effect that Title
3r‘Si<: Title I of tin' Civil Riuiits Act of 1061 (42 I'.S.O. s 1071
[votimr|); Title IT 142 1 .SC. §§2000a, et su/. [public aeeom-
moil.it ions | ) ; Title VI 142 f.S.C. §t2000d, rt set/. [Federally
assisted programs)); and Title VII (42 L’ .S.C. §§2000c, ct -icq.
[employment)).
27
V II was intended to ‘cover all white men and
white women and all Americans’ . . . and create
an ‘ obligation not to discriminate against whites’
. . . . We therefore hold today that Title V II pro
hibits racial discrimination against the white pe-
tioners in this case upon the same standards as
would be applicable were they Negroes. . . .” 427
U.S. tit 281 (emphasis added).37
Another of the Court’s recent Title VII cases is to
the same effect. In Trans World Airlines, Inc. v.
Hardison, supra, the Court observed:
“ The emphasis of both the language and the
legislative history of the statute is on eliminating
discrimination in employment; similarly situated
employees are not to be treated differently solely
because they differ with respect to race, co lor ,
religion, sex, or national origin. This is true re
gardless of whether the discrimination is directed
against majorities or minorities.” 97 S.Ct. at 2270
(footnote omitted).
Although these cases involved Title V II, and not
Title VI, the foregoing principles apply with equal
force to both Titles. The plain fact is that the Civil
Rights Act of 1964 was enacted as a single legislative
package, designed to eliminate racial discrimination
“ against majorities or minorities” . In construing one
Title of the Act, the Court should not look to the
;:lTlu: (Joan noted in McDnimhl tint it was not considerin'; the
validity of an "affirmative action” program. 427 L'.S. at 2sl n.S.
For the. reasons set forth in our earlier brief, the same may be
said of the instant ease, for there Ls a clear distinction between
petitioner's quota system and the concept of “ aflinnativc action”.
,Stc Brief for Respondent at 35-39.
28
intricacies of a particular section, but rather, should
look to the provisions of the whole law and to its
object and policy.” United States r. Heirs of Boisdore,
4!) U.S. (8 How.) 113, 121 (1849). See also Philbrook
e. Blodgett, 421 U.S. 707, 713 (1973); Chnnehucvi
Tribe of Indians r. FPC, 420 U.S. 393, 402-403
(19e>); Ulehards r. United States, 309 U.S. 1, 11
(1902).
title ̂ 1, like Title \ II and the other parts of the
Civil Rights Act of 1904, is designed to end all racial
preferences.
All this bill provides is that when inonev of
the taxpayers of the Nation is used to support a
program in a particular State, the program must
be administered in accordance with the American
wav in other words, that in connection with the
program, it will not be permissible to sav *ves’ to
one person, but to say 'no’ to another person, only
because of the color of his skin.” 110 Cong. Roc.
0047 (1904) (remarks of Sen. Pasture).”
Legislative aversion to preferential racial quotas
was voiced most often during the debates over the
effect of litle 3 II. 1 hese discussions are pertinent
to the instant case in that they demonstrate bevond
doubt that the purpose of the Act is to eliminate
racial discrimination in general, and to eliminate any
deliberate attempts to maintain a particular racial
balance.
“There is no requirement in title V II that an
employer maintain a racial balance in his work-
<d*<> Brume; of Natl A ffairs, Inc., T he Civil Rights
A ct of 19(14, Operations .Manual (19G4) at 91.
force. On the contrary, any deliberate attempt to
maintain a racial balance, whatever such balance
may be, would involve a violation o f title V II
because maintaining such a balance would re
quire an employer to hire or refuse to hire on
the basis ol race. It must be emphasized that
discrimination is prohibited as to any individual.”
110 Cong. Ree. 7213 (1904) (memorandum of
Sens. Clark and Case).
29
The Justice Department of the United States took
the same position. At the. request of Senator Clark,
the Justice Department prepared a rebuttal to argu
ments that Title ̂ II would require racial quotas.
The Justice Department position paper argued as
follows:
“ There is no provision, either in title V II or in
an// other part of this bill, that requires or au
thorizes an}’ Federal agency or Federal court to
require preferential treatment for any individual
or any group tor the purpose of achieving racial
balance. Xo employer is required to hire an in
dividual because that individual is a Negro. No
employer is required to maintain any ratio of Ne
groes to whites, Jews to gentiles, Italians to Eng
lish, or women to men. The same is true of labor
organizations. On the contrary, any deliberate
attempt to maintain a given balance would almost
certainly run afoul of title VII because' it would
involve a failure or refusal to hire some indi
vidual because' of his race>, color, re-liglon, sex, or
national origin. What title- V II seeks to ae-e oin-
plisli, ichat the eieil rights bill seeks to accomplish
is equal treatment for all.” 110 Cong. Rce. 7207
30
(1964) (reply to arguments made by Sen. Hill)
(emphasis added). * 40 3 4 * * *
Applying these principles to the present ease, we
recognize that petitioner’s special admission program
is a “ deliberate attempt to maintain a racial balance”
and, as such, involves a violation of the statute be
cause it lequires admission decisions to be made on
tlie basis ot race. The fact that petitioner’s special
admission program constitutes a racial quota removes
the issue thorn doubt tor, as the Clark-Caso memoran
dum, ■'iupin, notes, Quotas are themselves discrimi
natory”. 110 Cong. Ree. 721S (1961).10
"The Justice Department apparently is still of the same opin
ion. .See Brief of Lnited States as Amicus Curiae at 51 111
(Appendix D). ’
401 lie argument that Congress has approved the use of racial
quotas by tailing to amend the statute to expressly prohibit them
carries little persuasive force. A variety of considerations makes it
impossible to discern a cogent legislative intent from the defeat
of a particular measure, or inaction on another. For example, an
amendment could have been rejected on procedural grounds such
ns a vote having been called for prior to the legislators havin'-
had a sufficient opportunity to study the proposed change in
language. It. also could have been that Congress considered the
amendment unnecessary in light of the clear language contained
in the original statute. A turther complication is that even a
proposal supported by a majority could have fallen prev to, and
hi ini trust rated irom passage by, a powerful minoritv, he it an
influential lobby, a subcommittee or an ml hoc coalition of eon-
gresspersons. .She Clio per. The Supreme Court and tin Political
Lame lira: Democratic Tlnorij and Practice 122 ( ’ pi | ij.,..
810, SJO-.jJ (1!)74). Thus the Court lias noted that:
Legislative silence is a poor beacon to follow in discern
ing the proper statutory route.
• * •
The verdict of quiescent years cannot be invoked to baptize
a statutory gloss that is otherwise impermissible. This court
has many times reconsidered statutory constructions that
have been passively abided by Congress. Congressional in
action frequently betokens awareness, preoccupation or paral
ysis. 'It is at best treacherous to find in Congressional silence
31
Tin1 legislative1 history of the Act is important in
reviewing petitioner's special admission program.'Pe
titioner’s quota dearly grants preferential admission
to members of certain racial and ethnic groups, to the
exclusion ol others. As such, it. is clearly at odds with
tin' legislative will that racial preferences be elimi
nated from programs receiving Federal financial as
sistance.
C. The HEW Title VI Regulations Themselves Prohibit Racial
Quotas.
All Federal departments and agencies empowered
to extend Federal financial assistance are authorized
by Title A I to issue rules and regulations which
shitl 1 "effectuate the provisions of [Sjeetion 2000d.”
42 U.S.C. )20l)0d-l. In this case ITI-AV litis promul
gated certain regulations.11 These regulations, how
ever, do nut support the University’s case. Thev
clearly rule out its racial quota admission police.'■
The basic rule is spelled out at 46 C.F.R. Section
80.6, which provides in part:
“ A recipient under any program to which this
part applies may not. directly or through con
tractual or other arrangements, on ground of
race, color, or national origin:
* * *
alone llic adoption of a controlling rule of law.'” Xuber v.
Albii, Jllli l ,S. lbs, is.) it n.21 (40b!)|; si e also tiirouard
v. ( niled Slates. 22s I'.S. bl, bf) i l!)4b;.
"S.e 45 C.F.Il. Part SO, ASO.l-SO.lJ.
4-'Tlu‘ very title of the regulations reads ".VoxiwscmMiXATtON
1 Non: Puookams Rrciuvixc I* rnruAt. As.si.staxci: Tiiuot'ott tui:
I ) i :c a u t m i :x r or I I u a i .t i i , F d i c a t i o x , a x d \\T-:i.i*aici-: . . .” 45
C.F.R. Part 80.
32
. . . Treat, an individual differently from oth
ers in determining whether he satisfies any ad
mission, enrollment, (//iota, eligibility, membership
or other requirement or condition which indi
viduals must meet in order to be provided any
service, financial aid or other benefit provided
under the pro-ram. . . 45 C.F.R. §S0.3(b)(l)
(v) (emphasis added).'3
The regulations provide a series of examples which
illustrate particular situations in which discrimina
tion is prohibited. At 45 C.F.R. Section 80.5 (c) the
regulations provide:
"In a research, training, demonstration, or other
grant to a University for activities to be con
ducted in a graduate school, discrimination in the
admission and treatment of students . . . is pro
hibited. . .
The HEW regulations make clear that if the
University’s admission policy placed a limit on the 45
♦•‘Section SO. 3 also provides that it shall bo unlaw ml for a
recipient, on the -round of race to:
“ iJcny an individual any service, financial aid. or other
benefit provided under the pro-rain . . . [or|■s' W w
. . . Subject an individual to sc-re-atioii or separate treat
ment on any matter related to his receipt of any .service,
financial aid, or other benefit tinder the pro-ram . . . ."
45 (.'.I'.lt. 5b0.:» (b )( l j ( i ;, ( iii j .
"•Si (il.iit 45 (.Mbit. Section SO. 4(b) (2), which provides in part:
“ A recipient, in determining . . . the class of individuals
to whom, or the situations in which . . . services, financial
aid. other benefits, or facilities will be provided . . . or
the class oi individuals to be allorded an opportunitv to
participate . . . may not . . . utilize criteria or methods of
administration which have the effect of .subjecting individuals
to discrimination because of their race, color, or national
ori-in. . . .”
33
A
number of minority persons who could be admitted,
and thereby caused a single minority individual to be
prevented from entering the medical school, the pol
icy would violate Title VI. The same rule should
apply to Allan lJakke for, as noted above, the Uni
versity may not treat- him •’differently from others in
determining whether la1 satisfies any admission . . .
quota. . . .” 45 C.F.R. §S0.3(b) (1) ( v), supra.
It is plainly no answer to Rakko to argue that the
University's special admission program discriminates
in isolated cases and therefore cannot reasonably be
said to burden whites as a group unduly. There is no
exception in the Act, or in the regulations promul
gated under it, for “ isolated cases” of racial discrimi
nation. McDonald r. Santa Fc Trail Transportation
Co., 427 U.S. 272, 281 n.S (197G) ; McDonnell Donpias
Corp. r. Green, 411 U.S. 792, SOI (1973).
Despite the University’s contention in the court
below, the Title V I regulations do not authorize the
instant quota system. The University specifically re
lied upon 15 C.F.R. Sections SO.3(b)(0) and S0.5(j),
notwithstanding the fact that these provisions were
adopted bv I1FW after Rakke's 1973 rejection.1' Sec
tion 80.3(b)(0) provides that a recipient “ even in the
absence of . . . prior discrimination” may take “ affir
mative action” to overcome the effects of conditions
which resulted in limiting participation of persons of
a particular race, color, or national origin. Section
'•-•Tim ri-uhit inns appearin'; fit 45 fl.F.U. .Sections SO.l(h)fG)
mid M).5( j) became effective on Au-ust (i. 11)71. -is Fed. lie-.
17!)7f)-S2 (1071). Petitioner rejected Itakke's application almost
three months earlier, on -May 14, 11)71. It. 25G.
31
SO.b(j) provides some indication as to tlic types of
permissible affirmative action:
“ Even though an applicant or recipient lias never
used discriminatory policies, tin* services and ben
efits of the program or activity it administers
may not in fact be equally available to sour* ra
cial nor nationality groups. In such circum
stances, an applicant or recipient may properly
give special consideration to race, color, or na
tional origin to make the benefits of its program
more widely available to such groups, not then
being adequately served. For example, where a
university is not adequately serving members of a
particular racial or nationality group, it may es
tablish special rcrrr.ilincut policies to make* its
program better known and more readily available
to such group, and take other step* to pro
vide that group with more adequate sendee.” 4b
C.F.R. §S0.b(j) (emphasis added).
References in the regulation to “ recruitment" and
“ other steps” do not assist petitioner. Indeed, the
recruitment of minority persons was suggested as an
alternative by the court below and is in no way incon
sistent with the court’s condemnation of the Univer
sity's special admission program. See 18 Cal. 3d at
55. “ Other steps” is a vague and undefined term: if
interpreted to include a quota admission system, it
would simply violate the express prohibition of other,
earlier adopted HEW regulations'" and, more im- * 2
*'■•/•be.. 45 C.F.R. ys0.3i b) (1 I (v). This regulation, cited at pp.
2. sniirti, was adopted on December ft, l!)li-t, approximately
fiv* months alter thi' enactment of Section 2000d. Sir 29 Fed. Re^.
1029!) (1904).
35
portautly, would contradict the nondiscriminatory
command of Section 20()()d itself.1'
IIEW simply docs not have the power to rewrite
Title YE As the Court lias made eiear on numerous
occasions, regulatory power conferred by statute,
••is not the power to make law— for no such
power can be delegated by Congress—but the
power to adopt regulations to carry into effect
the will of Congress as expressed by the statute.
A regulation which does not do this, but operates
to create a rule out of harmony with the statute,
is a mere nullity.” Manhattan G< nerii! Equip
ment Co. r. Commissioner, 2!)7 U.S. 129, 134
(193fi).
See also Espinoza r. Eurah JIl</. Co., 414 L .8). Sb,
94-95 (1973): Moitniiuij r. Finnili/ Puhlienlions Serv
ice, hie., 411 E.S. 35fi. 3b9 (1973,); Mill-r r. I'nitcd
Stoles, 294 U.S. 43b, 439-10 (193b): f./pieli r. Tilth n
Produce Co., 2bb U.S. 31b, 3,20-22 (1924). Thus,
a particular THAN regulation, such as 4> C.F.R.
Section SO.b(.j), “ does not, and could not. alter the
statute.” Di.ron r. i'uittd States, 381 L .S. 74-7b
(19bb).
Although there may be a wide variety of “ affirma
tive action” measures available to petitioner in making
the benefits of its medical school more widely avail-
o p is import.-itit to note that tin* regulations upon which the
Fnivcisitv relic,l were adopted almost nine years after the
original enactment of Section 2000(1. Sa note 45. )»/</■</. The
Court has held that such regulations are entitled to little weight
in interpreting a statute, particularly when they contradict “ the
position which the agency had enunciated at an earlier date,
closer to the enactment of the governing statute.” ficneral Elec
tric Co. v. (filbert, 429 L'.S. 125. 142 (1970).
3G
able, racial quotas are not among- them. The regula
tions under the statute are to this effect, but even if
there were any ambiguity in the regulations, that am
biguity must be resolved in favor of the statutory
command of nondiscrimination.4’
D. Recent Judicial Decisions Support the Conclusion that Pe
titioner's Special Admission Program is Unlawful.
V e have noted above some of the decisions of this
Court which trace the legislative history of the Civil
Rights Act of 1964. Those cases set forth in plain
and unequivocal language the statutory policy of non
discrimination. Recent decisions of federal courts
follow this policy and reveal that a racial preference
program, even if administered in the name of “ affir
mative action” , nevertheless contravenes Title VI.
In Flanagan v. President and Directors of George
town College, -117 F. Supp. 377 (D.D.C. 1976), for
example, the plaintiff complained that in applying for
financial aid at Georgetown Law Center, he was sub
jected to different requirements and ultimately per
mitted to obtain a lesser amount of financial aid than
similarly situated minority students. The apportion
“ Indeod, there is an indication from HEW itself in the instant
record that racial quotas are invalid. In a letter written to the.
Chancellor of the University of California, Davis, following the
filing of Bathe's IIKW complaint (see noted!), supra), tin* hYoion.nl
Director of the local JIKW Office for Civil Rights noted that lie had
received information indicating that there were ‘ high quotas
for minorities'’ at the Davis campus. The letter goes on to state:
“ This | the quota policy | . . . seems to reflect Urnversiim
policy. While it is our purpose, to insure equal, opportunitv,
we tire concern'd that well-intentioned ujjirmutivu m lion
efforts not be implnm nted in such a win/ as to promote
or result in am/ form of discrimination prohibited bp law.”
If. 270 (emphasis added).
37
ment of funds between minority and nonminority stu
dents was on a 60-40 basis. The District Court ruled
that the school’s financial aid program violated Title
V I and commented that:
“ While an affirmative action program may be
appropriate to ensure that a 11 persons are af
forded the same opportunity or are considered
for benefits on the same basis, it is not permissi
ble when it allocates a scarce resource (bo it .jobs,
housing, or financial aid) in favor of one race to
the detriment, of others.” 417 F.-Supp. at 384.
The case of Uzzcll r. Friday, 547 F.2d 801 (4th C'ir.
1977), is to the same effect. In that case, the Fourth
Circuit sustained a complaint that certain rules guar
anteeing a minimum racial representation on the
Campus Governing Council and on the Student II.-nor
Court at the University of Xortli Carolina violated the
Fourteenth Amendment, the Civil Rights Act of 187L
(42 U.S.C. §1983), and Title VTA The court stated:
“ This form of constituency blatantly fouls the
letter and the spirit of both the Civil Rights Acts
and the Fourteenth Amendment. A reading of
them, particularly Section -JOOOd, is all that is
needed for authentication of this conclusion.” 547
F.2d at 804 (emphasis added).
“ The mles at issue in I'zzrlt required th.it the Campus Dove ru
ing (,’oimeil he composed of "at least two councillors of a minority
race within the student body” and that in the event that an annual
election does not produce such representation, “ tlu- President of
the Student Body, with the consent of the Council, shall make the
number of appointments necessary to insure compliance’’ with de
regulation. Tin* regulations governing the Student Honor Court
provided that an accused had the right to request that lour of
the seven judges on the trial bench of an honor court be of his
or her race or sex. 547 F.'Jcl at S04.
38
Tu another case. Anderson v. San Francisco Fni'ficd
School District, 357 F. Supp. 248 (X.D.Cal. 1972), a
Di.striet Coui-t confronted a so-called “ affirmative ac
tion” plan, designed to make certain an increase in the
hiring and promotion of minority school administra
tors. Pursuant to the plan, the school authorities set
specific hiring and promotion “ goals” and “ targets” .
The only way to meet the specified figures, however,
was for the school district to hire and promote only
minority candidates, while refusing to appoint or
advance any nonminority candidates. The court struck
down the program as violative of Section 2000d.
“ Preferential treatment under the guise of
‘affirmative action’ is the imposition of one form
of racial discrimination in place of another. The
questions that must be asked in this regard are:
must an individual sacrifice his right to he judged
on his own merit by accepting discrimination
based solely on the color of his skin ? ITow can we
achieve the goal of equal opportunity for all if,
in the process, we deny equal opportunity to
some?” 357 F.Supp. at 249.
These decisions support the conclusion that peti
tioner’s racial quota admission policy violates Title
VI. The quota, which forced Allan Bakke to be ex
cluded from the Davis Medical School, “ blatantly
fouls tin' letter and the spirit” of the statute.
CONCLUSION
Allan Bakke has a right not to be discriminated
against because of Ins race. As we explained in out-
opening brief, the court below relied upon the
Fourteenth Amendment as its basis for ruling peti-
39
tinner's quota system to be invalid and, consequently,
as its basis for admitting Bakke to the Davis Medical
School.
Title V I of the Civil Bights Act of 19b4 is an al
ternate ground for granting the same relief. Title V I
has been part of this case from the outset and is
available to Bakke as a private remedy. It is prop
erly before the Court, and there are no circumstances
which need Inhibit the Court from availing itself of
this statutory ground.
In one very important sense this congressional en
actment may constitute a more forceful ground for
deciding the case. Its language respecting admission
into a Federally funded program is plain, direct, and
not susceptible of varying interpretations. It simply
prohibits any discrimination on the basis of race,
color, or national origin. Its express language thus
bars petitioner's quota and invalidates Bakke's exclu
sion from petitioner's medical school. i
The decision of the California Supreme Court
should be affirmed.
Respectfully submitted,
R uyxold ] I. Colvin ,
R oiu.lt I). L in ks,
J acobs, Bf.AXCKKXBrnr;, M ay A Co l vix ,
Attorneys for Iicspondt >it.
November 1G, 1977.
3 it lire ©ujm'im1 (Sm ut
OK Tllli
3!luifrii ^Jatexi
O c T o m . i t T i .h m , I07G
I
No. 7 6 -8 1 1
Tin: R i:<si:\ t s <m- t i i i : U n i v k k s i t y ok (1 a i .ikoii v i a ,
I'd il inn/'r,
vs.
Af.l .AN 11a KKK,
h'rsjmntlnil.
On Petition for a V/rit of Certiorari to the,
Suiircme Court of California
[llv‘ini? POR RESPONDENT IN OPPOSITION * III
JlK.VNOr.l) 1 r. Coi.VtN,
JioiiiiitT 1). L i n k s ,
•J a cons, lir.ANOKKNiu i:o, ]\l.w & C om x,
III Sutler Street, Suite 1000.
Sun Ffancisco, California 9110-1.
Coirnsrl for IkCsjiondnil.
January G, 1077.
kluhau-waluii i-kiniinc co. - sua mission stullr • san fiiaiicicco. ca onoa
4
percentile (verbal), 94th percentile (quantitative),
97th percentile (science) and in the 72nd percentile
(general information) (CT 115).
In 1973 and 1971 Bakkc duly and timely submitted
his application to the medical school for admission to
the classes of 1977 and 1978, respectively (CT 387).
Admission to The Davis Medical School
Petitioner, faced with the annual task of selecting
an entering class of 100 students, has established not
one, hut two, admission committees. For the most
part, the committees act independently of one another,
apply different standards to the particular candidates
they scrutinize and, ultimately, select students for the
first year class whose qualifications differ markedly
depending upon which committee considers their
applications.
One of these committees, the regular admission
committee, selects 81 of the 100 members o( the first
year class. The other committee, known commonly as
the “ task force committee” or “special admission com
mittee”, selects the remaining 16 members and bases
its selection upon substantially lower requirements
than does the regular committee. The specific differ
ences in the standards, and the results of their appli
cation, are discussed below.
The Regular Admission Procedure
The regular admission procedure is conducted as
follows:
(1) To he considered for admission, a candi
date must submit his application to the medical
5
school between July and December of the ac
ademic year preceding the year for which admis
sion is sought (CT 119, 248).
(2) Normally the regular admission commit
tee reviews the applications to select certain in
dividuals for further consideration. Once the
committee has conducted this initial screening,
the applicants selected are scheduled for personal
interviews. The minimum standard adopted by
petitioner provides that no student will be inter
viewed by the admission committee if he or she
has an overall grade point average (OQPA) be
low 2.5 on a scale of 4.0 (CT 63, 150-151).
(3) In 1973 the interview procedure provided
for one of the faculty members of the admission
committee to interview each applicant. In 1971
applicants were interviewed twice, once by a fac
ulty member and once by a student member of
the committee (Id.).
(4) Following the interview, each applicant
is rated by the various admission committee
members. Taken into consideration for rating
purposes are the interview summary prepared by
the interviewer(s), the applicant's overall grade
point average (OQPA), grade point avirfige in
science courses (SGPA), medical college admis
sions test score (kICAT) and other biogiaphical
information in the applicant’s tile, such as a
description of extra curricular activities, work
experience, a personal statement of reasons for
wanting to attend medical school, and letters ol:
recommendation (CT 62-63, 155-159).
The committee members rate each applicant on a
scale of from 0 to 100. The ratings are then added
I
Subject Index
Page
Opinions below ............................................................................
Jurisdiction ..................................................................................
Question presented ....................................................................
Constitutional provision involved ............................................
Counterstatcinent of the case ...................................................
Bakkc’s application .............................................................
Admission to the Davis Medical School .........................
■ The regular admission procedure ....................................
Bakkc’s interview and rating ............................................
The special admission program ........................................
The discriminatory results of the special admission
program ............................................................................
Proceedings in the trial court ..........................................
Proceedings on appeal .......................................................
Reasons for denying the writ .................................................
Petitioner has incorrectly stated the case .......................
There is no conflict between state court decisions ........
The California Supreme Court correctly decided this
case ...................................................................................
Conclusion ...................................................................................
1
2
2
2
2
3
4
4
G
8
10
13
1G
20
20
23
28
34
I
I ■' i
Table of Authorities Cited
Cases Pages
Alevy v. Downslate Medical Center, 39 N.Y.2d 32G (197G)
78 Misc.2d 1089 (Sup.Ct.) ................................ 23,24,25,30,31
American Party of Texas v. White, 415 U.S. 7G7 (1974).. .32, 33
Bridgeport Guardians, Ine. v. Members of The Bridgeport
Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973),
cert, denied 421 U.S. 991 (1975) 27
Table ok Authorities Citedii
Pages
Cassel v. Texas, 339 U.S. ‘282 (1950) .................................. 29
DeFunis v. Odcgaard, 82 \Vash.2d 11 (1973) ....23,21,25,30,31
DeFunis v. Odcgaard, 411 11.S. 1038 (1973), 416 U.S. 31
(1974) ^
DeFunis v. Odegnard, 84 Wnsli.2d 617 (1974) ................... 23
Dunn v. IMuinstein, 405 IJ.S. 330 (1972) ......................... 31,32,33
Flanagan v. President and Directors of Georgetown College,
417 F.Supp. 377 (D.D.C. 1976) .........................................26,27
Hughes v. Superior Court, 339 U.S. 460 (1950) ............... 29
Ligc v. Town of Montclair, ..... N.J........ (No. A-107, Slip
Opinion filed November 30, 1976) .....................................27,28
Loving v. Virginia, 388 U.S. 1 (1967) ................................ 31
McDonald v. Santa Fe Trail Transportation Co., ..... U.S.
.., 49 L.Ed.2d 493, 96 S.Ct. ..... (1976) ......................... 33
McLaughlin v. Florida, 379 U.S. 184 (1964) ..................... 31
Shelley v. Kracmer, 334 U.S. 1 (1948) ................................ 29
Constitutions
California Constitution, Art. I, Sec. 21 ................................ 13,15
United States Constitution, Fourteenth Amendment .........
................................................................................2,13,15,33,34
Statutes
Federal Civil Eights Act of 1961 (42 U.S.C.):
Section 1981 ...............................................
Section 2000(d) ..........................................
Title VI .......................................................
Title VII .....................................................
33
13,15
26
33
Texts
DeFunis Symposium, 75 Colum. L. Itev. 483 (1975) ......... 23
3 tt tljf §>u)tn'nu' Qlmtrl
OF T H E
l u i t c b
O ctorer T erm , 1976
No. 76-811
T he R egents of th e U niversity' of C alifornia,
Petitioner,
vs.
A llan B akke ,
Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of California
BRIEF for respondent in opposition
Respondent Allan Bakke opposes the petition of
The Regents of the University of California for a
writ o f certiorari to review the opinion, as modified,
and judgment of the Supreme Court of California
entered in this case on October 28, 1976.
OPINIONS BELOW
The opinion of the California Supreme Court and
the modification thereof, as well as the opinions, find
9
ings of fact and conclusions of law and judgment of
the state trial court are adequately set forth and in
dexed in the petition.
JURISDICTION
The jurisdictional requisites are adequately set
forth in the petition.
QUESTION PRESENTED
Is Allan Bakke denied the equal protection of the
laws in contravention of the Fourteenth Amendment
to the United States Constitution when he is excluded
from a state operated medical school solely because
o f his race as the result of a racial quota admission
policy which guarantees the admission of a fixed num
ber of “minority” persons who are judged apart from
and permitted to meet lower standards of admission
than Bakke 7
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States
Constitution provides in pertinent part: “ . . . nor
shall any State . . . deny to any person within its
jurisdiction the equal protection o f the laws.”
COUNTERSTATMENT OF THE CASE
The primary issue in this case is Allan Bakke’s
right to be admitted to the medical school maintained
by petitioner at the University of California at Davis
3
( “ the medical school” ) as well as the constitutionality
of petitioner’s procedure for selecting students to
attend the medical school.
Bakke’s Application
Allan Bakke graduated from the University of
Minnesota in 1962 with a Bachelor of Science degree
in mechanical engineering. After receiving his degree,
he did graduate work in mechanical engineering at
the University of Minnesota for a year and then
served for four years in the United States Marine
Corps. While in’ the service, Bakke began to inquire
about the possibility o f attending medical school.
After completing his military service, he attended
Stanford University and, in June of 1970, received
his Master of Science degree in mechanical engineer
ing. While studying for his master’s degree, and foi'
some time thereafter, Bakke completed the various
courses that are prerequisites to a medical education
(CT 112-116) .*
Bakke’s overall undergraduate grade point, average
(O G PA) is 3.51 on a scale of 4.0 (CT 115). TIis grade
point average in the sciences (SO FA ) is 3.45 (h t.).
Upon graduation he was elected to P i Tail Sigma,
the national mechanical engineering honor society
(CT 113).
Bakke took the Medical College Admissions Test
(M CAT), which is divided into four sections (verbal,
quantitative, science and general information) and is
scored on a percentile basis. ITc scored in the 96th
_ m OT” references arc to pages in the Clerk’s Transcript on
Appeal, filed with the California Supreme Court.
6 0
together and the applicant’s total rating— in essence
the admission committee’s evaluation o f his or her
potential ability— is used as a “ benchmark” in the
selection of students (CT G3). In 1973 five committee
members rated each applicant; thus, the highest pos
sible rating for that year was a score o f 500. In 1974
six committee members rated each applicant and the
maximum possible total rating increased to GOO (Id.).
Biiklce’s Interview and Rating
In both 1973 and 1971 petitioner considered Bakke’s
application pursuant to the above-described proce
dure (CT 389).
In 1973, Dr. Theodore II. West interviewed Bakko
and concluded that:
“ [o]n the grounds of motivation, academic rec
ord, potential promise, endorsement by persons
capable of reasonable judgments, personal ap
pearance and demeanor, maturity and probable
contribution to balance in the class I believe that
Mr. Bakko must he considered as a very desir
able applicant to this medical school and 1 shall
so recommend him.” (CT 225)
A summary of Dr. West’s interview was circulated
among the members of the admission committee.
Bakko received a total rating of 4G8 out o f a possible
500 (CT 180). Although Bakke’s average rating was
93.G out of a possible 100, petitioner rejected his
application (CT 378).
Between the rejection of his 1973 application and
his second application in 1971, Bakko wrote to Dr.
George Lowrey, Associate Dean at the medical school
7
and Chairman of the Admission Committee, protest
ing the medical school’s admission program insofar as
it purported to grant a preferential admission quota
to members of certain racial and ethnic groups (C i
259).
After submitting his 1974 application, Bakke was
interviewed twice. One interview was with Mr. Drank
Gioia, a student member of the admission committee.
Mr Gioia found that Bakke “ expressed himself in a
free, articulate fashion,” that he was “ friendly, even-
tempered, conscientious and delightful to speak with
. . . ” and concluded that, “ I would give him a sound
recommendation for [a] medical career.” (CT 228-29)
Mr. Gioia gave Bakke an overall rating of 94 (C i
230).
The second interview was with Dr. Lowrey, who, b^
coincidence, was the person to whom Bakke had writ
ten in protest of the special admission program. Dr.
Lowrey and Bakke discussed many subjects during
the course of the interview, including the medigal
school’s decision to grant a preferential admission
quota to certain racial groups (CT 226). Apparently,
they disagreed over the merits of that, decision (III.)
In contrast to the two other persons who had inter
viewed Bakke, supra, Dr. Lowrey found him “ rather
limited in his approach” to problems of the medical
profession and said that, “ the disturbing feature o
this was that he had very definite opinions which
were based more on his personal viewpoints than
upon a study of tl.c total problem.” (CT 226) Dr.
Lowrey gave Bakko an overall rating ol 86 ( U JO ).
s
Other members o f the admission committee, after re
viewing these interview summaries as well as Bakke’s
overall file, rated him 9(5, 9-1, 92 and 87, for a total
rating o f 5-19 out o f a possible 600; Bakke’s average
rating on his second application was 91.2 (Id .).
Despite the fact that Bakke was “ qualified for ad
mission in each of the years he applied,” petitioner
rejected both of his applications (CT 390).
The Special Admission Program
At the same time it administers and maintains the
above-described regular admission procedure at the
medical school, petitioner also operates and maintains
at Davis a “ special admission program” * 3 which, in
petitioner’s words, purports to “ increase opportuni
ties in medical education for disadvantaged citizens.”
(CT 195-96) Although the University declares that
the program is for disadvantaged students regardless
of race (CT 61-66, 8 6 ), no definition of the term “ dis
advantaged” has ever been formulated (CT 163-61)
the program has been heavily staffed with minority
personnel (CT 162-63) and only minority applicants
have been admitted to the medical school through the
program (CT 168, 201-23 and 388).3
a'Phe special admission program is also known as the “ Task
Force program” and is so labelled in the petition.
3At trial and in the eonrt below, petitioner denied that race was
tbe pivotal factor in tbc special admission program (CT 30, (in,
75, SG). In light of tbe instant record, which confirms the exis
tence of a formal racial quota at tbe medical school (CT 388,
300), it is interesting to note that in its 1973-1971 Bulletin, dis-
tributed to Bakke and other potential applicants, petitioner states
without qualification that, “ Keligious preference and race are not
considered in tbe evaluation of an applicant.” 1973-1971 Bulletin
at 12.
The racial ,-i-»ta is almost as old as the medical
school i tself , l iie school opened in 1968 and the spe
cial admi—;nn program commenced only one year
later-, in September o f 1969. Since that time, peti
tioner annually has set aside and allotted to the pro
gram 16^t of the places in the first year class (C l
164, 168, 201-223 and 388).
Petitioner administers the special admission pro
gram as follows:
(1) Applicants are asked to indicate on their
applications whether or not they wish to be
considered for admission under the special
admission program. The 1973 application
form, prepared by the medical school, al
lowed an applicant to indicate whether or
not he or she wished to be considered
as an “ economically and/or educationally
disadvantaged” applicant. On the 1974
application form, prepared by the Amcri- «
can Medical College Application Service
(AM CAS), and used by slightly more than
half o f the medical schools in the coun
try, the pertinent question asks: “ Do yop
wish to be considered as a minority group
applicant?” (CT 146, 197, 232, and 292)'
According to petitioner’s published acV •
mission statistics, the word “ minority” in
cludes “ Blacks” , “ Asians” , “ Chicanos” , and
“ American Indians” . (CT 216-218)
(2) Once an applicant has indicated a desire to
considered under the special admission pro
gram, his application is evaluated by a spe
cial subcommittee, separate from the regular
admission committee (CT 388). This spe ll
10
cial subcommittee is composed of minority
and non-minority faculty members, and
students from only minority backgrounds
(CT 1 0 2 ). It conducts a separate screening-
procedure, parallel to that o f the regular
admission committee. (CT 04-00). The
special subcommittee however, is not bound
by tbe medical school standard that no stu
dent will be interviewed if his OGPA is
lower than 2.5. In 1973 and again in 1974,
minority students were interviewed and
admitted under the special admission pro
gram even though they possessed O CPA ’s
well below tbe 2.5 cut-off point (CT 388).
In 1973, minority students admitted under
tbe special program possessed overall grade
point averages as low as 2.11; in 1974
minority students were admitted to tbe
medical school with overall grade point
averages as low as 2.21 (Id . ; see also CT
210, 223).
(3) Following the interview, the special sub
committee assigns'tbe various special appli
cants an overall personal rating, similar to
tbe “ benchmark” procedure of the regular
admission committee (CT GO, 104). F i
nally, tbe special subcommittee recommends
to the regular admission committee various
candidates for admission to tbe medical
school (Id .). Tbe recommendations continue
to be made until tbe pre determined quota
o f 10 is tilled (CT 108).
The Discriminatory Results of the Special Admission Program
According to statistics published by petitioner, the
average applicant admitted under the special admis-
11
sion program possesses academic and other qualifica
tions inferior to those o f Bakke and o f the average
student admitted under the regular procedure (CT
at 388). The following chart summarizes tbe relation
ship of Bakkc’s qualifications to those of applicants
who are regularly admitted and to those o f applicants
admitted under tbe special admission program.
01as3 Entering in Fall, 1973
MCAT“
SGPA‘ OGPA5 Verb. Quan. Sci. Gen. Info.
Allan llakke 3.45 3.51 90 94 97 72
Average of
Regular Admittees
1
3.51 3.4 a 81 70 83 09
Average of
Special Admittees 2.02 2.88 40 24 35 33
Glass Entering In Fall, 1974
MOAT
SOFA OGPA * Verb. Quan. Sci. Gen. Info.
Allan llakke 3.45 3.51 90 94 97 72
Average of
Regular Admittees 3.30 3.29 G9 07 82, 72
Average of
Special Admittees ^ 2.42 7. 2 02 34 30
<
37 18’
l
. The above chart contains only statistics relating to
.flV. grade point averages and MCAT scores. Also codsid-
ered in tbe admission process, as previously men-
________
■‘Undergraduate grade point average in science courses.
“Overall undergraduate grade point average.
“Medical College Admissions Test; the MCAT, as noted pre
viously, is subdivided into four sections: Verbal (Verb.), Quanti
tative (Quan.), Science (Set), and General Information (Gen.
Info.).
’ The iigurcs continued in this chart for the special ndmittees,
like the figures contained for the regular admittccs, represent
avenuje scores and do not indicate the highest or lowest achieve
ments of either group (CT 210, 223).
12
tioned, is the personal interview, which provides a
further basis for the “ benchmark” personal rating-
given eacli special applicant. The benchmark rating-
takes into consideration both OCSPA, SOFA, MOAT
scores, the interview summary, and, in addition, other
background data in the applicant’s file, such as the
particular details of a “ disadvantaged” background
(CT G3-6G). Even with this rating procedure, de
signed to give the special applicants credit for over
coming “ disadvantage” , applicants admitted under
the special program possessed overall ratings below
those of students rejected under the regular admis
sion procedure. Indeed, petitioner admits that some
of the special admittees received overall ratings of as
much as 30 points below Balcke’s rating (CT 381,
388).
These facts establish that the special admission pro
gram is designed to grant, and in fact does grant, a
preferential admission quota to members of certain
racial and ethnic groups (CT 388-390). Petitioner
never has defined the term “ educationally disadvan
taged” , or the term “ economically disadvantaged”
(CT at 1G3). On the facts of this case, however, these
terms arc synonymous with “ member o f a minority
group” for, as stated above, only minority applicants,
and no non-minority applicants, are admitted to the
medical school under the special admission program
(CT 388).
Thus petitioner’s special admission program is
based upon race. The 1G% allotment to the program
of places in the first year class at the medical school
13
constitutes a racial quota of 1 G°/o. Under the program,
minority applicants are judged apart from, and are
allowed to satisfy lower standards than, Bakke and
other non-minority applicants; they are also guaran
teed at least 1 G places in each entering class (CT
1G4-1G8, 388, 390).
Proceedings in the Trial Court
Following the rejection of his 1974 application,
Bakke instituted this action. Specifically, lie alleged
that he is qualified in every respect to attend the
Davis Medical School; that petitioner, by virtue of
its maintenance and operation of the special admis
sion program, has discriminated against him on the
basis o f his race and in violation of the Fourteenth
Amendment to the United States Constitution, the
Privileges and Immunities Clause of the California .
Constitution (Article I, Section 21), as well as the
Federal Civil Rights Act of 19G4 (42 U.S.C. § 2000
(d )) ; and finally, that because of this unconstitutional
discrimination, petitioner denied him admission to the
medical school. Bakke prayed for the court to issue,
an Alternative W rit o f Mandate, an Order to Shoy ,
Cause, and to enter its judgment declaring that he is
entitled to admission to the medical school and that
petitioner is lawfully obligated to so admit him (CT
1-5).
Petitioner denied the above allegations and cross-
complained for a declaration as to the legality of the
special admission program (CT 24-31).
On August 5, 1974 the trial court issued an Alter
native W rit of Mandate, ordering petitioner to admit
u
respondeat to the medical school or, alternatively, to
appeal' and show cause why the writ had not been
complied with; at the same time, the court issued an
Order to Show Cause, directing petitioner to appear
before the court and show cause why it should not he
enjoined pendente iitc tor refusing to admit Bakke
to the medical school (CT 31-37).
On September 27, 1971 the trial court heard argu
ment on the Order to Show Cause and Alternative
Writ of Mandate. Counsel for both parties stipulated
that the hearing would also constitute a full hearing
of the case on the merits. Following oral argument,
the trial court ordered the case submitted (CT 282).
On November 2b, 11)71 the court filed its Notice of
Intended Decision, declaring that the special admis
sion program is unconstitutional (CT 286-308).
Both parties prepared proposed Findings o f Fact
and Conclusions o f Law, as well as a proposed J udg
ment (CT 315-380). Following a further hearing on
the matter, held February 5, 1975, the trial court pro
ceeded to draft its own Findings and Conclusions
(CT 376) and, on March 7, 1975, filed its Findings,
Conclusions and Judgment in this case (CT 377-391).
The trial court specifically found as a matter of
fact that,
“ [t]he special admissions program purports to
be open to ‘ educationally or economically dis
advantaged’ students. In fluT years in which
[Bakke] applied for admission, the. medical
school received applications for the special ad
missions program from white students as well as
from members from minority races, but no white
15
students were admitted through this special pro
gram in either of said years. In fact no white
student lias been admitted under this program
since its inception in 1969. In practice this spe
cial admissions program is open only to members
of minority races and members o f the white race
are barred from participation therein. In each of
the two years in which [Bakke] applied for ad
mission [petitioner] set a pre-determined quota
o f 16 to be admitted through the special admis
sions program. This special admissions program
discriminates in favor of members o f minority
races and against members of the white race,
[Bakke], and other applicants under the general
admissions program . . . ” (CT 387-388).
The trial court concluded that the special admis
sion program at the Davis Medical School violated
Bakke’s rights under the Fourteenth Amendment to •
the United States Constitution, the Privileges and
Immunities Clause of the California Constitution
(Article I, Section 21) and the Federal Civil Rights
Act o f 1961 (12 U.S.C. Section 2000 (d )) (CT 390).
In paragraph 2 o f the Judgment, the trial court
ruled that:
“ [Bakke] is entitled to have his application for
admission to the medical school considered with
out regard to his race or the race of any othoi
' applicant, and [petitioner is] hereby restrained
and enjoined from considering [Bakke’s] race or
the race of any other applicant in passing upon
his application for admission . . . •” (C l 391)
The trial court also awarded Bakke his court costs,
but refused to enjoin the operation ol: the special
16
admission program or to order Bakke’s admission to
the medical school. Id.
After the entry of judgment in this case, Bakke’s
counsel requested that petitioner consider the re
submission o f Bakke’s application for admission to
the medical school pursuant to paragraph 2 of the
Judgment. Petitioner's counsel responded that the
University would consider such an application as it
would “ any oilier such application received at this
late date.” Petitioners’ counsel later added that the
medical school would only consider Bakke’s appli
cation “ in the normal course and without reference
to paragraph 2 o f the judgment . . . (CT 408-414)
Proceedings on Appeal
On March 20, 1075 petitioner filed a Notice of
Appeal from those parts of the Judgment holding the
special admission program unconstitutional, requiring
petitioner to judge Bakke’s application without re
gard to his race or the race of any other person, and
awarding Bakke his costs of litigation (CT 398-290).
Subsequent to the preparation of the Clerk’s Tran
script on Appeal, and on April 18, 1975, Bakke filed
a Notice of Cross Appeal from that part o f the Judg
ment denying his admission to the medical school. 18
Cal.3 d at 39. Finally, while this case was pending
in the California Court of Appeal for the Third Ap
pellate District, the Supreme Court of California
granted the University’s Petition for Transfer and
accepted the case for direct review. Id.
On September 16, 1976 the California Supreme
Court issued its opinion in this case. The court, after
17
reviewing the facts of the case and the importance of
the constitutional questions presented for decision (18
Cal.3d at 38-45), proceeded to consider, first, the
appropriate standard of review to be used in deter
mining whether the special admission program vio
lates the Equal Protection Clause mid, second,
whether the program meets the requirements o f the
applicable test.“ 18 Cal.3d at 49.
The court concluded that in a case such as this one,
where the state has imposed a classification basedi
upon race:
“ . . . not only must the purpose of the classifica
tion serve a ‘compelling state interest’ but it must
be demonstrated by rigid scrutiny that there are
no reasonable ways to achieve the state’s goals by
means which impose a lesser limitation on the ,
rights of the group disadvantaged by the classi
fication. The burden in both respects is upon the
government. (E.g., JDwnn v. Blumstein (1972)
405 U.S, 330, 342-343; Loving v. Virginia (1967)
388 U.S. 1, 11; McLaughlin v. Florida (1964)
379 U.S. 184, 192-193.)” 18 Cal.3d at 49. ‘
As to the second half of the inquiry, the California
Supreme Court assumed, arguendo, that some of the
objectives" of the special admission program “ meet
8Tlic court below specifically based iti holding on federal con
stitutional grounds. IS Cal.3d at G>1. ^
“The court below flatly rejected certain of petitioner s claims,
such ns the University’s assertion that minority individuals would
have a greater rapport with doctors of their own race and that
Black doctors would have a greater interest in treating diseases
prevalent among Blacks. “ The record contains no evidence o
justify the parochialism implicit in the latter assertion; and as to
the former we cite as eloquent refutation to racial exclusivity the
comment of Justice Douglas in his dissenting opinion in Debums:
the exacting standards required to uphold the validity
o f a racial classification insofar as they establish a
compelling governmental interest.” 18 Cal.3d at 53.
The court, however, held that the University had not
satisfied its burden of justifying the racial means
employed to achieve the goals of the piogiam.
“ [W ]c tire not convinced that the Uni
versity has met its burden of demonstrating that
the basic goals o f the program cannot be sub
stantially achieved by means less detrimental to
tbe rights of the majority.” 18 Cal.3d at 53.
The court did not prevent the University from
formulating a special admission program based upon
disadvantage. Indeed, the court’s opinion encourages
such a procedure:
“ In short, the standards for admission em
ployed by the University are not constitutionally
infirm except to the extent that they are utilized
in a racially discriminatory manner. Disadvan
taged applicants of all races must be eligible for
, sympathetic consideration, and no applicant may
be rejected because o f his race, in favor of an
other who is less qualified, as measured by stan
dards applied without regard to race. W e reiter
ate . . . that we do not compel the University to
utilize only The highest objective academic cre
dentials’ as the criterion for admission.” 18
Cal.3d at 55.
‘ Tlu> Hiiunl Protection Clause commands the elimination of racial
harriers, not their creation in order to satisfy our theory as to
how society ought to he organized. The purpose ot the University
of Washington cannot he to produce black lawyers lor blacks,
Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers
for Irish. It should he to produce good lawyers for Americans.
18 Cal.3d at 53.
19
The court did not guarantee that alternative meas
ures would result in the enrollment of precisely the
same number of minority students as under the racial
quota. 18 Cal.3d at 5G. The court’s conclusion was
that the University had not established that the spe
cial admission program at issue “ is the least intrusive
or even the most effective means to achieve this goal.
18 Cal.3d at 56.
The California Supreme Court also ruled that, inso
far as Bakke’s right to be admitted to the medical
school is concerned, the University bears the burden
of proving that Bakke would not have been admitted
had there been no racial quota. 18 Cal.3d at 63-6-1.
The case was remanded to the trial court lor the pur
pose of determining, under the proper allocation of
the burden of proof, whether Bakke would have been(
admitted to the medical school absent this special
admission program. 18 Cal.3d at 64.
The University filed a Petition for Itehearipg,
which included a request for a stay, and it stipulated
that, given Bakke’s academic credentials and his higl\
“ benehmavk” rating, the University could not sustain,
its burden of proving that he would not have been
admitted had there been no racial quota.
The California Supreme Court denied the Petition
for Rehearing and denied the application for a stay.
Petition for W rit of Certiorari, Appendix B, at
71)a. In view of the University’s stipulation, bowcier,
the court below modified its initial opinion to direct
that Bakke be admitted to the medical school. 18
Cal.3d 252b.
20
On November 15, 1970, this Court granted for a
period o f thirty days the University’s application for
a stay of the execution and enforcement o f the man
date of the California Supreme Court. The Court’s
order granting the stay provides that if a petition
for a writ of certiorari is filed within the thirty day
period, the stay is to remain in effect pending the
disposition o f the case by Ibis Couid.
REASONS FOR DENYING THE WRIT
There are three basic reasons for denying certiorari
in this case. First, petitioner has incorrectly stated
the facts o f the case, distorted the holding of the
California Supreme Court, and failed to demonstrate
that anyone has been deprived o f a constitutional
right as a result of the decision below. Thus peti
tioner has not shown a sound basis upon which cer
tiorari can l)e granted. Second, the alleged conflict
between the decision herein and the decisions of other
state courts is, upon analysis, not a true conflict
meriting resolution by Ibis Court. Third and finally,
the California Supreme Court correctly decided this
case and did so by way o f a reasoned application of
Ibis Court’s prior constitutional decisions. For these
reasons, the Court should deny certiorari in this case.
PETITIONER IIAS INOORREOTLY STATED TIIE CASE
In its petition for writ of certiorari, the University
asserts that the persons admitted to the medical school
under the special admission program were all “ fully
qualified io meet the requirements of a medical edu
cation at Davis.” Petition at 8 . Such a claim is at
21
odds with the facts of this case. The evidence clearly
reveals that the school’s one firm admission stand
ard—no applicant will be interviewed if he or she
possesses a grade point average below 2.5—is not
applied by the special admission committee. In 1973,
minority persons entered the medical school through
the special program even though they possessed grade
point averages as low as 2.11. In 1974, special ad-
mittccs entered the medical school while possessing
grade point averages as low as 2.21. Moreover, Dr.
Lowrey, chairman, o f the regular admission commit
tee, states flatly with respect to MCAT percentile
rankings:
“ I think most of us who are doing the screen
ing have been on admissions committees long
enough. We put some value on a percentile of
where this score of that particular individual
lies and I suspect most of us would look very
hard at other things that would be very positive
for that individual if he scored lower than 50 in
science and verbal ability.” (CT 153 [emphasis'
added]) »
Despite this rule, the average student admitted1 '*
under the special admission program in 1973 placed
in the 35th percentile (science} and in the 4Gth per
centile (verbal ability). The averages dropped even
lower in 1971 when fhe average was in the. 37th per
centile (science) and in the 34th percentile (verbal
ability).
Furthermore, according to the University’s overall
“ benchmark” personal rating system, which is em
ployed by both admission committees and which repre-
22
sents a comprehensive appraisal o f the potential
ability o f individual applicants, persons approved by
the special committee possessed scores markedly below
Bakkc. In short, persons admitted under the special
admission program in no way satisfy the medical
school’s own minimum admission criteria.
Petitioner has ignored this undisputed evidence
and, in so doing, has sought to undermine the firm
factual foundation o f the opinion below. The attack
on the California Supreme Court decision, however,
is not limited to the facts o f the case. Petitioner also
disputes the court’s legal analysis. A serious flaw in
the petition, however, is that the University docs not
claim that it has been deprived o f any constitutional
rights. Instead, the University contends that the
highest court o f California has sanctioned the aban
donment o f minority students and has called for
virtually all-white student bodies at professional
schools all across the country. Petition at 4 . In so
arguing, petitioner misconstrues the holding o f the
California Supreme Court. The University has nei
ther been empowered to discriminate against minority
persons, nor constrained to judge applicants for ad
mission solely on the basis of objective criteria, such
as grades and tests scores. The court below encour
aged the University to use flexible standards in its
admission procedure and stated clearly that the Uni
versity could, and should, consider the “ disadvan
taged” situations o f its applicants. 18 Cal.3d at 5 5 .
The only limitation placed on the University is one
consistent with the Constitution and previous deci
23
sions o f this Court; namely, that the University
cannot employ race as the yardstick, or racial dis
crimination as the mechanism, for deciding who may
attend the Davis Medical School.
THERE IS NO CONFLICT BETWEEN STATE COURT DECISIONS
As a further ground for seeking certiorari, peti
tioner claims that the Court must resolve an asserted
conflict between the decision in this case and the de
cisions o f two other state courts. The two “ conflict
ing” cases are DeFunis v. Odegaard, 82 Wash .2d 11
(1973)10 and a recent case from the state o f New
York, Alevy v. Downstatc Medical Center, 39 N.Y.2d
326 (1976). Petitioner represents that these two cases,
and the opinion below, “ exhibit substantial confusion
as to the controlling standards under the Equal Pro- ,
tection Clause.” Petition at 14. A study of DeFunis
and Alevy reveals that they do not conflict with the
decision herein. Neither adopts a legal test o f consti
tutionality different from that employed by the Cali
fornia Supreme Court, and neither sanctions the use(
of a preferential racial quota. ^
The California Supreme Court followed certain
basic legal steps set forth in DeFunis. Both the
California and Washington Supreme Courts ruled
that so-called “ benign” discrimination is “ certainly
not benign with respect to non-minority students who
‘ “The subsequent history of the DeFunis ease, ceil, yiuntcd 414
U.S. 1038 (1073), vacated as moot 410 CI.S. 312 (1074) is well
chronicled. See, c.g., DeFunis Symposium, 75 Colum. h. Ucv. 483
(1075). It is important to note I hat the Washington Supreme
Court decision in DeFunis was not reinstated upon remand from
this Court. 81 Wash.2d C17 (1074).
24
are displaced by it.” 18 Cal.3d at 48, n. 12; DcFunis
v. Odeejaanl, supra, 82 Wnsh.2d at 82. Both courts
also applied the “ compelling state interest” test to the
racial program at issue and placed the burden of
proof upon the school that had implemented the spe
cial admission program. 18 Cal.3d at 49, 52; 82 Wash.
2d at 32. Both courts rejected the “ rational basis”
test, commonly applied in non-racial eases. Id.
The California Supreme Court, after noting the
existence of a racial quota and the University’s fail
ure to carry its burden of demonstrating that the
“ objectives o f the program cannot reasonably be
achieved by some means which impose a lesser burden
on the rights of the majority,” declared the special
admission program unconstitutional. 18 Cal.3d at
60, 64. 'I’ lie "Washington Supreme Court reached a
different result, but did not do so because it selected
a different test of constitutionality.
The other case cited by petitioner is Alevy v. Down-
state Medical Center, supra, 39 N.Y.2d 326. In terms
of legal analysis, the Alevy court did not find it nec-
essaiy to reach the ultimate constitutional issue. The
New York Court of Appeal concluded from the evi
dence that the plaintiff would not have been admitted
to the Downstate Medical Center had there been no
special admission program. “ [Tjhus,” said the court,
“ the petition should be dismissed.” 39 N.Y.2d at 338.
Prior to reaching that conclusion, the court engaged
in a dicta discussion regarding the appropriate ju
dicial standard of review in a case o f so-called “ re
verse discrimination.” 39 N.Y.2d at 331-37.
25
The Alevy court’s dicta, however, does not conflict
with the holding of the California Supreme Court.
Although it may not have used the familiar phrase
“ compelling state interest,” the Alevy court would
have required the Downstate Medical Center to jus
tify the special admission program by demonstrating
that “ a substantial interest underlies the iiolicy and
practice and, further, that no non-racial, or less ob
jectionable racial, classifications will serve the same
purpose.” 39 N.Y.2d at 336-37 (emphasis added) . 11
Onican logically assume that, had the instant case
been presented to the Alevy court, it would have
struck down the Davis special admission program for
the same reason as did the California court: because
the University did not meet its burden o f proving
that the objectives o f the program could not be
achieved by less intrusive means. The California Su
preme Court thus commented in its opinion that the
difference between its holding and the language of
the New York Court of Appeal is “ more apparent
than real.” 18 Cal.3d at 60 n. 30.
I '
Moreover, neither DcFunis nor Alevy involved a
racial quota. 82 Wash.2d at 39; 39 N.Y.2d at 329-
31.1- The two cases are in this sense distinguishable * •
• ■Doth courts, il appears, would ropiirc the University to bear
the harden of justifying- the special admission program. The New
York court noted that, “ [WJhere preference policies are indulged,
the indulgent must he prepared to defend them.” 30 N.Y.2d at
33(i; compare 18 Gal.3d at 40.
• -The trial court in A levy noted: ‘ ‘ There is nothing in t he
record to indicate that acceptance of minority students hy |thc
school] was based solelv on race.” 78 Misc.2d 1080, 1001 (Sup.
Ct.).
26
from the instant case. The quota at issue herein
grants a racial preference and guarantees admission
to the medical school based upon group membership.
No ease supports the use of a racial quota to govern
admission to professional school. The Court below
recognized, and condemned, the evil inherent in the
quota system:
“ Originated as a means of exclusion of racial
and religious minorities from higher education,
a quota becomes no less offensive when it serves
to exclude a racial majority. ‘No form of dis
crimination should be opposed more vigorously
than the quota system’ (McWilliams, A Mask
for Privilege (1918) p. 288.) [footnote omitted]
To uphold the university would call for the
sacrifice of principle for the sake o f dubious
expediency and would represent a retreat in the
struggle to assure that each man and woman
shall be judged on the basis f»f individual merit
alone, a struggle which has only lately achieved
success in removing legal barriers to racial equal
ity.” 18 Cal.3d at 62-63.
It is interesting to note that several other recent
decisions handed down by state and federal courts
square with the opinion below in rejecting the quota
concept. In Flanagan v. President and Directors of
Georgetown College, 417 F.Supp. 377 (D.D.C. 1976),
the United Stales District Court for the District of
Columbia rejected the use o f a racial quota to dis
tribute scholarship funds as part o f an affirmative
action program under Title VI of the Civil Nights
Act of 1961. The Court held that:
27
“ While an affirmative action program may be
appropriate to ensure that all persons are afforded
the same opportunities or are considered for
benefits on the same basis, it. is not permissible
when it allocates a scarce resource (be it jobs,
housing or financial aid) in favor o f one race to
detriment of others.” 417 F.Supp. at. 384.
In Bridge port Guardians, Inc. v. Members of The
Bridgeport Civil Service Commission, 482 F.2d 1333
(2d Cir. 1973), cert, denied 421 U.S. 991 (1975), the
Second Circuit refused to sanction a racial quota
to remedy past discriminatoiy promotion practices.
The Court commented:
“ The imposition of quotas will obviously discrim
inate against those whites who have embarked
on a police career with the expectation o f ad
vancement only now to be thwarted because of .
their color alone. The impact of the quota upon
these men would be harsh and can only exacerbate
rather than diminish racial attitudes .” 482 F.2d
at 1341.
Another recent case is Inge v. Town of Montclair, ,
..... N.J......... (No. A-107, Slip Opinion filed Novembeij
30, 1976). In Ligc, the Supreme Court of New Jer
sey struck down a racial quota imposed by the Di
rector of the New Jersey Division of Civil Nights to
correct past discrimination in the Montclair Police
and Fire Departments. Although based upon state
law, 13 the Inge opinion exhibits a concern similar to
that expressed by the courts above. The New .Jersey
Supreme Court noted that when remedies are fash-
i3.....N.J......... (Slip Opinion al 29, 31).
i.l
ioned on a class quota basis, "it leads to insoluble
problems and piles discrimination on top of discrimi
nation.” ..... N.J......... (Slip Opinion at 27). The
court concluded:
“ A quota ci*catcs castes and divides society. It is
particularly abhorrent where we are striving- for
an equality in society in which race is totally ir
relevant.” ..... N.J. ...... (Slip Opinion at 30).
Petitioner’s contention that the decision herein of
the California Supreme Court is in conflict with other
holdings around the country is incorrect. Such a
claim does not withstand analysis and cannot support
a grant o f certiorari in this case. The constitutional
framework of the decision below is consistent with
other state and federal cases and, as we demonstrate
below, follows directly from the precedents established
by this Court.
THE CALIFORNIA SUPREME COURT CORRECTLY
DECIDED THIS CASE
The constitutional inquiry conducted by the Califor
nia Supreme Court has already been explored in
some detail. A careful analysis of tho court’s opinion
reveals that the highest judicial tribunal in California
correctly interpreted and applied tbe prior decisions
o f this Court.
The California Supreme Court confronted a racial
quota. No previous ease nor any statute supports the
imposition of this discriminatory device. “ No college
admission policy in history,” said the court below,
“ has been so thoroughly discredited . . . .” 18 Cal.3d
29
at 62; cf. Hughes r. Superior Court, 339 U.S. 460
(1950); Cosset V. Texast 339 U.S. 282 (1950).
The California Supreme Court recognized from the
outset that the rights at stake in this controversy
belong to Allan Bakke as an individual. 18 Cal.3d
47 (n. 11), 51 (n. 17). The right to be free from
racial discrimination is a personal right, as this Court
held in Shelley v. Kracmer, 334 U.S. 1 (1948):
“ The rights created by tbe first section of the
Fourteenth Amendment are, by its terms, guar
anteed to the individual. The rights established
arc personal rights. It is, therefore, no answer to
these petitioners to say that the courts may be
also be induced to deny white persons rights of
ownership and occupancy on grounds of race
or color. Equal protection of tbe laws is not
achieved through the indiscriminate imposition of '
inequalities.” 334 U.S. at 2 2 .
The court below held that the Equal ITotectibn
Clause, which by its own terms applies to “ any per
son” , means what it says and that “ its lofty purpose,*
to secure equality o f treatment to all, is incompatible •
with the premise that some races may be afforded a
higher degree of protection against unequal treat
ment than others.” 18 Cal.3d at 51.
Petitioner’s request that this Court reverse? the
decision below jeopardizes these fundamental consti
tutional principles. I f the Court were to reverse, or
substantially modify, the decision below along the
lines suggested in the petition, tbe Court would risk
transforming what have historically been individual
30
lights into “ group’ ' rights. To oast aside a long
history of individual freedom and replace it with a
system of privileges based upon ancestry would mark
a radical departure from the previous decisions of
this Court. Untold and vexing questions would in
evitably arise in future eases. Which groups are to
be preferred? 13 IIow extensive a preference should be
granted? For how long is the preference to be con
tinued? Who shall decide when the preference is to
be altered or concluded, and on what terms, and by
what authority?
There follows a question of numbers. A quota in
proportion to the national population? The state pop
ulation? The county or city population? If, for ex
ample, the Japanese population o f the United States
were 1 in 400, then would each professional school
class have only one member o f that group, given 400
places in the class? I f the state had no significant
Japanese population, then could no Japanese qualify?
What shall be the test of membership hi a particu
lar racial group? Need one be a “ full-blooded" Amer
ican Indian to qualify? Or is one grandparent
sufficient? Or one great-grandparent? Are we to
become involved in the testing of legal rights accord
ing to blood lines? Such are the inquiries that will
,aThe instant quota grants a preference to Blacks, Chicanes,
Asians and American Indians. In the DeFunis case, supra, the
special admission program favored “ Black Americans, Chicane
Americans, American Indians and Plullipinc Americans.” 82
Wash.2d at 17-18. Tn d levy, supra, the preferred groups were
“ Blacks, Puerto limans, Mexican Americans and American In
dians.” 3!) N.Y.2d at 330.
31
flow from the adoption o f petitioner’s prayer that
group rights be constitutionally established.
The Court below did more than recognize the in
dividual nature of rights under the Equal Protection
Clause. The California Supreme Court also employed
a particular standard o f review, referred to its the
“ strict scrutiny” or “ compelling state interest” test.
The decision to adopt this standard is consistent with
previous decisions o f this Court. Dunn v. Blumstein,
405 U.S. 330, 342-43 (1972) ; Loving v. Virginia, 388
U.S. 1, 11 (1907) ; McLaughlin v. Florida, 379 U.S.
184, 192-93 (1904). The burden of proof always has
been on the government in racial cases} Id.
The California Supreme Court stated that in order
to satisfy the compelling state interest test, the Uni
versity must demonstrate that there are no less intru
sive means capable of achieving the goals of the spe
cial admission program. 18 Cal.3d at 49. As notecjl
above, the courts in DeFunis and Alevy applied sub
stantially the same rule. 82 Wash.2d at 32, 30; 39 ^
N.Y.2d at 330. Petitioner’s claim that this require
ment is the result of a “ tour de force reading o f this
Court’s ‘ less intrusive means’ cases” is without sup
port. Tn the case o f Dunn v. Blumstein, supra, 405
U.S. 330, the Court reviewed a challenge to the state
of Tennessee’s durational residence law which im
pinged upon the fundamental right to vote and also
upon the right to travel. The Court applied the com
pelling state interest test:
“ In sum, durational residence laws must be
measured by a strict equal protection test: they
are unconstitution..' j.less the state can demon
strate that such lav. - are ‘necessary to promote
a compelling gov.■> ,:m< ntal interest.’ (citations
omitted) . . .
It is not suffa ;< lit for the state to show that
durational resid.-mv requirements further a very
substantial state interest. In pursuing that im
portant interest, the state cannot choose means
that unnecessarily burden or restrict the consti
tutionally protected activity. Statutes affecting
constitutional rights must be drawn with ‘pre
cision’, NAACP v. Button, 371 U.S. 415, 438,
83 S. Ct. 328, 340, 9 L. Ed.2d 405 (1903); United
States v. Itolel, 389 U.S. 258, 205, 48 S. Ct. 328,
340, 19 L. Ed. 2d 508 (1907), and must lie ‘ tai
lored’ to serve their legitimate objectives. Shapiro
v. Thompson, supra, 394 U.S., at 031, 89 S. Ct.,
at 1329. And if there are other, reasonable ways
to achieve these goals with a lesser burden on
constitutionally protected activity, a state may
not choose the way of greater interference. I f it
acts at all, it must choose ‘less drastic means.’
Shelton v. Tucker, 304 U.S. 479, 488, 81 S. Ct.
247, 252, 5 L. Ed.2d 231 (1900).” 405 U.S. at
342-43.
Petitioner’s assertion that the recent decisions of
this Court call for a less demanding standard of re
view in racial cases cannot withstand analysis. The
case cited by petitioner, American Party of Texas v.
While, 415 U.S. 707 (1974) Offers little support for
petitioner’s argument. In that case, the Court upheld
certain provisions of the Texas Election Code. The
Court, faced with a set of statutes that affected the
33
fundamental right to vote and the right to associate,
applied the compelling state interest test, and did so
consistent with its previous holding in Dunn:
“ We agree with the District Court that whether
the qualifications for ballot position are viewed
as substantial burdens on the right to associate
or as discriminations against parties not polling
2 % o f the last election vote, their validity de
pends upon whether they arc necessary to further
compelling state interests, Storer v. Brown, 415
U.S., at 729-733, 94 S. Ct., at 1278-1281. (Foot
note omitted.) But we also agree with the
District Court that the foregoing limitations,
whether considered alone or in combination, are
constitutionally valid measures, reasonably taken
in pursuit of vital state objectives that cannot be
served equally well in significantly less burden
some ways.” 415 U.S. at 780-81.
Dunn and American Party, taken together, confirm
the essential elements of the compelling slate interest,
test. No decision o f this Court indicates that racial •
discrimination is to be judged by any lesser standard, ,
or is to be judged differently depending upon the ̂ .
asserted purposes of the discrimination. Indeed, the
recent case of McDonald v. Santa Pe Trail Transpor
tation C o .,..... U.S....... , 49 L. Ed.2d 493, 90 S. Ct.......
(1970) demonstrates a commitment by this Court to
apply a uniform standard in determining the rights
of minorities and qon-minorities alike. In McDonald,
the Court held that Title V II of the Civil Bights Act
of 1904 and Section 1981 o f Title 42 of the United
States Code, provisions that parallel the Fourteenth
34
Amendment, prohibit discrimination against all races
on the same terras.
Petitioner unfairly condemns the California Su
preme Court for substituting “ speculation for careful
inquiry” . Petition at 18. The plain fact is that the
instant record is devoid o f any evidence respecting
alternatives to petitioner’s quota system. This is nec
essarily so, under the evidence o f the case, since the
medical school opened in 1908 and the racial quota
was adopted only one year later. The University,
which had the burden of demonstrating that the racial
quota admission policy at the medical school was
strictly necessary to promote a compelling state inter
est, could not have sustained its burden. The Califor
nia Supreme Court reviewed possible alternatives to
the racial quota. While it could not insure that such
alternatives would be successful in reaching certain
goals which it assumed, arguendo, to be valid, the
court below properly decided that it could not sanction
the imposition of a racial quota upon the record before
it. There is no case which upholds a racial quota re
specting admission to professional school, and there
is no case in contliet with the reasoning or holding of
the court below.
' CONCLUSION
The California Supreme Court properly decided
this ease and did so guided by the previous decisions
of this Court. The decision below upholds Allan
Bakke’s right to be free from racial discrimination
and does so consistent with the United States Con-
35
stitution. The decision should stand as rendered. The
petition for a writ of certiorari should be denied.
Respectfully submitted,
R eynold II. Colvin,
R obeiit D. L in k s ,
J acobs, B lanckenbijho, M ay & Colvin,
111 Suitor Street, Suita 1800,
Sen Francisco, California 94104,
Counsel for Respondent.
January 6 , J977.
i
»
l '
<fc
*-u w a*
\
nr the
J ^ t . p n w ( t fm u l « f t l jc I h t t t c h B i n U a
October T erm, 1976
No. 76-811
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
» Petitioner,
V.
ALLAN BAKKE,
Respondent.
BRIEF OF THE BOARD OF GOVERNORS OF RUTGERS,
THE STATE UNIVERSITY OF NEW JERSEY, THE
RUTGERS L A W SCHOOL ALUMNI ASSOCIATION
AN D THE STUDENT BAR ASSOCIATION OF THE
RUTGERS SCHOOL OF LAV/— N EW ARK
AM ICI CURIAE
A n NAMAY T. SnEPPARD
J onathan M. H yman
Constitutional Litigation Clinio
Rutgers Law Sohool
175 University Avenue
Newark, New Jersey 07102
Attorneys for Amici Curide
tabije OF contents
____ pMJB
1 ̂ , , I I
Interest oe A,ncx... 4
_________
................ - ............ 5
gXA.TEMÊ T ___ ________ _____ ___
̂ m? AeQuME1,,E ......oe
Q̂tTNCEM'E • tu AtnCndmo.»t W P«es 110 U” 3. 1
X - ® e .te - v e r s d --------------
W30 ° d ,lnl„a , coroin^I’1' 3
* . * » * * £ £ £ » » " * * »
S e r ^ d« ..............
.. n£ ^\acks M'd s;nu:
-cc e lu s io n i u
S S T S ........................
., ot C aliforn ia
n rPEe University 0 rogrjun lS
W" St°m d » “ “ f of t l n d l X
os Uicy con to«c __________ ______
610,1
^aendiBcnt
u
TABLE OF CONTENTS
^ Oo«rt crron-
° } , U,ten^eted the Fourteenth
the lS rtCont « aA1,UU,nCr that viscerates tiie Ilnitecnth Amendment ____
B. The California Supremo Court erred in
P I) mg the strict scrutiny test in this
Case ................. - ----------------------- ------
C. TJio University of California’s program
does not deprive Italdie o f any eonsU-
tutionaliy 1)rotecte<l rights
D. Tire Davis program does not unconsti-
tutionally burden the majority______
E. California iiad tiie power to institute
the minority admissions program as a
means to further tiie general welfare
a\ ltliout a showing of past discrimina-
tion by the medical school ___
H I Afliimame of the Bakkc division will stulti
fy the ability of political institutions to
'respond to the social reality of race-based
inequality ............... .....
IV- The ltutgers minority student program
demonstrates that special admissions pro
grams can “ work” and “work now" to ef
fectuate tiie Tliirteenth Amendment _____
ONCLUSION
PAGE
21
26
33.
38
39
46
51
54
TABLE OF CONTENTS m
PAGE
O ases:
Anderson v.' Martin, 375 U.S. 399 (1964) ______ 29
Armstead v. Starkville Mun. Separate School
Dist., 4G1 F.2d 276 (5th Cir. 1972) __________ 35
Arnold v. Ballard, 12 F.E.P. Cases 1613 (Gth
Cir. 1976) ___ ______ - ______________ ________ 35
Associated Gen. Contractors of Mass. v. Alt
shuler, 490 F.2d 9 (1st Oir. 1973), cert, de
nied, 416 U.S. 957 (1974) ............. *_______45
Bahlcc v. Regents of the Univ. of Cal., 18 Cal.
3d 34, 553 P.2d 1152, 132 Cal. ltptr. 680 (1976).. 24,
27,38-40
Berea College v. Kentucky, 211 U.S. 45 (1908) ..11,12
Brown v. Board of Educ., 347 U.S. 483 (1954) .. 4,6,
29,46
Brunetti v. City of Berkeley, 12 F.E.P. Cases
937 (N.D. Cal. 1975) ________________________ 44
Carter v. Gallagher, 452 F.2d 315 (8 th Cir. 1971),
cert, denied, 406 U.S. 950 (1972) ____________ 3 5
Chance v. Board of Examiners, 534 F.2d 9 93 (2d
Cir. 1976) ......................... ........................ ..... ...... 4 0
Civil Rights Cases, 109 U.S. 3 (1883) ...... ...... jj, 1 1 , 5 4
Clark v. Universal Builders, Inc., 401 F.2d 324
(7th Cir. 1974) _______ *____________ _______ 1 6
Contractors Ass’n of E. Pa. v. Secretary of
Labor, 311 F. Supp. 1002 (E.D. Pa. 1970),
afj’d, 422 F.2d 159 (3d Cir.), cert, denied, 404
U.S. 852 (1971) __________ __________________ 4 5
IV
TABLE Off CONTENTS
Cases (continuer]) : pa g e
Contractors Ass’n of E Pa v ,
Labor, 442 F.2d 1 5 9 p J % [ SecretarV of
401 U.S. S34 (1071) ° Jr‘ ’ CerL denied>
Cooper v. Aaron, 358 U.S. 1 (1958) w
Craig v. Boren, 97 S. Ct. 451 (197G) ....Z ......... ^
0/ ̂ ™
/,,c - v- 342 U.S. ^
............................................................... 42
B,C7037 n ^ r / v i f ‘̂ * * 0/ Educ-> Civ. No.C 7037 hh D (N.D; Cal., filed Jan. 1970) ...... . 1 4
Z Z Z Z V* Saudf ° rd> CO U.S. (19 IIow ) 393 15 L.Ed. 091 (1S5G) .........._____ j
^ 197HV fl,7,<C7'' 4 1 9 R S'U>J)- 10 2 2 (CJ). p a.1J/6), o/? </, ----- - F.0,1 ------ Nos. 76-2° 17 1 C.
2281, 76-2285 (3d Cir. April 22, 1977) .......* 45
ELOC v. AT&T, 50G F.2d 735 (3d Cir. 1974),
o f f 9 m p a i t and dismissing in part, 3G5 F
Supp. U 0:> (E.U. Pa. 1973) .......... * 4g
Examining Bd of Eng’rs, Architects & Surveyors
v. Otero, 420 U.S. 572 (1976) ________ M 3 1
^ T k UgZ C° Wman TrmisP- Co., 424 U.S. 747
Frontiero v. Richardson, 411 U.S. G7 7 ( 1 9 7 3 ) 34
Garrett v. FCC, 513 F.2d 1056 (D.C. CSr. 1975) 4 G
Gerrman v. Kipp, 45 LAV. 2486 (W.D. Mo. April
7’ 1977) ------ --------------------------------------------40,41,44
TABLE OF CONTENTS V
PAGE
Cases (contin ued):
Griggs v. Duke Power Co., 401 U.S. 424 (1971)
22,48-50
Hernandez v. Texas, 347 U.S. 475 (1954) ........... 31
Hills v. Gautreaux, 425 U.S. 284 (197G) ............... 39
Hobson v. Hansen, 2G9 F.Supp. 401 (D.D.C.
19G7) .............................................. :.......................14, 28
Hunter v. Erickson, 393 U.S. 385 (19G9) ............. 29
Johnson v. Railway Express Agency, 421 U.S.
454 (1975) ............................................ ,............... 17,18
Jones v. Alfred II. Mayer Co., 392 U.S. 409
(19G8) ........................................................... 8,17,18,20
Joyce v. McCrane, 320 F. Supp. 1284 (D.N.J.
1970) ........................ .-.......................................... . 45
Katzcnbach v. Morgan, 384 U.S. G41 ( LOGO) ..... . 41
Kemp v. Beasley, 3S9 F.2d 178 (Stir Cir. 1963),.... 35
Kirkland v. New York State Dep’t of Correc
tional Serv., 531 F.2d 5 (2d Cir. 1975) ...... ... . 40
Koelfscn v. Jackson, 355 F. Supp. 243 (D. Minn.
. 1972), aff’d, 410 U.S. 97G (1973) ....................... 31
Kramer v. Union Free School Dist., 395 U.S. 621
(19G9) ..................................................................... 24
Leisy v. nardin, 135 U.S. 100 (1890) ...... ............. 19
Local 53, International Ass’n of Heat 16 Frost
' Insulators & Asbestos Workers v. Vogler, 407
F.2d 1047 (5th Cir. 19G9) ...........................‘ ____ 35
Loving v. Virginia, 388 U.S. ,1 (1967) ................. 12,29
>« * * * •> «».|\* > -*M w 4*
- ___________________TABLE o f c o n t e n t s
Cases (continued): page
Mathews v. Lucas, 427 U.S. 4 7 5 (1976) ............... 2 7
MC(m < ) )h V‘ Manjland’ 1 7 U-S- ( 4 Wheat.) 316
„ n ' ...............................................................18,20,31
" £ r $ got o' ; 1: F.: ™ * - » • ^ 427
^ a r a T " C‘" ‘!7' ,,s Corp- v- 4 1 1 U.& 702
1 ' ;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
McLaughlin v. Florida, 379 U.S. 184 (19C4) ....... 1 2 , 29
Milliken v. Bradley, 418 U.S. 717 (1974) ............. ’ 39
Morgan v. Kerrigan, 530 F.2d 431 (1st Cir. 197G) 35
Morton v. Mancari, 417 U.S. 5 3 5 (1974) .... 4 5 '
New S,ate lcc Co. v. Lichmann, 2S5 U S 20 2
(1932) ^
’ ........................................................................... 20
Otero v. Lew .York City IIous. Autli., 484 F.2d
1122 (2d Cir. 1973) ........................................29,30,40
P. v. Ihles, 343 F. Supp. 1300 (N.D. Cal. 1972) 14
Palmer v. Thompson, 403 U.S. 217 (1971) 20
Patterson v. American Tobacco Co., 5 3 5 F 2d 257
(4th Cir. 1970) ....................................... •' g 5
Pclliccr v. Brotherhood of Ily. <0 S.S. Clerks, 118
F. Supp. 254 (1953), aff’d, 217 F.2d 205
(1954), cert, denied, 349 U.S. 912 ( 1 9 5 5 ) ......... 4 5
Phelps Dodge Corp. y. NLRB, 313 U S 177
( 1 9 4 1 ) ............... ...... _ _ _ ..... ...... ; ; ' 3 7
Plessy v. Ferguson, 1G3 U.S. 537 (189G) ..... ......... 1 1
Porcelli v. Titus, 431 F.2 d 1254 (3d Cir. 1970) ....3 5 , 30,
42,43
vi
TABLE OF CONTENTS Vll
PAGE
Cases (contin ued):
Railway Mail Ass’n v. Corsi, 320 U.S. 88 (1954) 42
Rios v. Stcamfitters Local G38, 501 F.2d 022 (2d
Cir. 1974) ........................... 35
Runyon v. McCrary, 427 U.S. 100 (1970) ........... 18
San Antonio Indep. School Dist. v. Rodriguez,
411 U.S. 1 (1973) .................................................. 27
Serna v. Portales Mun. Schools, 351 F. Supp.
1279 (D.N.M. 1972) .............................................. 14
Shelton v. Tucker, 3(41= U.S. 479 (19G0) ............... 24
Slaughter-House Cases, 83 U.S. (10 Wall.) 30
(1872) ......................... ,.......................................... 23,30
South Carolina State Highway Dcp’t v. Barnwell
Bros., Inc., 303 U.S. 177 (1938) ......................... 31
Southern 111. Builders Ass’n v. Ogilvie, 327 F.
■Supp. 1154 (S.D. 111. 1971), aff’d, 471 F.2d G80
(7th Cir. 1972) _________ ___________________ 4 5
Strauder v. West Virginia, 100 U.S. 303 ( 1S7 9 ) 28
Sugannan v. Dougall, 413 U.S. 034 (1973) _____ 24
Sivann v. Charlotte-Mecklcnburg Bd. of Educ.,
402 U.S. 1 (1971) ................................................. 36,41
Sweatt v. Painter, 339 U.S. 029 (1950) ...............15,52
Tahcil v. Woolls, 379 U.S. 19 (1904) ______ ____ 29
TV 9 v. FCC, 495 F.2d 929 (D.C. Cir. 1973) .... 46
United Jewish Organizations of Williamsburqh,
Inc. v. Carey, 45 U.S.L.W. 4221 (March 1 ,
1977) ......................................26,27,29,34, 37-39,41,43
TABLE OF CONTENTS
. . pa g e
ses (continued) :
United States v. Carotene Prod. Co., 304 U S
144 (1938) .................... OQ.................................. Ml
United States v. International Union of Elevator
Constructors, Local 5, 538 F.2(l 1012 (3d Cir
197G) ........................ ........... V ’ __
United Stales v. Ironworkers Local 8G, 44 3 F.2d
544 (9th Cir.), cert, denied, 404 U.S. 1)84 (1971) 35
United States v. Jefferson Count)/ Dd. of Educ.
372 F.2d 83G (5th Cir. 19GG), ajf'd en banc, 3S0
F .2d 385 (5tli Cir.), cert, denied, 3S9 U.S. 840
(19G?) ................................................................9,11,35
United Stales v. Montgomery County Dd. of
Educ., 395 U.S. 225 (19(19) ................................3 5 ^ 6
United States v. National Lead Indus., Inc. 4 7 9
F.2d 354 (8 th Cir. 1973) ............................. ' ....... 49
United States v. Reese, 92 U.S. 214 (1875) ....... 1 1
United States v. United Brotherhood of Carpcn~
ters iC Joiners, Local if,9 , 457 F.2d 120 (7th
Cir.), cert, denied, 409 U.S. S51 (1972) ...... .... 35
Washington v. Davis, 42G U.S. 229 (197G) ........... 50
Weiner v. Cuyahoga Community College Dist.,
19 Ohio St. 2d 35, 249 N.E.3d 907 (19G9)'
c e r t , denied, 39G U.S. 1004 (1970) .............. . 4 5
Yarbrough v. Ihdbert-Wcst Memphis School
Dist. No. 4, 3S0 F.2d 9G2 (8 th Cir. 19G7) .... . 3 5
Tick Wo v. Hopkins, 118 U.S. 35G (18SG) ......... 28
(r* *v * I
TABLE OF CONTENTS IX
C o n s t i t u t i o n a l P k o v i s i o n s :
United States Constitution
Art. VI ................ .........
First Amendment --------
Thirteenth Amendment
Fourteenth Amendment
PAGE
18
_________ ______ ____ 24,25
____________________ passim
___________________ passim -
Fifteenth Amendment .'___________ 5,50
Statutes :
Civil Eights Act o f 18GG, 42 U.S.C. to 1981,
19S2 (1970) ___ _________________________iG, 17,22
Civil Eights Act of 19G4,
Title VI, 42 U.S.C. § 2000d ______________ 47
Title VII, 42 U.S.C. to 2000o et seq......7, 22, 45,
48,50
25 U.S.C. to 1301 et seq. (1970) ...A...... ............ 45
E x e c u t i v e Oiider:
Executive Order 11246 ...................................... . 45
P e c u l a t i o n s :
7 C.F.E. ^ 15.3(b)(G)(i) and (ii) (1977) 48
10 C.F.E. ̂ 4.12(f) (1977) .............. ......... ..... .... . 48
13 C.F.E. 112.3(b)(3), 113.3-l(a) (1977) ..... ' 48
14 C.F.E. § 379.3(b)(3) (1977) ............................ 48
14 CF.E. to 1250.103-2(7) (e), 1250.103-4(f), (g)l 48
.R egulations (continued): . p^ e
18 C.F.R. § 302.3(b)(0) (1976) "............. _ ' „
22 C.F.Iv. § 141.3(b)(5 )(i) and ^ (1976) ....... .43
22 C.F.R. $ 209.4(b)(6) (1970) ...... ............ .
24 C.F.R. § 1.4(b)(0) (1970) ......................... 4g
28 C.F.R. § 31.3(b) (G) (i) and (ii) ( 1 9 7 6 ) 43
29a m ! ' 31'3(C)(i) W . 7(1) and (Uy
32 C.P.K. $ 300.4(4) (i) and (ii) ( 1 0 7 0 ) ...... ...... 4g
3S C.F.It. §JS.3(l»)(G)(i) and (ii) (1070) 48
“ o w ^ 1 0 1 C ;2 W -2 M W . 1 0 M .2 0 0 (i, and
' ....... ..... ............ 4g
1 U ‘ b« « ) W - d (u) and (d)'
............................. - ---- --------------- ------- 4 5
4o C.F.R. § 80.3(b) (G)(i) and (ii) (1970) ....... 4 7
45 C.F.R. § 011.3(b)(0) (1970) ______________ 48
45 C.F.R. § 1010.4(b) and (d) (1976) .... ........ 43
I.R.S. Rev. Proc. 75-50 § 3.02 ........... 48
I.R.S. Reg. § 53.4945-4(b)(l), Ex. 2 .............. ~ ^
then A uthoiuties:
G. Allport, The Nature o f Prejudice (1954) ..._. 1 2
Document«ry History of the
gro People in the United States (1908) ....... H
tke A Historyof Black America (1969) _ U 11 •
TABLE OK CONTENTS XI
Other A uthorities (continued):
PAGE
Blumrosen, Strangers in Paradise: Qriggs v.
Duke Power Co. and the Concept of Employ
ment Discrimination, 71 Mich. L. Rev 5 9
(1972) ................_..... ......... ......... ..........
Brennan, The Law School of Tomorrow 89
N.J.L.J. 801 (1900) ............ .............. ....
50
52
A. Brimmer, The Economic Position of Black
Americans: 1976 (1970) ....................... ......... _...13,15
Buchanan, The Quest for Freedom: A Legal
History of the Thirteenth Amendment, 1 2
Hous. L. Rev. 1 (1974-75) .................. ...... .._..A9,23
Buicau oi Labor Statistics, Employment and
Earnings, January 1977, p. 8 , Table 1 ._. 1 5
Cong. Globe, 3Sth Cong., 2nd Sess. 179 (1S05) 1 0
Cong. Globe, 39th Cong., 2nd Sess. 175 ( 1 SG5 ) 1 0
Cong. Globe, 39th Cong., 1st Sess. 1832 (1800) 19
Cong. Globe, 42iul Cong., 1 st Sess. Appendix
at 85 (1871) ................... ;................... 1q
Cook, “ Motives in a Conceptual Analysis of Atti
tude Related-Behavior,” Nebraska Symposium
on Motivation 179 (1909)
- 1 he Affect of Unintended Interra
cial Contact upon Racial Interaction and Atti-
tudo Change. Final Report, U. S. Office of
Education, Project No. 5-1320 (1971) ....
Darity, Crucial Health & Social Problems in the
Black Community, J. Blade Health Perspec
tives 30 (June/July 1974) .„
PAGE
15
33
23
11
Other A uthorities (continued):
H. Davie, Negroes in American Society ( 1 9 4 9 )
M. Deutseh, The Resolution of Conflict (1973)
Fan-man, Does the Fourteenth Amendment In-
C( i m ) tke BlU °f Ri° hts? 2 Ston- D.• Rev. 5
J. Franklin, From Slavery to Freedom (3 d ed
E. Freund, The Police Power (1904) .................. 1 9
II.R. Rep. No. 238, 92nd Cong., 1st Sess. 4 (1971) 3 5
J. Javits, Discrimination— U.S.A. (19G0) 1 5
Johnson, et al, Recruitment and Progress of Mi-
notify Medical School Entrants, 1 9 7 0 - 1 9 7 2 , J.
Med. Educ., Supplement 50 (July 1975) . . . _ . . _ . . .33, 49
Kmoy, The Constitutional Right of Negro Free
dom, 21 Rutgers' L. Rev. 3S7 (19G7).................. 9
R. Ivluger, Simple Justice (1975) .................... H
Long & Hansen, Trends in Return Migration to
the South, 1 2 Demography G01 (Nov. 1975) .... 33
Mills, Each One Teach One, J. Black Health Per
spectives 1 (Aug./Sept. 1974) ............................ 3 2
C. Odcgaard, Minorities in Medicine: From Re
ceptive Passivity to Positive Action 19 G 6 -76
<1977) .....................................................................14,49
Physician Choice of Specialty and Geographic
Location: A Survey of the Literature, Chapter
9, Medicare-Medicaid Reimbursement Policies
(Institute of Medicine, National Academy of
Sciences, March 1976) .......................... ............... 33
TABU ! OF CONTENTS TUI
•-■ ■ ■ ■ ......... ,
PAGE
Other A uthorities (Conltinued):
President’s Committee on Civil Rights, To Se
cure These Rights (1947) ________________ 14
Report of the National C nnmission on Civil
Disorders (19G8) _______ ___________________ 4
W. Ryan, Blaming the Victim (1971) ______ ___ 13 '
S. Rep. No. 415, 92nd Cong., 1st Sess. 6 (1971) 35
Second Newman Report: National Policy and
Higher Education, Report of a Special Task
Force to the Secretary of Health, Education
and Welfare (1973) ............ ...... ..... ..... ............ 13,14
Senate Subcommittee Hearing on CLEO Appro
priations for Fiscal Year 197G .......................... 15
G. Simpson & J. Yinger, Racial and Cultural
Minorities: An Analysis of Prejudice and Dis
crimination (4th ed. 1972) _____ 7,12
Spruce, Toward a Larger Representation of Mi
norities in Health Careers, G4 J. Nat’l Med. A.
432 (Sept. 1972) ....................... ..... _ ............. . 32
J. tenBroek, The Antislavery Origins of the
Fourteenth Amendment (1951) .......................... 23
■-------------------, Thirteenth Amendment to the Con
stitution of the United States, 39 Cal. L. Rev.
171 (1951) .......................................................... 19
Tilson, Stability of Employment in OEO Neigh
borhood Health Centers, 11 Med. Care No. 5
(1973) _____ 33
U.S. Dept, of Commerce,. Bureau of the Census,
Statistical Abstract of the United Stater
(197G) 30
xiv TABLE o r CONTENTS
Q ih e u A uthorities (continued): PAGE
U.S. Dept, o f HEW, Minorities and Women in
the Jlcallh Field (197G) ...................................... 1 4
U.S. Dept, of HEW Health Resources Adminis
tration, Bureau of Health Resources Develop
ment, Characteristics of Flack Physicians in
the United States (1975) .................................... 33
L. Wars off, Equality and the Law (1938) ........... 23
Wasserstrom, Racism, Sexism and Preferential
Treatment: An Approach to the Topics, 24
U.C.L.A. L. Rev. 581 (1977) ........................ ____ 2G
C. Woodward, The Strange Career of Jim Crow
(3d ed. 1974) ______ ___________________ _ ^2
Wright, The Role of the Supreme Court in a
Democratic Society—Judicial Activism or Re
straint?, 54 Cornell L. Rev. 1 (19GS) ............... 28
IN THE
g>upr?mr (Smart uf Jlyr 3!htttrfr Siatea
October T erj., 197G
No. 76-811
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Petitioner,
v.
ALLAN BAKKE,
Respondent.
BRIEF O F THE BOARD OF GOVERNORS OF RUTGERS,
THE STATE UNIVERSITY OF NEW JERSEY, THE
RUTGERS L A W SCHOOL ALUMNI ASSOCIATION
AND THE STUDENT BAR ASSOCIATION OF THE
RUTGERS SCHOOL OF L A W — NEW ARK
AM ICI CURIAE
Interest o f Amici
The Board o f Governors of Rutgers, The State 'Univer
sity o f New Jersey, governs the entire university jystenv_
with its many campuses and some 40,000 graduate and
»r-.'
2
mdergradu'atc students. As a state institution, it is re
sponsible for providing equal educational opportunity for
dl New Jcrsey residents.
In accord with that responsibility, the Board o f Govcm-
•rs accepted the mandate o f the New Jersey Governor’s
>cleot Oomnuttce on Civil Disorders1 to utilize its re-
ources to “ make equality real’’ for black people This
esponsibility has in part been fulfilled by the successful
mP , nonfat ion at die Rutgers Law School in Newark of *
substantial minority admissions program, described in
lore detail below (Point IV). Almost two hundred minor-
.y *stll<lonts I'n™ been graduated from tlie Law School
im-e the inception o f its special admissions program in
. t wo Jmfid red sixteen are currently enrolled. But
espite its success, the Law School program represents
nly first steps toward full minority participation in the
gal profession. Affirmance by this Court of the Cali-
>rnia Supreme Court’s decision would threaten to reduce
rustically the nun her of minority students entering and
rad mating from Rutgers and eventually would erode the
-itial progress that has been made. F o r this reason, the
oard of Governors is vitally concerned about the out
line of this case. It therefore joins as amicus curiae
irein.
The Rutgers Law School Alumni Association is an or-
mization o f the graduates of the Law School which num-
i s approximately 1400 members. The alumni, many of
i°m attended Rutgers Law School after its minority
udent program was initiated, saw the program grow and
This Committee was established following the riots which swept
: state’s urban population centers in the summer o f 1967. Among
ten members were two former governors o f the state and a future
leral appeals judge.
3
develop successfully not only for minority admiltees but
for the entire Law School community. Indeed, many of
the members o f the Alumni Association were an integral
part of Rio pioneering effort begun in 1 DG8 and actively
participated in the development of the program. Those
members profited immeasurably f.oni a racially integrated
law school experience.
The Association joins as amicus curiae in support o f the
Rutgers Law School’s efforts to increase legal services
within the minority communities and to increase minority
representation in the legal profession o f New Jersey. Its
members are proud of their school's success in increasing
dramatically the number of minority lawyers practicing
successfully in New Jersey in a variety of public and priv
ate settings. The Association is deeply concerned that the
Rutgers minority student program be preserved and con
tinued.
The Student Bar Association (SBA) is the duly elected
student government for the Rutgers Law School in New
ark. Its constituency is approximately 80% white and
20% black, liispanic, and other minorities. The SBA rep
resents a large number of students who were drawn to
Rutgers because of the diversity of its student body and
the richness of its curriculum. For many of these stu
dents, Rutgers represents the most intense integrated
experience they have had.
The SBA is committed 'to a pluralistic student body
which enables 'students to learn from each other and to
understand and appreciate each other’s cultural differ
ences and perspectives. The SBA recognizes that law
school graduates cannot uphold the mandate o f justice and
equality unless those graduates understand what that man
date means to the broad spectrum of the American popu
lation.
4
Iho SBA joins as amicus curiae because of its concern
that an erosion of Uie minority isltudent program will deny
d u S L n ^ fUtU1° Students lhe benefita of an integrated
. Amici bave received tlie written consents of the peti-
loncr and respondent to file this brief. Those consents
lave been filed with the Olcrk of the .Court concurrently
vitli the filing of lids brief. '
Statement
t 7 t t 1,ia- fo lI o w t ‘<1 1{row>l v. Board of Education,
i , ' brought a legalistic form o f equality
> blacks and other minorities that has in large measure
con a form without substance. The full societal partici-
ation which is the hallmark of true equality has yet to
e achieved. Judicial betrayal of the Reconstruction
.mendmen'ts from the mid-lSTOs until 1954 created a rac-
;m so deeply institutionalized that it no longer needs the
icplicit support of the law for its continuation. Even in
aits of the country where do jure segregation has long
-°n outlawed, racial exclusion, discrimination, and stig
matization are so pervasive that, in 1908, the Kerncr Com
ission2 found us moving rapidly toward two societies,
iparato and unequal. Race conscious affirmative action
higher education is an essential mechanism for break-
g that continuum.
This Court is the ultimate guardian of the Constitution,
s decisions affect not merely the body o f American law
it the essential character of American life. Just as the
hole nation bore the consequences of judicial eviscera-
2 Report of the National Commission on Civil Disorders (1968).,
M f-r." y
5
tion o f the Thirteenth, Fourteenth, and Fifteenth Amend
ments in the nineteenth century, it will bear the conse
quences in daily life of the decision made here.
Tliis case is a watershed. It marks the place at which
the Court must decide whether the journey toward a truly
race neutral society will be continued or abandoned.
Summary of Argument
The program of the Davis Medical School fulfills the
command of the Thirteenth Amendment to eradicate all
of the badges and incidents of servitude. The gross ex
clusion of blacks and similar racial minorities from the
professions is one of those badges and incidents. It is a
key element in a system of exclusion and stigmatization
that perpetuates (heir second class status even without
the explicit support of the law. California has the re
sponsibility under the Thirteenth Amendment to aid in
the eradication of the badges and incidents of servitude.
The Thirteenth Amendment creates a reservoir of power
on which California may draw to implement a reasonable
program for the greater inclusion of minorities in medical
training and the medical profession. The University of
California has done no more than that.
Bakke has no Fourteenth Amendment claim that over
rides this implementation o f the Thirteenth Amendment.
The Equal Protection Clause does not always require the
states to'bo color blind. The Fourteenth Amendment was
passed to enforce the Thirteenth, not to subvert it. It
cannot be used to strike down a program that is a direct
implementation of the Thirteenth Amendment. As a white
male, Bakke does not fall within any class that requires
the overriding protection o f the Court. He is not ajnena^.
/
6
Jly boo,, e x c l m ^ r f r o l r a c ^ ^ p d i t f c ^ n ” £ £ f U° ” '
> ." -« racial p S T
nmination by the medical school. " f 1 1 dls'
The action of the University of •
st ul ti fieri ii t u p . , 1 tllcse reme(l«il actions will
S tu l t i h cd if the California court is affirmed.
As shown by the experience of Rutgers Law q - w i
^ c Z l T t a ^ ^d,nissio,ls P^ognuns work to accomplish
i— ! : :L t r sir oi)’- Uie c“ - -
7
A R G U M E N T
I.
The Thirteenth Amendment applies to this case and
requires its reversal.
A. The Thirteenth Amendment commands the eradication
,of all the badges and incidents o f servitude.
This case again brings before the Court the central
problem of American life. The nature of the problem is
plain: we purport to aspire to the full integration o f blacks
and similarly situated minorities3 * * * * * * * into all facets of the
American social fabric hut our aspirations are undermined
3 American Indians, Ilispano-Americans, and Asian-Amcricans are
also persons of color belonging to racial classes whose position makes
them subject to tbe badges and incidents of servitude. Social scien
tists havc defined minmitics as groups of people 11 ’who, because
of their physical or cultural characteristics, are singled out from the
others in the society in which they live for differential and unequal
treatment, and wno therefore regard themselves as objects of collec
tive discrimination, 'the existence o f a minority in a society implies
tbe existence of a corresponding dominant group with higher social
status and greater privileges. Minority status carries with it the exclu
sion from full participation in tbe life of society.’ ” G. Simpson & J.
Yingcr, Racial and Cultural Minorities: An Analysis of Prejudice!
and Discrimination 11 (4111 ed. 1972) (emphasis added). Pursuant
to Title VII of the Civil Rights Act of 1964, the United States Equal
Employment Opportunity Commission requires reporting firms to
provide periodic employment statistics on blacks, orientals, American
Indians, and Spanish sumamed Americans. Employer Information
Report Form EEO-1. These groups fit the social science de finition,
as the EEOC has recognized. Although in this brief Amici empha
size the excluded condition of black Americans, the situation'of'these
other racial minorities replicates in varying degrees the situation of
blacks.
8
the tCneSS f and by
w£ k s'd°ie<” ,iaf r is a j r " ortaUo“ “ ° r siavcry » -
409 M i « ; rn1 V\ Al,ml"■ 392 U.S.» ( jS) (Douglas, J., concurring). The Thirteenth
Ajnendinent embodies the principle that slavery and nil ite
badges and incidents are prohibited. Id. at 4 3 7 .4 4 - Civil
‘ S S S S a c ^ f t J S i s :
® f n w ? U '■ SaMl,ori- “ U s - <19 How.) 393, 15 L. Ed.
' / “ oh) was a more pernicious and wide ran-in-r onin
J0" 11!"" !s »*:....mm-.................. It did not m ir c ly C
hob ‘ nslilmn," Of challel slavery or strike doivi, the
Missoni, Com,,.....use. It established that blacks were
membeis ot a separate, inferior caste aid were not pro-
tectcd by any constitutional mandate. 1
They [black people] had for more than a century
betore been regarded as beings of an inferior
oulei , and altogether unfit to associate with the
white race, either in social or political relations;
and so nr inferior, that they have no rights which
the white man was bound to respect; and that the
negro might- justly and lawfully be reduced to
slaveiy for his benefit. lie was bought and sold,
and treated as an ordinary article of merchandise
and traffic, whenever a profit could be made by
it. iJns opinion was at that time fixed and uni-
9
versal in the civilized portion of the white race. It
was regarded as an axiom in morals as .well as in
politics, which no one thought of disputing, or sup
posed to be open to dispute; and men in every
grade and position in society daily and habitually
acted upon it in their private pursuits, as well as
in matters of public concern, without doubting for
a moment the correctness of this opinion.
15 L.Ed. at 701-702. Chief Justice Taney noted that
only a constitutional amendment could alter the condition
of “ tliis unfortunate race” if it were unjust. Id. at 702.
The Thirteenth Amendment was passed precisely to
eradicate the inferior status and condition of blacks in
America. United States v. Jefferson. County lid. of Educ.,
372 F.2d 830 (5th Cir. 1900), aff’d en banc, 380 F.2d 385
(5th Cir.), co t . denied, 3S9 U.S. 8-10 (1907). See Ivinoy,
The Constitutional Right of-Negro Freedom, 21 Rutgers
L. Rev. 387 (1907). Its broad mission is rot looted in the
congressional debates that accompanied its passage. Sena
tor Wilson of Iowa, one o f the cosponsors o f the amend
ment, responded to the argument that the Emancipation
Proclamation was sufficient to free the slaves. He noted
that more was required.
Servitudes differ in degree and they differ in kind,
but the most important . . . the one that is at once
most significant and least changeable is the differ
ence in degree; a man may be nominally free, but
if he is a workman without capital and lives in a
state of society of which it may be said .‘once a
peasant, always a peasant; once a factory opera
tive, always a factory operative . . he has little
to boast of his freedom and would find it hard to
discover where it ministers to his elevation or hap
piness. --------^
10
Cong. Globe, 39th Cong., 2nd Sess. 175 (18G5). Even
~ m e Z l>Z Cf % rucy tixcd thilt «io Thirteenth Amendment
meaid the full participation of 1,lacks in American society
Mai J v „f 'r ", d'a"?ed 'eeal St“tus' EeP-entaule Alalloi y of Kentucky raised the spectre of social equality
as an objection to the amendment. 1 y
We know the status of the negro. But adopt this
amendment to the Constitution, and so far from
removing a disturbing element from discussion do
we not introduce hundreds of distracting questions
in the place oi one which we propose now to get
nd of, and springing from this very act neces
sarily? I renew the inquiry, what does the gen
tleman propose to do with the negroes if they be
liberated by the constitutional amendment! . . . I
know hundreds of the Republican party who
would have fought to the bitter end against set
ting . . . free the negroes to remain in the states
where they were freed and to control the destinies
ot government by the exercise of the elective fran
chise, maintaining an equality with the white man
socially, civilly, politically. ’
rd°ded)GL0Il,;' 38lh C0ng-’ 2nd Scss- 1 7 9 08G5) (emphasis
The Thirteenth Amendment was thus manifestly in
tended not merely to ban chattel slavery as a legal in
stitution, but to recast the position of blacks in the eco
nomic and political life of America.
As Justice Harlan clearly saw in the Civil lti<dits
Cases (1S83), 109 U.S. 3, 3 S.Ct. 18, 22 L.Ed. 835,.
the Wartime Amendments created an affirmative
duty that the States eradicate all relics, “ badges
ami indicia of slavery” lest Negroes as a race sink
back into “ second-class” citizenship.
11
United States v. Jefferson County Bd. of Edur., supra, at
873. (Opinion of Circuit Judge John Minor Wisdom.
Emphasis in original.)
But the mandate of the Thirteenth Amendment lias
never been fully honored. The pernicious exclusion of
blacks from full integration folk wing Reconstruction—the
continuation of the badges and incidents of servitude—
was and has continued to be embodied in a deep-rooted
social system that is extremely slow to change.
The institutions of society combined early in our his
tory to keep blacks and similarly situated minorities from
participation in the economic, political, and social main
stream. Reconstruction ended with the Compromise of
1877. The possibility of a fully integrated society was de
stroyed by Jim Crow and the complete subjection of
blacks to a virulent system of exclusion and stigmatiza
tion.4
This Court hardly need be reminded of its historical
share of responsibility for the imposition and mainte
nance of second-class citizenship. Berea College v. Ken
tucky, 211 U.S. 45 (1908); Camming v. Richmond County
Bd. of Educ., 175 U.S. 528 (1899); Plessy v. Ferguson,
103 U.S. 537 (1890); Civil Rights Cases, 109 U.S. 3
(1883); United States v. Reese, 92 U.S. 214 (1875). The
impact of Plessy was not only to give approval to a Jim
Crow system that was already in place, but to provide
legal and moral authority for the great expansion of
4 See generally II. Aptheker, A Documentary History of the Negro
People in the United States 565-606 (1968); L. Bennett, Before the
Mayflower: A History of Black America 220-41 (1969); J. Franklin,
From Slavery to Freedom 310-15 (3d ed. 1967) ; R. Kluger, Simple
Justice, ch. 3, 4 (1975) ; C. Woodward, The Strange Career of Jim
Crow (3d ed. 1974).
12
Z 0) o iz t c n Carccr f
lo w a I.W prohibiting the v o l ^ T t ^ Z a c l
Wat e ^ e ir w m ft h " ° f «»<I exclusion thus
still provides an a H 1’" 1 ° ' tl10 la'V' U Provided and
s r t i .he
1 (19C71- i ,|i; i' " " , ' r r° ’ SI:C I/0l,"y '• V'njHtia, 1188 US (l.)G7) McLaughlin v. Florida, 379 U.S. 184 (1904)
assured that when blacks and whites int.naeted at !dl it’
would he Will, assumptions of black inferiority School
bhu-l-f ° n T 1 C1" ,)l0yi,1°nt ‘^scrimination ensured that blacks as a class were denied, incomes and social status
comparable to whites. Segregated social institutions such
1940 s* f n '!i lGrCCS W,'idl S0IVu ated the races until the
a ? ’ fm,lK>1' supported (he myth of black inferiority
Lnforced separation in turn confirmed and still confirms
white misperceptions that racial minorities, and blacks in
particular, are inferior. Those misperceptions fuel the
continuing exclusion of minorities.6
crimination (4th cd. 1972) ( “ Once fixed in th e iltu rC teV fste feo '
typed mental pictures of other groups] react back upon’ ftlJculturel
omitted))*.C UUCraCt,0n ° f thC gr° Ups invoIved” ld- at 153 (footnote
13
One attribute of the system is the gross economic sup
pression of blacks and similar racial minorities. The
1975 median income for white families was $14,208 while
for minority families it was only $9,321. U. S. Dept, of
Commerce, Bureau of the Census, Statistical Abstract of
the United States 405 (Table C50) (1970). This disparity
has not appreciably changed over the years. A. Brimmer,
lh e Economic Position of Black Americans: 1076, 40
(1970). During the same year, 29.3c/o of minorities, as
compared with 9.7% of the white population, had incomes
below the poverty line. Statistical Abstract, supra, at
415 (Table 073). In 1970, the unemployment rate for
minorities was almost double that of whites: 13.0% as
compared to 7.5% for whites. Id, at 301 (Table 582).
1 his kind ol disparity in income and uneiupolvmont rates
supports the invidious mythology that “ blames the vic
tim” for his disfavored condition.0
Other disparities are found in (he relative educational
status of whites and racial minorities. As of 1975, 57 5%
of the black population in the United States over 25 years
of age had not graduated from high school and 12.3%
had attended school lor less than five years. For the en
tire population the corresponding figures were 37.5% and
4.2% respectively. Id. at 123 (Table 198). In 1975, 14.5%
of the white population who were at least twenty-five
years old, but only 0.4% of the black population, had
completed four or. more years of college. Id. at 123 (Table
199). It has become increasingly clear that “ [t ]0 succeed
without such credentials is difficult for whites, but almost
impossible for minorities.” Second Newman . Report-
National Policy and Higher Education, Report of a Spe-
a See W. Ryan, Blaming the Victim (1971) describing the pheno
menon whereby the visible consequences of exclusion are utilized to
justify further exclusion.
14
Clcd/ i^ !Ct li)rce io the Secretary of Health, Education
and Welfare 27 (1973). This racial exclusion from higher
education and the professions has been the logical con
sequence of an educational system that has inappropri
ately labeled, classified, and tracked minority students into
a set of educational experiences or programs that have
severely limited their opportunities for education and
work in later life.7
Substantial exclusion from the professions is both an
outcome and an essential link in perpetuating this sup
pressed condition ot blacks and other racial minorities.
Idle medical profession is one of the most highly paid and
high status professions in our society. Yet, in 1970,
blacks, who made up 11.1% of the total population, com
prised ofily 2.1% of physicians. U.S. Dept, of HEW,
Minorities and Women in the Health Field, Tables 1, 5
(1970). This means that one out of every 000 white
Americans, but only one out of 3,800 black Americans,
" 01 e physicians, j-hese extremely disparate figures are,
o f course, tied to years of exclusion from medical train
ing. In 1910, for example, only 145 of the 5,000 students
who graduated from medical schools were black. All but
15 of these black students graduated from black medical
schools, [’resident’s Committee on Civil Eights, To Secure
lh esc Bights 07 (1947). This exclusion is still manifest
today. Ihiough their use of affirmative action programs,
medical schools have made some progress over the last
decade towards integration of the medical profession.8 *
7 Several cases have taken cognizance of this. Sec, c.g., Serna v.
Portales Mun. Schools, 351 F. Supp. 1279 (D.N.M. 1972); P. v.
Riles, 343 F. Supp. 1306 (N.D. Cal. 1972); Diana v. California
State Dd. of Educ., Civ. No. C7037 RFD (N.D. Cal., filed Tan.
1970); Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967).
8 See generally C. Odegaard, Minorities in Medicine: From Re
ceptive Passivity to Positive Action, 1966-76 102-03 (1977). We
discuss this in more depth at Point III, p. 46, infra.
!
Many years of concentrated, effort to include minorities
in medical training will be required, however, to cure the
overall disparity.
The exclusion of blacks iu cl other minorities from the
medical profession is replicated throughout the profes
sions and other types of high-incomc/high status employ- •
meat. For example, minority lawyers made up only 3.3%
of the 390,000 lawyers employed in 1970;° and black law
yers made up only 1.7%.10 As recently as 1974, blacks
occupied only 1.5% of the total number of professional
jobs in firms that reported to the Equal Employment
Opportunity Commission. A. Brimmer, The. Economic
Position of Black Americans: 1976, 29-30 (1970).
These economic and educational data demonstrate un
mistakably that blacks and similar racial minorities con
tinue to be deprived of full participation in the benefits
of the nation.
That condition reinforces their continued stigmatiza
tion. Low economic and educational status supports as-
15
0 Bureau of Labor Statistics, Employment and Earnings 8 (Table
1) (Jan. 1977).
10 In testimony before the Senate Subcommittee Hearing on CLEO
Appropriations for Fiscal Year 1976, held in April 1976, James Cald
well of the AHA estimated that there were approximately 7,500 black
lawyers and 380,000 white lawyers in the profession.
Even the black lawyers who had the fortitude to embark upon a
legal career in a hostile white world were formally excluded from
some of the profession’s important institutions, such as the American
Bar Association and the Washington, D. C. Bar Association, until
about 20 years ago. J. Javits, Discrimination-U.S.A. 227 (1960).
They were also excluded from most law schools until Swcatt v. Pain
ter, 339 U.S. 629 (1950) was decided. H. Davie, Negroes in Ameri
can Society 163 (1949).
16
sumptions by die majority of the inferiority of persons
of color. 1'hese assumptions of inferiority are the basic
and necessary foundation for social norms that guide and
perpetuate majority discriminatory behavior.11 By this
circular process, the exclusionary system begun with the
approval of the law has now achieved a life of its own.
Ihe system of exclusion has not been, and cannot be,
effectively undone merely by the elimination of de jure
racism. Our social institutions must also act directly on
the economic, political, and social attributes of the sys
tem, which has fixed upon racial minorities a pervasively
inferior status, the palpable badge and incident of con
tinuing servitude. To install fully the mandate of the
Thirteenth Amendment, all of the parts of the system of
exclusion must be dismantled.
. *n <r lork v' Universal Builders, Inc., 401 F.2d 324 (7th Cir.
1J74) for mslancc, defendant lu>mescllcrs‘ were charged with vio-
atmg 42 U.S.(.. § 1982 hy including a “ghetto tax” in the price of
homes they sold to blacks. They argued that if the market price of
homes for blacks was higher than the price of comparable homes for
whiles, that was merely the result of other acts of discrimination
which constricted the housing market for blacks and drove up prices
and that they did not violate the law by taking advantage of the con
dition of the housing market with respect to blacks. The Seventh
Circuit Court of Appeals, however, rejected this limiting interpre
tation and held that a claim of discrimination could be made out under
t ie Act ̂by proof of exploitation of a discriminatory situation al-
ready existing and created in the first instance by the action of per
sons other than defendants.” 401 F.2d at 328. The badges and inci
dents of servitude necessarily may encompass more than specific dis
criminatory acts.
IT
C. The University o f Cnifornia’s race-conscious admissions
program is a direct and effective means to overcome
the badges and incidents o f servitude as they continue
in the medical profession.
In the first two years of the University of California’s
Medical School at Davis, extremely few minority appli
cants were accepted for admission. Continuation of that
situation plainly would have served to perpetuate the
badges and incidents of servitude as they are manifested
in the medical profession. The medical .school’s direct
action to integrate its student body and the medical pro
fession through the use of race-conscious admissions pro
cedures constitutes a substantial effort to disrupt the in
terdependent and self-perpetuating nature of the system
of racial exclusion. It serves both to increase the number
of minority physicians and to create the visible presence
of qualified minority professionals which is necessary to
counteract pervasive prejudicial stereotypes .about the
lack of capacity of minority group persons.
The faculty of the medical school at Davis, authorized
by the Begents of California, is fully competent to deter
mine that the continued exclusion of blacks and similar
racitd minorities from the medical profession is a badge
and incident of servitude. The term “ badges and inci
dents” is not frozen into the Constitution with a single
meaning. It is a broad standard that permits society’s
institutions “ rationally to determine what are the badges
and the incidents of slavery.” Jones v. Alfred II. Mayer
Co., 3!)2 U.S. 409, 440 (1968). Congress, for instance, has
determined that it should include private acts of racial
discrimination with respect to the purchase or lease of
real estate (42 U.S.C. § 1982) and the making of con
tracts (42 U.S.C. § 1981), including contracts fdr employ
ment, Johnson v. Railway Express Agency, 421JLLSl_454-
18
(1975) and schooling, Runyon v. McCrary, 427 U.S 1G0
(197G). The numerous federal statutes, executive orders
and regulations detailed in Point III, infra, flowing from
both the legislative and executive branches, also give con
tent to the term by authorizing affirmative action to elimi
nate a wide variety of minority exclusions. But the power
to identify and eliminate the badges and incidents of
servitude is not exclusively vested in the federal govern
ment. It may be cxericsed by the states as well.
The Thirteenth Amendment has two sections. The first,
as we have shown, was broadly intended, and has been
broadly construed, to create a strong national policy to
obliterate all “ badges and incidents” of slavery. Sec, e.y.,
Jones v. Alfred 11. Mayer Co., supra; Runyon v.’ Mc
Crary, supra. The second gives Congress the power to
enforce that amendment. Because the federal government
has only the express or implied powers granted to it by
the federal Constitution, see, e.y., McCulloch v. Maryland,
17 U.S. (4 Wheat.) 31G ( I SIB),12 the framers o f the Thir
teenth Amendment felt that it was necessary to make
absolutely clear, by section two of the amendment, that
Congiess hail the authority to enforce section one. But
responsibility to enforce the Constitution exists no less
on the state than on the federal level. IJ.S. Const, art.
VI. See, e.y., Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).
No specific grant of power need be made to the states
to authorize this enforcement. Such power is inherent in
“ This government is acknowledged by all to be one of enumera
ted powers. The principle, that it can exercise only those powers
granted to it . . . . is now universally admitted." 17 U.S. at 405.
i
the residual or police powers of the states.1'1 Cf. Leisy v.
Hardin, 135 U.S. 100 (1890). This was made clear by
supporters of the Thirteenth Amendment in post-ratifica
tion debates concerning the constitutionality of the Civil
Bights Act of 18GG which had been drawn pursuant to
the amendment’s authority. “ So far as there is any power
in the states to limit, enlarge, or declare civil rights, all
these are left to the stales [by the Thirteenth Amend
ment and acts adopted pursuant thereto.]” Coxa. Globe,
39th Cong., 1st Sess. 1832 (1SGG).* 11 So long as the state’s
19
13 The classic explication on the police powers of the states is to
be found in E. Freund, The Police Poivcr (1904). Section two of
the Thirteenth Amendment, explicitly granting enforcement powers
to Congress, was not intended to deprive the states of similar power.
Because of the federal nature of the government, an explicit grant
was thought to he necessary for the federal Congress but not for
the states.
11 See also the remarks of Senator Trumball, 39lli Cong., 1st Sess.,
at 77, where he refers to “ local legislation” to “ provide for the
real freedom” of former slaves. It should he noted that many who
supported the Thirteenth Amendment did so because of a “natural
rights” philosophy which was deeply held. Sec teuBroek, Thirteenth
Amendment to the Constitution oj the United States, 39 Cal. L. Rev.
171, 197-200 (1951); Buchanan, The Quest for freedom : A Legal
History oj the Thirteenth Amendment, 12 lions. L. Rev. 1, 18-21
(1974-75). The thought that the states were precluded in some way
from effectuating the Thirteenth Amendment would have been ana
thema to them.
It is instructive, in this regard, to note that Representative Bing
ham, the prime framer of the Fourteenth Amendment, discussed the
role of state governments in explaining the need for that amendment:
The nation cannot be without that constitution, which made
. us “one people” ; the nation cannot be without the state gov
ernments to localize and enforce the rights of the people un
der the constitution . . .. centralized power, decentralized ad
ministration expresses the whole philosophy of the American
system.
Cong. Globe. 42nd Cong., 1st Sess., Appendix at 85 (1871).
actions are not inconsistent with congressionally pro
claimed policy, they must therefore he upheld.
While it might be argued that, for institutional rea
sons, courts should not by themselves venture beyond
dealing with the legal rules that are implicated in the
badges and incidents of servitude, other social institu
tions, including instrumentalities of the states, are fully
competent to go further. Compare Palmer v. Thompson,
403 U.S. 217 (1971) with Jones v. Alfred II. Mayer Co.,
supra. As Justice Brandeis wrote: “ It is one of' the
happy incidents of the federal system that a single cour
ageous State may . . . servo as a laboratory; and try
novel social and economic experiments.” New State Ice
Co. v. JAehmann, 285 U.S. 2G2, 311 (1932) (dissenting
opinion). It. is especially appropriate that the states and
their agencies should have the power to experiment with
remedies when they arc attempting to insure fundamental
rights.
No rights are more fundamental than those which flow
from the command of the Thirteenth Amendment. Davis’
affirmative action program is such an experiment. It
clearly meets the test adopted in Jones v. Alfred II.
Mayer Co., supra, from McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 31G, 421 (1819):
Lot the end be legitimate, let it be within the scope
of the constitution, and all means which are appro
priate, which are plainly adapted to that end, which
are not prohibited, but consist with the letter and
spirit of the constitution, are constitutional
392 U.S. at 443.
20 21'
I I .
Bakke has no Fourteenth Amendment claim that
overrides the University of California’s implementa
tion of the Thirteenth Amendment.
A . The California Supreme Court erroneously interpreted
' the Fourteenth Amendment in a manner that eviscer
ates the Thirteenth Amendment.
By failing to consider the significance of the Thirteenth
Amendment, the California Supremo Court grossly dis
torted the application of the equal protection doctrine to
thi s case. It established colorblindness as a virtually in
superable command of the Fourteenth Amendment. Bead
ing the Fourteenth Amendment in this way strikes at the
very core of the Thirteenth. As we have demonstrated
above, the badges and incidents of servitude continue to
be imposed on persons of color and only on them.10 The
elimination of the. badges and incidents means achieving
a change in that condition. v\s these concepts apply in
this case, eliminating the badges and incidents requires
an increase in the number and percentage of blacks and
similar racial minorities in medical schools and the medi
cal profession. Inevitably and logically, such a remedy
must identify the victims of racial exclusion on the basis
of their race. Furthermore, the remedy must be directed
primarily at specific racial minorities: it is their condi
tion that must be changed. A colorblind application of
the Fourteenth Amendment will only “ operate to ‘freeze’
the status quo of prior discriminatory . . . practices,” 15
15 Involuntary servitude can be imposed on persons without re
gard to color. This is also in violation of the Thirteenth Amendment.
But this case involves the principal application of the Amendment, to
the condition of blacks and similar racial minorities.
2 2
Griggs V Duke Power Co., 401 U.S. 424, 430 (1971) Ion*
,ms “ the poiut ot t L «
n r e v i lT i l ‘ "i " nilo, t,‘0 W l « <‘ "'J incidents o f servitude
S v n ! r r ' r - ?■ nconcilmg42 U.S.C. 4 11)81 and
™ w n 1 T minO? ti0S- 'vUh a e S ^
vinT-!f “ f,n,le wlules bccause of ‘their race may
ioJ ITS Statutes> McD°Mld v. Santa Fe Trail Transb.
b e ’W ith 27f3 J197G)’ other emPlo * * * *yi»cnt decisions may
e legitimate if done pursuant to an affirmative action
1 o^iam. Id. at 280-81 m 8. Title VIE and 42 U.S.C. § 1981
embody a goal of disregarding race that is at least
as strong, and probably stronger,10 than any similar prin-
P e found ill the Fourteenth Amendment. Yet, the prin
ciple of race blindness does not invariably apply in all
emp oyn'eut situations. When an employer acts" pursu
ant to a care! ally constructed aflirmativo action plan that
ms been designed directly to undo the conditions in which
blacks and similar racial minorities are kept, such an
action advance 3 the purposes of the statutes. Because the
purposes of the statutes are being fulfilled, colorblindness
need not apply.
Similarly, the Fourteenth Amendment is preeminently
an enforcer of the Thirteenth. Using it to strike down a
progiam that implements the Thirteenth, as the California
Supreme Court has done, flies in the face of the historical
circumstances of its passage. The Fourteenth Amendment
10 Wc argue in the following sections that racial distinctions should
only be suspect under the Fourteenth Amendment when a discrete
and insular minority is victimized by them or a slur or stigma is at-
rin|1C< f tlC|r ? 1US’ the Fourteenth Amendment embodies a prin-
situations'CC ndneSS ° nly wUh resPect t0 certain groups or certain
23
was passed to ensure that the evils proscribed by the
Thirteenth were permanently and unmistakably ended.17
the Black Codes, adopted after the passage of the Tlrir-
teenth Amendment
• imposed upon the colored race onerous disabilities
and burdens, and curtailed their rights in the pur-
• filUt4 llfc’ Hborty’ and P«>perty to such an extent
tliat their freedom was of little value.
Ihesc circumstances . . . forced upon the states
men who had conducted the Federal government in
safety through the crisis of the rebellion, and who
supposed that by the thirteenth article of amend
ment they had secured the result of their labors
the conviction that something more was necessary’
in the way of constitutional protection to the un
fortunate race who. had suffered so much. They
•accordingly passed through .Congress the proposi
tion lor the fourteenth amendment.
Slaughter-House Cases, 83 U.S. (1G Wall.) 3G, 70 (1872)
See generally Buchanan, The Quest for Freedom: A Legal
llistoiy of the Thirteenth Amendment, Chapter II 12
IIous. L. Kcv. 331, 332-34'(1975). 1
The California Supreme Court further distorted the
bqual 1 ro tec Li on Clause of the Fourteenth Amendment
by applying what it styled a “ less detrimental means”
17 Tins is one point on which all historians of the Fourteenth
Amendment agree. See, e.g., H. Flack, The Adoption o f the Four
teenth Amendment (1903) ; J. tenBroek, The A n tisla zrry .O n g Z of
lL m m 4 ^ n (19,51,i L- War“ ff’ <1
7l Jtt f l ’ FaT o n7 D°CS lhe Fourteenth Amendment Include the Bill of Rightst, 2 Stan. L. Rev. S (1949).
standard. See Bailee v. Regents of the Vniv of Cal IS
S ' “ f t ? A » c S i S S !
f t) tt •’ In S° d° lng' lfc lnevi^bly doomed the effort
of the University of California to give life to the Tldr
noss We Usl of0"?- ^ PUttinff thG Ullivcrsity the im- possible task of disproving ,a negative, that is that no
" ,o" 'o<i wus av“ iiabi° toresult The court gave no authority for its particular
formulation of the “ less detrimental means” test or its
idiosyncratic application to this case. Actually, if this'
test applies at all,18 the legal standard is more properly
formulated as the most “ precise” means or most narrow
634 if 19731 °Jl !nSpance’ 111 Sugarman v. Dougall, 413 U.S.
ficationj that) S “ “ “ * “ « « * * * •
the jiicans the State employs must be precisely .
diawn m light of the acknowledged purpose.
Section 53 is neither narrowly confined nor pre
cise in its application. 1
/</. at 043 (oiniiliasis added). This statement of tile stand-
ard, rather Ilian the California court’s misleading applica
tion of it, is consistent with a similar standard used
in situations involving First Amendment and other fiin d j
4S3 M M o V 'o ‘ f ’- S ' ' , Shdlm v- rvcU r, 304 U.S. 47!),
433 (1JOO) (a legitimate government “purpose cannot
he pursued hy means that broadly stifle fundamental per
sonal liberties when the end can he more narrowly
acluevein (emphasis added); Union Free
Z ou t : D, S- 62! ’f 32(1%9> (N W York
"°'t acoomp,ish its ™
24
18 Immediately below, we argue that it should not.
25
------- i-iiLiMU's mis stand
ard wlien tiie standard is properly defined. The purpose
of the medical school’s program is to eliminate the badges
and incidents of servitude in the medical school and the
medical profession through-the racial integration of those
institutions and not merely to eliminate some non-racial
socio-economic disadvantage. The method used to achieve
that end—identifying from among a large group of quali
fied applicants those who belong to rac?al minorities and
assuring that a representative proportion of those appli
cants are admitted to the school—is the most precise .and
duect way of increasing minority representation at the
school and m the medical profession. The method chosen
is not a single degree broader than the crucial goal which
the University seeks to achieve.10
Not only did the California court misconstrue a stand
ard derived from the First Amendment context* it erred
in even importing that standard into a case such as this
which requires a reconciliation of Thirteenth Amendment
and purported Fourteenth Amendment interests. The most
precise means test was derived to adjust conflicts between
the fundamental rights of citizens and the police powers
of the government. It serves to'prevent an overbroad
limitation of fundamental rights. But in this case the
competing claims are different. The government’s interest
m implementing the command of the Thirteenth Amend
ment carries a fundamental importance in our constitu
tional scheme far beyond the simple application of the
police power. On the other side of the balance, Bukke’s
10The California court seemed to invite the creation of some nl,
fuscafory method to achieve racial inclusion without overtly Snsider*
rn l™ 6' U h lCl SU.̂ mit' however' that alternative “ non-racial” me
in d i s ^ iS ^ * VUlnCrable t0 aUack as race COI1scious methods
2G
claimed interest in having his race ignored, even if that
interest is deemed to call for strict scrutiny by the Court,20
is not written directly into the Constitution and is not
fundamental ’ as that concept has been developed with
regard to other interests, such as freedom o f speech or
voting.21 ] f having one’s race ignored were in itself a
fundamental right, this Court could not have allowed
the explicit racial sorting approved in United Jewish Or
ganizations of Williamsburgh, Inc. v. Carey, 45 U S L W
4221 (March 1, 1977).
Amici ur«'c tllis Court to reject the California court’s
use of a “ less detrimental means” test which not only
piecludes the eradication oi the badges and incidents of
servitude but misconstrues and misapplies the standard
developed by this Court. Until these badges and incidents
aie eradicated, the Thirteenth and Fourteenth Amend
ments must retain the balance with which they were
adopted, and the Fourteenth cannot require colorblind
ness.
B. The California Court erred in applying the strict scru
tiny test in this case.
In determining whether or not a classification is sus
pect, and thus subject to strict scrutiny, this Court has
looked to whether or not “ [t]he system of alleged dis
20 We argue below in Point II-B that it does not call for such
scrutiny.
21 While disregarding race in decision-making may be viewed as
a desirable goal, it is not the only principle embodied in the Equal
Protection Clause and is not an absolute limit on the means used to
achieve that goal. See Wasserstrom, Racism, Sexism and Preferen
tial Treatment: An Approach to the Topics, 24 U.C.L.A L Rev
581 (1977). . '
crimination and the class it defines have . . . the tradi
tional indicia of suspectness: the class is . . . saddled with
such disabilities, or subjected to such a history of pur
poseful unequal treatment, or relegated to such a position
oi political powerlessness as to command extraordinary
protection from the majoritarian political process.” San
Antonio Indcp. School Dist. v. Rodriguez, 411 U.S. 1, 28
(1973). See Mathews v. Lucas, 427 U.S. 475 (197G); Fron-
tiero v. Richardson, 411 U.S. G77 (1973).
Ihe California court ignored the Rodriguez test and its
underlying rationale. Instead, it chose to introduce a
new and anomalous formulation of the equal protection
standard of review. The California court’s formulation
requires the application of strict scrutiny “ where the
classification results in detriment to a person because of
his race,” Bahlce, supra at 49, 553 P.2d at 11G2, 132 Cal.
Kpt.r. at G90, regardless of the fact that no “ stigma is
cast upon them because of their race.” Id. at 50, 553
P.2d at 1103, 132 Cal. Itptr. at 091. Allirmance of Cali
fornia s standard oi review would mark a dangerous de
parture from this Court’s careful interpretation of the
Equal Protection Clause. It would require the very result
that this Court recently rejected in United Jewish Organi
zations of Williamsburgh, Inc. v. Carey, 45 U.S.L.W. 4221
(March 1, 1977), i.e. a color-blind application of that
' clause.22
The equal protection test articulated in Rodriguez is
the logical formulation of this Court’s concern with preju
dice against insular and discrete minorities. This focus
27
•22As Professor Paul Freund has written, "[ejqtial protection, not
color blindness, is the constitutional mandate, and the experience with
liberty of contract should caution against an absolute-legal criterion
that ignores practical realities.” Freund, Constitutional Dilemmas
45 B.U.L. Rev. 13, 20 (1965). '
28
—7ms been clear since the Court’s earliest decisions. Seet
c.g., lick 1 Vo. v. llopkins, 118 U.S. 35G (1886); Strauder
v. West Virginia, 100 U.S. 303 (1870). Similarly, the
“ more exacting” scope of review called for in footnote 4
of the Carotene Products case was aimed at the
review of statutes directed at particular . . . racial
minorities . . . [where] prejudice against discrete
and insular minorities may he a special condition,
which tends seriously to curtail the operation of
those political processes ordinarily to be relied
upon to protect minorities, and which may call for
a correspondingly more searching judicial inquiry.
United States v. Carotene Prod. Co., 304 U.S. 144, 152n.
4 (1938) (emphasis added).23
23 Although it could he argued that remedial racial classifications
are "directed at minorities,” J. Shelly Wright lias stated:
I submit that compensatory legislation favoring Negroes would
not he unconstitutional even though it made racial classifica
tions and even though similar legislation favoring whites
would violate equal protection. . .'. [TJlic function of equal
protection here is to shield groups or individuals from stigma
tization by government. Whether or not particular legislation
stigmatizes is largely a sociological question requiring consid
eration of the structure and history of our society as well as
examination of the statute itself. Legislation favoring Ne
groes, then, would he constitutional because it is rational and
because in our society it would not stigmatize whites.
Wright, The Role of the Supreme Court in a Democratic Society—r
Judicial Activism or Restraint?, 54 Cornell L. Rev. 1, 17-18 (1968).
See also Judge Wright’s opinion in Hobson v. Hansen, 269 F. Supp,
401, 492-503 (D.D.C. 1967).
(Footnote continued, on folloivitig page)
29
Racial classifications that servo to keep a historicallj
disadvantaged race in a disadvantaged position, set
Hunter v. Erickson, 393 U.S. 3S5 (19(i!>); Anderson v
Martin, 373 U.S. 399 (1964) or that brand a race as in
ferior, see Loving v. Virginia, 38S U.S. 1. (19G7); Me
Lauglilin v. Florida, 379 IJ.S. 184 (1961); Frown v. Pour a
of Educ., 347 U.S. 483 (1954), therefore violate the con
stitutional guarantee of equal protection. Hut. where the
purpose of the classification is not to discriminate against
a minority group, .sec Tancil v. Woods, 379 U.S. 1£
(19G4) or where there is an obligation to lake affirmative
steps to promote racial integration, see Otero v. Ncu
York City lions. Aulh., 484 F.2d 1122 (2d Uir. 1973), a
racial classification will be upheld “ even (bough this may
in some instances not operate to the immediate advan-
(F o o t n o t e co n tin u e d f r o m p r e c e d in g p a g e )
A m ic i arc also aware of the concern that a "purportedly preferen
tial race assignment may in fact disguise a policy that perpetuates dis
advantageous treatment of the plan’s supposed beneficiaries." U n itco
J ew ish O rg a n iza tio n s o f ll 'i ll ia m sb u rg h , I n c . v. C a r e y , 45 U.S.L.W
4221, 4229 (March 1, 1977) (Brennan, J., concurring). That dangei
is not present in this case. It is quite true that special programs that
label groups as "culturally deprived,” “exceptional children," and
“physically and mentally handicapped” may result in stigmatizatioa
But there are criteria that distinguish these from preferential treat
ment. Labelling on the one hand, is a method of social control where
those who have power in decision-making (the majority) limit the
opportunities of the minority by giving them a label that emphasizes
disability and lower social status. Preferential treatment, on the
other hand, is a method that reduces social control by the majority
by expanding and equalizing opportunities of the niinority group
based on the strengths and potentialities of these individuals. It is
agreed that the minority students pdmilted to the University of Cali
fornia under the Davis program are fully qualified to study medicine
and become doctors. To say preferential admissions may increase
stigma for the special group therefore misunderstands the substance
of the special admissions program.
f
30
tage of some nomvliite [historically disadvantaged] per
sons.” Id, at 1125.
Bakke has not claimed he is a member of an “ insular
and discrete minority” that has historically been relegated
to a “ position of powerlessncss” or that is in need of the
Court’s protection against “ the majoritarian political pro
cess.” On the contrary, whites continue to enjoy an arti
ficially superior position that represents the final legacy
of chattel slavery. Whites are twice as likely as blacks
to finish high school or college,'and even more likely to
become professional persons, but only half as likely to
be unemployed.24 25 As a group, whites will earn more, live
in better housing, control the political and economic pro
cesses in the country, and even live longer than blacks.
In short, a classification of whites bears none of the tra
ditional indicia of “ suspectness.” 26
More than a century ago, this Court recognized that,
when a member of the majority group is affected by a
legislative classification, the remedy is at the polls.
Slaughter-—House Cases, 83 U.S. (10 Wall.) 3G (1873).
Heretofore, it has not departed from that rationale and
has limited the application of a strict standard of review
to classifications affecting “ insular and discrete minori
ties” that have been relegated to positions of powerless
ncss. See Examining Bd. of Eng’rs, Architects & Sur-
24 U.S. Dept, of Commerce, Bureau of the Census, Statistical Ab
stract of the United States 123, 361, 373 (Tables 198, 199, 582, 601,
602) (1976).
25 It should also be noted, as Justice Stevens recognized in Craig v.
Boren, 97 S. Ct. 451, 464 n.l (1976), that “ [m]en as a general class
have not been the victims of the kind of historic, pervasive discrim
ination that has disadvantaged other groups.” Bakke is not entitled
to any special protection arising out of his status as a white male.
31
vcyors v. Otero, 42G U.S. 572 (197G); Froid wro v. Rich>-
*ardson, 411 U.S. G77 (1973); Hernandez v. Texas, 347 U.S.
475 (1954) (Mexican-Anicricans).
The Court’s formulation of the suspect class doctrine
is based upon important principles of constitutional law.
The separation of powers doctrine and deference to our
system of federalism mandate that the Court refrain from
acting as a super legislature when the interests of those
who control the majoritarian political process are affected
by legislative action. Conversely, majoritarian forces can
not legislatively strip away the rights of those who do
not have access to or an equivalent amount, of influence
on the legislative process. South- Carolina State High
way Dep’t v. Barnwell Bros., Inc., 303 U.S. 177 (1938);
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 31G (1819).
By subjecting legislation that affects majoritarian noil-
victimized interests to strict scrutiny, tb• ■ ( ourt would
create “ a situation which invites conflict between the
courts and the legislature.” Koclfgcn v. Jackson, 35;> It.
Supp. 243, 251 (1). Minn. 1972), aff’d, 410 U.S. 97G (1973).
The justifications for the University of California’s ad
missions program meet any standard of rev iew properly
applied under the Fourteenth Amendment. We have al
ready argued that the complete implementation of the
Thirteenth Amendment is, in the fullest sense of the term,
a compelling need in our society. But the University of
California has substantial justifications even beyond that,
which fully support its program.
First, there are gross and tragic disparities in the inci
dence of death and disease between whites and non
whites. The infant mortality rate in 1950, for example,
was 2G.8 for whites and 44.5 for nonwhites. Tn 1971, this
disparity was 16.8 for whites as opposed to .”0.2 for non
whites, a difference of 13.4 and a decrease over the 21-
32
year period of 37.7% for whites and 31.1% for nomvhitcs.
Darity, Crucial Health <0 Social Problems in llic Black
Community, J. Black Health Perspectives 30, 42 (dune/
July 1074). Similiarly, in 1940 the maternal mortality
rate was 2% times as high for nonwhites as for whiles,
id. at 44, but in 1971 nonwhite mothers died in child birth
four times as often as white mothers. Spruce, Toward a
Larger Representation of Minorities in .Health Careers,
G4 J. Nat’l Med. A. 432-30 (Sept. 1972); In addition, a
1974 report showed that hypertension is 00% higher 'in
nonwhites, and kidney disease and death that result
fioin it aie twice as likely to strike nonwhites in their
peak earning years o f 45-54 as whites. Mills, Each One
Teach One, J. Black Health Perspectives 1, 5-10 (Aug./
Sept.. 1974% J he death rates for cardiovascular diseases,
influenza and pneumonia, diabetes, liver diseases, and
tubci culosis are also alarmingly higher for nonwhites
than for whites. Darity, Crucial Health <C; Social Prob
lems in the Black Community, supra, at 40. finally, since
1920 the gap i.i life expectancy between whites and non
whites has na rowed by only 2.9 years, from 9.0 years to
0.7 years. In 1971, life expectancy ‘was 71.9 years for
whites and G5.2 years for nonwhites. Id. at 34.
Such inequalities in medical condition demonstrate a
compelling need to increase the number and percentage
of minority physicians. Decent studies have demonstrated
that minority physicians are more likely to engage in
primary care practices, particularly in medically under-
served areas. Such physicians are locating at unprece
dented rates in the rural and urban South and in large
cities where there are concentrations of low income popu
lations. Also of great significance is the fact that minority
physicians are more likely than other graduates of Ameri
can medical schools to practice in large city public hos
pitals, neighborhood health centers, and other public insti-
33
tuitions responsible for providing medical services to low
income, typically underserved populations.20
Second, the racial integration of medical schools directly
serves to stimulate the quality of education that takes
place there and to heighten the sensitivity of inodical stu
dents-.to the perceptions and needs of a variotv of groups.
Diversity, particularly in a setting such as a school where
the student's have many common goals, call foster interest
and curiosity and encourage mutual respect and under
standing. See M. Deutsch, The Resolution of Conflict
(1973); Cook, “ Motives in a Conceptual Analysis of Atti
tude Belated-Behavior” Nebraska Symposium o n Motiva
tion, 179 (1909); Cook, The Affect of Unintended Inter
racial Contact upon Baeial Interaction and Attitude
Change, Final Report, U. S. Office of Education, Project
No. 5-1320 (1971).
C. The University o f California’ s program does not de
prive Bakke o f any constitutionally protected rights.
There is no question that the University of California
could have reserved spaces in the class based on any num
ber of criteria (such as marital relationship to currently
211Physician Choice of Specialty and Geographic Loco linn-. A Sur
vey of the Literature, Chapter 9, Mcdicarc-Mcdicaid Reimbursement
Policies ( Institute of Medicine, National Academy of Sciences, March,
1976); Johnson, ct at., Recruitment and Progress o f Minority Med
ical School Entrants, 1970-1972, J. Med. Educ., Supplement 50
(July 1975); Long & Hansen, Trends in Return Migration to the
South, 12 Demography <501-14 (Nov. 1975); Statistical■ Abstract,
supra, Table 16; Tilson, Stability o f Employment in QUO Neigh
borhood Health Centers, 11 Med. Care No. 5, 3S4-100 (1973);
U.S. Dept, of HEW Health Resources Administration, Bureau of
Health Resources Development, Characteristics of Black Physicians
in the United States, (1975).
J * *
)
3 4
enrolled students or residence in certain- geographic
areas), even though each of these alternatives would have
reduced Bakke’s chances as much or even more than the
system he challenges here. The California Supreme Court
explicitly permitted the University of California to estab
lish a preferential admissions program for “ disadvan
taged” students, even though Bakke’s chances for admis
sion would be burdened at least as severely under such
a program as they are under the current one. In terms
of Bakke’s opportunity to attend medical school, the cur
rent admissions plan is no more detrimental to Bakke’s
interests than other conccdedly legitimate plans.
If Bakkc lias any constitutional claim at all, it must be
in (he fact (hat his race was considered, not in the fact
that his chances of admission were diminished. But that
claim, too, must fail on close scrutiny. The Constitution
is not color blind. Consideration of race can indeed vio
late the Equal Protection Clause when it invidiously
imposes a racial slur or stigma. See United Jewish Or
ganizations oi Williumsburgh, Inc. v. Carey, 45 U.S.L.W.
4221 (March 1, 1977). Bakkc, however, has suffered no
racial slur or stigma by his failure to be admitted. 11 is
exclusion from an admissions program that was directed
at “ disadvantaged minorities” docs not in any way sug
gest that he is unworthy. It is not part of a social ide
ology that holds whites to be inferior. lie is not part
of a group that has generally been stigmatized or de
prived. lie cannot justifiably feel insulted or demeaned
any more by his nonadmission than lie could if he were
rejected for some other reason, such as residence, age,
or marital status.
Furthermore, the University of California’s use of race
as a criterion for minority admissions is analogous to râ -
35
cial hiring programs that have been approved in nine
circuits.27 28
Quotas in employment discrimination cast's are not in
struments of “ reverse discrimination.” Bather, they arc
a vehicle for achieving that rightful place in the work
force that minorities would have occupied but for their
minority status. Rios v. Steamfitters Local G-'tS, 501 F.2d
G22 (2d Cir. .1974); Contractors Ass’n v. Secretary of
Labor, 442 F.2d 159 (3d Cir.), cert, denied, 404 U.S. S54
(1971 ).2S Minority admissions programs are also a legiti
mate vehicle for opening a rightful place in professional
employment to qualified members of a heretofore racially
excluded class.
They are also analogous to the use of mathematical
ratios to achieve racially balanced faculties and staffs as
a step toward desegregating our school systems.29 Al
27 United Stoles v. Ironworkers Local S6, 443 F.2<1 5 I I (0th Cir.),
cert, denied, 404 U.S. 984 (1971); Carter v. Gatin,/her, 452 F.2<1
315 (8th Cir. 1971), cert, denied, 406 U.S. 950 (1972); United
States v. United Brotherhood oj Carpenters' <0 Joiners, Local 169j
457 F.2d 210 (7th Cir.), cert, denied, 409 U.S. 851 (1972); Arnold
v. Ballard. 12 FFP Cases 1613 (6th Cir. 1976) ; Local 53, Interna
tional Ass’n of Heat <0 Brost Insulators <0 Asbestos Workers v. Vog-
ler, 407 F.2d 1017 (5th Cir. 1969) ; Patterson v. American Tobacco
Co., 535 I’’ .2d 257 (4th Cir. 1976); United States v. International
Union o f Elevator Constructors, Local 5, 538 I\2d 1012 (3d Cir.
1976) ; Rios v. Steam fitter Local 63S, 501 F.2d 622 (2d Cir. 1974);
Morgan v. Kerrigan, 530 F.2d 431 (1st Cir. 1976).
28 S. Rep. No. 415, 92nd Cong., 1st Scss. 6 (1971); 1 l.R. Rep. No.
238, 92nd Cong., 1st Scss. 4 (1971), as cited in Franks v. Bowman
Transp. Co., 424 U.S. 747, 764 n.2l (1976).
29 See, c.g., United States v. Montgomery Bd. o f Lduc., 395 U.S.
225 (1969) ; Armstead v. Starkville Mun. Separate Sch>ol Dist., 461
F.2d 276, 280-81 (5th Cir. 1972); Porcelli v. Titus, 431 F.2d 1254,
1257-58 (3d Cir. 1970) ; Kemp v. Beasley, 389 F.2d 178, 187-88 (8th
Cir. 1968); Yarbrough v. Ihdbert-Wcst Memphis School Dist. No.
4, 380 F.2d 962, 969 (8th Cir. 1967); United States v. Jefferson
Cm ,,,tv rid nf Fdur 37? F 2d 836 002 Uhh C\r 10603
30
though such a ratio requires individual whites to bear a
part of the burden of desegregation, this Court has ap
proved because it “promises realistically to work, and
promises realistically to work now.” Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 20 (1971), citing
United States v. Montgomery County Bd. of Educ., 395
U.S. 225, 235-3G (1909) (emphasis in original).
In none of these desegregation cases has the possible
injury to individual prospective white faculty members
triggered a compelling state interest test. Nor have the
classifications been considered suspect or violative of (lie
equal protection rights of white persons. Bather, in the
face of arguments that minority preferences in faculty
promotions were “ racial discrimination in reverse,” tho
Third Circuit, for example, has held that
State action based partly on considerations of color,
when color is not used per so, and in furtherance
of a proper governmental objective, is not neces
sarily a violation of the Fourteenth Amendment. •
• • • [T ]o permit 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.
Porcclli v. Titus, supra, at 1257-58.
Absent a showing that Bakke has been deprived of a
constitutionally protected right or that he has suffered
stigmatization because of his race, this Court should not
dismantle the University of California’s program merely
because Bakke did not get into its medical school. An
affirmance in this case would preclude the admission of
37
many minority applicants who can Icgitimab !y expect to
be admitted if the program continues, and might even
lead to the ouster of approximately 00 minority students
who are presently enrolled in tho school. Although Bakke
did not gain admission, this Court should conclude that
“ a sharing of the burden of the past discrimination is
presumptively necessary [and] is entirely consistent with
any fair characterization of equity jurisdiction, particu
larly when considered in light of our traditional view
that ‘ [attainment of a great national policy . . . must not
be confined within narrow canons for equitable relief
deemed suitable by chancellors in ordinary private con
troversies.’ Phelps Dodge Corp. v. NEED, 313 U.S. at
1S8.” Franlcs v. Bowman Transp. Co., 424 C.S. 747, 777-
78 (1970) (footnote omitted).30
30 While this decision was made in the context of a court-imposed
remedy, this Court also noted that its ruling was hrnad enough to
encompass voluntary agreements designed to ameliorate the effects
of past discrimination since they are “a national policy objective of'
the ‘higest priority’.” 424 U.S. at 779.
See also United Jewish Organizations o f Willianislmrgh, Inc. v.
Carey, 45 U.S.LAV. 4221 (March 1, 1977) (Brennan, J., concur
ring). While cases such as Franks v. Bowman Transp Co., supra,
arose in the form of judicial decrees, the role of the judiciary is not
an exclusive one:
. . . even a legislative policy of remedial action can be closely
tied to prior discriminatory practices or patterns, . . . I believe,
therefore, that the history of equitable decrees utilizing racial
criteria fairly establishes the broad principle that race may
play a legitimate role in remedial policies.
United Jewish Organizations of Williamsburgh, Inc. v. Carey, supra,
at 4229 n.2.
38
__P ‘-T b e Davis program does not unconstitutionally burden
the majority.
(( ^ ie California court erroneously inferred that because
the special admission program denies admission to some
white applicants solely because of their race,” Balclce,
supra, at 47, 553 l\2d at 1161, 132 Cal. ltptr. at 681),
“ whites suffer a grievous disadvantage by reason of their
exclusion from the University'on racial grounds.” Id at
50, 553 P.2d at 1103, 132 Cal. ltptr. at GDI.
The California decision collides with Ibis Court’s recent
holding in United Jewish Organizations of Williamsburtjh,
Inc. v. Carey, 45 U.S.L.W. 4221 (March 1, 1977). Whites
as a group are not excluded from the Davis Medical
School. Bather, they make up 84% of the student body.
Hence, the plan, does not serve to underrepresent the
vhite iace generally and docs not constitute invidious
disci intimation against whites as a class, despite the un
deniable reality that individual whites were affected. Sec
id. at 4227 (plurality opinion), 4231 (Stewart, J., and
Powell, J., concurring). As Justice AVhitc, writing for
the Court in United Jewish Organizations of Williams-
hurgli, Inc. v. Carey, supra, explained:
There is no doubt that in preparing the 1974 legis
lation, the State deliberately used race in a pur
poseful manner. But its plan represented no racial
slur or stigma with respect to whites or any other
race, and we discern no discrimination violative of
the Fourteenth Amendment..
Id. at 4227.
The Davis program similarly used race as a criterion
but, as the California Supreme Court found, the plan did
not represent a racial slur or stigma on white applicants.
39
Bailee, supra, at 50-51, 553 F.2d at 1103, P!:! Cal. Bplr.
at 091.
In addition, the “ burden” whites bear bemuse of the
Davis program is analogous to the “ burden” placed on
white voters in United Jewish Organizations of Williams-
burgh, Inc. v. Carey, supra. Just as the rcdisl riding which
“deliberately increased the 11011-white majorities in certain
districts in order to enhance the opportunity for election
of non-while representatives” did not violate constitu
tional guarantees provided “ there was no fencing out of
the white population from participation in the political
processes,” id. at 4227, a race conscious admissions pro
gram deliberately designed to increase the number of
minority students in medical schools in order to increase
medical service in minority communities does not violate
constitutional guarantees where whites are not fenced out
of the medical profession.
E. California had the power to institute the minority ad
missions program, as a means to further the general
welfare,^ without a showing o f past discrimination by
the medical school.
The California court erred in concluding that, without
any showing of past discrimination by the University, the
minority admissions program violated equal protection.
Balehe, supra at 57-GO, 553 P.2d at 1168-69, 132 Cal. ltptr.
at G9G-97. In implementing remedial programs, state au
thorities have wider latitude than federal courts. A fed
eral court has equitable power to impose such a 'program
only to the extent required to remedy specific violations
of law. Compare Hills v. Gautrcaux, 425 U.S. 2.84 (1976)
with Milliken v. Bradley, 418 U.S. 717 (1974). "state au
thorities, however, have the power to use such means as
they prefer, including special admissions program, as long
40
-as-the moans arc reasonably related to the public welfare.
Gerrman v. Kipp, 45 L.W. 248G (W.D. Mo. April 7, 1977).
The California court confused limits on judicial equita
ble power with the constitutional principles applicable to
this minority admissions program. It said that
[i]t is unconstitutional reverse discrimination to
grant a preference to a minority employee in the
absence of a showing of prior discrimination by
the particular employer granting the preference.
Obviously, Ibis principle would apply whether the
preference was compelled by a court or voluntarily
initiated by the employer. . . . Thus, there is no
merit in the assertion of the dissent that there is
'some undefined constitutional significance to the
fact that the University elected to adopt the special
admission program and was not compelled to do so
by court order. To the victim of racial discrimina
tion the result is not noticeably different under
either circumstance.
Balike., supra, at 58-59, 553 P.2d at 1109, 132 Cal. Nptr.
at G97.31 Nothing in the Constitution requires that state
31 The California Supreme Court also relied oil Chance v. Board
of Examiners, 534 I7.2d 993 (2d Cir. 1976) and Kirkland v. New
York Stale Department of Correctional Services, 531 I7.2d 5 (2d Cir.
1975) for the proposition that remedial action is impermissible ab
sent a finding of past discrimination. A correct reading of these cases
is that court imposed minority preference programs were an inap
propriate exercise of the court’s equitable power on the basis of the
records of the cases before the circuit court. The court did not hold
that a preferential remedy, absent a finding of prior discrimination,
violated equal protection. State action is limited by the constitu
tional standard of equal protection and not by the limits of equitable
jurisdiction.
41
authorities make a specific finding of their own previous
discrimination before instituting measures in the public
welfare to improve the lot of disadvantaged minorities.
i
This Court has recognized 'bat the discretionary power
of public authorities to enforce constitutional rights is
broader than is the power of the judicial branch. Sec
Katzenbach> v. Maryan. 384 U.S. (ill, G53 (.19GG). Iu the
context of the federal Voting Nights Act, the Court clearly
stated: “ The permissible use of racial criteria is not
confined to eliminating the effects of past discriminatory
districting or apportionment.” United Jewish Organiza
tions of U’illiawsburyh, Inc. v. Carey, supra, at 122G. The
difference between the limits of equity jurisdiction and
the constitutional limit on race conscious remedies was
sharply delineated by this Court in Swann v. ( Jiarlottc-
Mecklcnhury lid. of Educ., 402 U.S. 1, 1G (1971):
School authorities are traditionally charged with
broad power to formulate and imph nnnt educa
tional policy and might well conclude, for example,
that in order to prepare students to live in a
pluralistic society each school should have a pre
scribed 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 authorities; absent
a finding of a constitutional violation, however,
that would not be within the authority of a federal
court.
Basic considerations of federalism require that state and
local governments have the power constitutionally to em
ploy benign racial classifications to further the public
welfare. Gerrman v. Kipp, supra. It is well settled that
the states “have constitutional authority to experiment
with new techniques” that are not violative of constitu-
42
— tional guarantees. Day-Britc. Lighting, Jn'c. v. Missouri,
342 U.S. 421, 423 (1952). Any other holding would
threaten the wide range of programs that states have
undertaken in order to increase opportunities for minori
ties in employment through the use of racially conscious
hiring ratios and goals and evaluations of state employ
ment procedures.32
To use the Fourteenth Amendment as a sword
against such Slate power would stultify that
Amendment. Certainly the insistence, by individuals
on their private prejudices . . . ought not have a
higher constitutional sanction than the determina
tion of a State to extend the area of nondiscrimina
tion beyond that which the Constitution itself ex
acts.
Railway Mail Ass’n v. Corsi, 320 U.S. 88, 98 (1954)
(Frankfurter, ,T., concurring). Just as the Newark school
administration in Porceill v. Titus, 431 F.2d 1254 (3d
32 Sec, c.g., District of Columbia, 34 CDRR § 19.3, CCII-EPG
]\ 21,560.53; Maine, Me. Rev. Slat. tit. 5 clt. 65, §§ 781-790, 2 Me.
Rev. Slat. Ann. tit. 5, §§ 781-90 (West, 1961); Arizona, Ariz. Civil
Rts. Comm, Employment Selection Procedures, § 13 (1972), CCII-
EPG 20,495.13; Colorado, Colo. Civil Rts. Comm., Guidelines on
Employment Testing Procedures, § 13 (1972), CC11-RPG 21,060;
Illinois, 111. Fair Employment Practices Commission Affirmative Ac
tion on State Contracts (1975) CCII-EPG 27,475.07; Iowa, Iowa
Admin. Code. 240-2.13 ( 601a), Employment Selection Procedures;
Kansas, Kan. Admin. Reg. § 21-30-18, Guidelines on Employee Se
lection Procedures and Recruitment (1975); Maryland, CCII-EPG
U 23,850 (1972); New York, 9 NYCCR 466.5 (1969), State Div. of
Human lyts., Approval of Minority Group Plans (1976) CCH-EPG
H 26,053; Ohio Civil Rts. Comm., Guidelines on Goals and Time
tables for Affirmative Action Programs (1974) CCH-EPG 26,695;
Washington, Wash. Admin. Code 162-18-010 et seq. (1974).
■4
Qir. 1970) was allowed to include minority status as a
favorable consideration for employee promotion without
any finding that past discriminatory practices or a con
stitutional mandate required such a color-ennsrious pro
gram, the Davis Medical School should be allowed to give
preference after a determination has been made that the
specially admitted students are qualified for admission.
Although preferential admissions programs bear at least
a reasonable relationship to the public welfare, such pro
grams may still “ serve to stimulate our society's latent
race consciousness,” and may be “ viewed â unjust by
many in our society, especially by those individuals who
are adversely affected by a given classification.” United
Jewisli Organizations of Williunisburgh, Ire. v. Carey,
supra, at 4229 (Brennan. J., concurring). These con
siderations require (hat state authorities balance the bene
fits of such programs with* possible undesirable effects.
The test, however, does not require that ]>;ut discrimina
tion bo found but rather that
when a decisionmaker embarks on a policy of be
nign racial sorting, he must weigh the concerns that
I have discussed against the need for effective so
cial policies promoting racial justice in a society
beset by deep-footed racial inequities.
Id.
In the Carey case, this test was met by procedures un
der the Voting Bights Act that enabled administrators
and courts to strike the balance. Similarly, benign racial
classifications in hiring, housing, and telecommunications
(detailed in notes 34-37, infra) have been upheld and
are consistent with the Carey balancing test. The test has
also been met by affirmative minority hiring/programs
instituted by the executive branch, rather than Congress.
43
44
-- In the present case, the California authorities meet the
same test. The program confers substantial benefits on
minorities and on society at large. There is no evidence
that it has any undesirable effects upon minorities. No
complaint has been heard from them. Since all who have
been admitted under the program are fully qualified to
study medicine, their admission imposes no hidden slur
or stigma on them. The balance between the need for the
program and the considerations adverted to by,Mr. Jus
tice Brennan was rationally and properly struck in favor
of the program’s implementation.
Hie California court therefore applied the wrong stand
ard.̂ It confused the state’s broad power to design pro
grams to further the public welfare without a showing
of past disciimination with a court’s more narrow crpiita-
ble power to remedy specific constitutional violations.33 * *
It would be truly ironic for this Court to deny states the
right to act voluntarily to ameliorate the effects of past
discrim, nation and to promote racial integration when •
3,1 The infirmity of the California court’s approach is illustrated by
its reliance on Brunotti v. City of Berkeley, 12 FEP Cases 927 (N.D.
Cal. 1975). In Brunetti, the court invalidated a municipal plan that pro
vided for minority hiring preference by reasoning that “ [t]he cases
clcaily indicate that preferential treatment of minorities is required
and permitted only during a period of transition to a work force in
which all vestiges of past discrimination have been eliminated by
affirmative action.” Id. at 939. Such a holding assumes that the
municipality could only correct its own past discrimination and that
its constitutional power to take steps to guarantee its historically dis
advantaged citizens an actual, continuing opportunity for access to
municipal employment is lost once a municipality has eliminated the
disproportionately low percentage of minorities in its work force at
a particular point in time. Contra, Gcrrman v. Kipp, 45 L.W. 2486
(W.Di Mo. April 7, 1977). '
45
that right has been accorded to unions and private em
ployers,3' as well as the Executive Brandi,33 Congress,36
34 Bcllicer v. Brotherhood of Ry. £ S.S. Clerks, 118 F. Supp. 254
(1953), alfd, 217 F.2d 205 (1954), cert, denied, 349 U.S. 912
(1955) (union and employer may voluntarily modify a seniority sys
tem to eradicate the ellects of past discrimination since this is a na
tional policy ot the highest priority) ; Cranks v. Bornean Transp. Co.
424 U.S. 747 (1976).
EEOC v AT&T, 419 F. Supp. 1022 (E.D. Pa. ITT.) (consent de
cree ordering affirmative action in transfers and promotions “ cmi-
neillb accomplishes the purpose of Title VII ’ «!• • -j>ite absence of
evidence of AT&T’s discrimination in transfer and promotions pol
icies and its denial of liability for such discrimination), aff’d ____
lr-2(1------ . Nos. 76-2217, 76-2281, 76-2285 (3d Lie. April 22, 1977).
33 Contraetors Ass'n of E. Fa. v. Secretary o f Lot; r, 311 F. Supp
1002 ( E.D. Pa. 1970), ail'd, 442 F.2,1 159 (3d fir. 1971), cert,
denied, -if' 1 l.’ .S. 852 (1°71) (the use of specific percentage goals
and timetables “ to remedy the perceived evil that minority tradesmen
have not been included in the labor pool available for the performance
of construction projects in which the federal government has a cost
and performance interest” does not violate equal protection.)
The constitutionality of Executive Order 11246. requiring affirma
tive action by federal contractors has been affirmed in Contractors
Assti, supra; II cincr v. Cuyahoga Community College District 19
Ohio St. 2d 35, 2-19 N.E 3d 907, 90S (1969), cat. denied, 396 U.S.
1004 (1970) ; Joyce v. McCranc, 320 F. Supp. 1281 (I).N.J. 1970);
Southern Illinois Builders Ass’n v. Ogilvic, 327 F Supp 1154 (S o ’
111. 1971), aff’d, 471 F.2d 6S0 (7th Cir. 1972) ; Associated General
Contractors of Mass. v. Altshuler, 490 F.2d 9, 197 (1st Cir. 1973)
cert, denied, 416 U.S. 957 (1974).
86Morton v. Mancari, 417 U.S. 535 (1974) (preferential treat
ment o f tribal Indians in BIA hiring pursuant to the Indian Civil
Rights Act of 1968, 25 U.S.C. § 1301-41 (1970) is constitutional.)
46
-and administrative agencies.37 Until minorities have been
thoroughly integrated into our society, the states must be
allowed, if not required, to take affirmative steps to elim
inate the racial discrimination that has become engrained
in our nation.
III.
Affirmance o f the Dahke decision will stultify the
ability o f political institutions to respond to the social
reality o f race-based inequality.
Since Brown v. Board of Education, 347 U.S. 483
(19.)4), our nation’s social and political institutions have
struggled to dismantle a separate and unequal system.
Responding to the unkept promises of the previous cen
tury and resultant turmoil in the streets, Congress en
acted the Civil Rights Acts of the 1960’s. A body of
case law has thereby begun to develop that is directed
at some of the most crucial aspects of the American
dilemma.
37 TV 9 v. PCC, 495 F.2d 929 (D.C. Cir. 1973) (the Federal Com
munications Commission not only can, blit must, consider favorably
the presence of minority interests in ownership of a television station
when the Commission considers an application for a broadcast license.
“ Inconsistency with the Constitution is not to he found in a view of
our developing life which accords merit to Black participation among
principals of applicants for television rights.” TV 9, supra at 936.
See also Garrett v. FCC, 513 F.2d 1056 (D.C. Cir. 1975).
In Otero v. New York City Housing Authority, 4S4 F.2d 1122 (2d
Cir. 1973), the second circuit held that the state authority’s duty to
promote .racial integration took precedence over its own regulations
that dislocated tenants receive first priority for new rental units.
I
47
It is easy to forgot that the; development o f that law
was neither obvious nor inevitable. It was the product
of a flexible and responsive political process that grap
pled with the issues that are inherent in this inequality
when the best way to the future was unclear. The issues
are as deep and as troublesome now as they were then.
As wo have demonstrated in Point I, the badges and
incidents of servitude have not been eradicated. An af
firmance in this case would deprive our social and politi
cal institutions of the flexibility needed to complete the
task they have just begun. Race conscious affirmative
action mandates have become an integral pari of civil
rights law. Title VI of the Civil Rights Act, for example,
declares:
Xo person in the United States shall, on the
ground of race, color, Or national origin, bo ex
cluded from participation in, be denied the benefits
of, or be subjected to discrimination under any
program or activity receiving Federal financial as
sistance.
42 U.S.C. § 2 0 0 0 d (1970).
IIFW regulations implementing Title VI require that
recipients of federal funding who have “ previously dis
criminated against persons on the ground of race, color,
or national origin . . . must take affirmative action to
overcome the effects of prior discrimination.” 43 C.F.R.
§ 80.3(b)(6 )(i) (1976). The regulations further provide
that “ [c]ven in the absence of such prior discrimination,
a recipient in administering a program may take affirma
tive action to overcome the effects of conditions which
resulted in limiting participation by persons of a particu
lar race, color, or national origin.” 45 C.F.R. § 80.3(b)
(6)(ii) (1976). Similarly, a host of other government
agencies have adopted affirmative action regulations pur-
48
suant to various civil rights acts
ol Agriculture, 7 C P U & ir. o'n\ , r w ?l C'9'’ I)(JI»«rtincnt
! S " i r m - - - ' T i s i " i m ;
u & S w r s m - ' S i ' t * « ■ “C.F.K. § 379.3(b)(3) ( 1 9 7 7 1 k J L°ro1,,ll' ,t,cs 14
Space Aduiinistration i T c F H ^ nnd
1250.103-4( f ) and ( g W l 9 7 7) uv * 1 ^ °-l°3 -2 (7 )(e )f
ity, 18 C.FR. § ^ t \ ^ 7 VaU«y Al,lhov-
national Development, 22 C,F.r / § 2 0 . 0 G)°V/ - T l
Dej)ai linent ot State, 2 2 C F 1 ? & 1 4 1 an wr w-? ^ ^ ’
( W C ) ; H o u s i n g a n d U r t n i V v ( ) ( ^ ^ a m I ( i i >§ ].4f|,Wfi\ n „ 7 r\ is Development, 24 C.F.R.
a 'll ' i f h w n n n ^Department ol‘ Justice, 28 O F It
d . i. f f l “ 30 & V 7> « 1 ,,7,!) i
; 70) ; D e p a r t m e n t o f t h e I n t e r i o r 42 (] T? ]? & 1 7 0 , 1 !
aciallj non-discrimmatory, the Internal Revenue Service
haS ^tonmnod that it is not discriminatory to favor
lacial minority groups when the purpose and effect is to
p “ cn °7 5 a ™c*a" y no»-‘Wscriininatory policy. I.R.S. Rev.
Fx 2 7 0 * 3 *'°2' 8CC a S° L1{-8 - ] i ( - § 03.4945-4(b) ( 1 ),
U Sh424CTJI)7n''-e0iSi0? in GS m V- Dule P am r C° - « 1 . , ' 424 (1971) is a clear affirmance of the congressional
intent manifested by Title VII, 42 U.S.C. § 200S. ct sen
to eradicate employment patterns that historically have
excluded minorities. To achieve the Act’s purpose, the
A *4:»A »
4- . -
49
federal courts have sanctioned quotas or numerical goals
as remedies lor past discrimination and its effects.38 The
past discrimination that tr'ggcrs the quoin remedy is
demonstrable by the impact of employer screening prac
tices upon excluded groups. Griygs v. Du/.r power Co
supro .Special admissions programs of professional
schools are a similar response by state agencies to the
reality that minorities are disproportionately excluded
Iron, professional employment. Reflective . . f ‘this is the
substantial increase in minority enrollees in medical
schools. Over the past •nine years enrollment for all
minorities in medical school has risen from 2,1'F in 1998
to S.i;c in 1979, with the percentage of black enrollees
rising from i} k)r',< fa =*o c* i\,\ iu . . . , ' c■ C■ Ddegaard, Maturities in
Muliunc: !• ruin I,ccrphve Passivity to 7V // .I (; Action
31 (1!R7). I his laudable turnabout mine'after
more than tvvo-tliirds of the nation’s medical -.-bools modi-
. their admissions criteria “ by adding to the list of
bingrnplmr.1 considerations attention to rime or ethnic
bar.,ground related ... particular to underrepresented mi- ’
— .ties. 1,1 at 102-03). Afiir,nance of the California
, r , S * *r C 'V ’- l 'V 1’ s,: tra- Sce ah‘> 1}F-0C V. AT&T, 5.1 r, F.2d 7 35
] j n- n -n 'C , ' p - - 7 1,1 t'arl a" ‘l ti,slliissinp ill part, Fn F Supp
l o r / i i ’ - , ? ; I>/- ) : ' !!'tcd S,atcs v- National L a i Indus. / , ! ? '
bar 4-P F 24 159 m V ^ 1 C°'“ ra.clors A s s ' n v- A.v.v/.try of La- or, 4 1- I .2d 159 (3,1 Car.), ccrt. denied, 404 U.S. 851 ( V>71).
It is significant that a recent study showed tint ti„. , ., ,•
for minorities in medical schools compares favorably wi,h\ I™ ♦
rate for non-minorities, thus d i s c i n g n , « l , V ' ‘ “ '’
entrant ̂are unqualified. Johnson, et a! Recruitment r , t P *
of Minority School Entrants, 19 0-72 i Med Edu g T ™
50 713 0 9 7 5 ); C. Odegoard,
ceptwe Passivity to Positive Action 3 4 -4 1 (1 9 7 7 )
50
Supremo Court could, in an instant, eliminate the slow
progress toward integration so far achieved by the na
tion’s medical schools.
Admission to professional schools is the key to entry
into the higher echelons of the American work force.
Unless professional schools can employ a Griggs-typo. test,
analyzing minority access to professional training and
the professions specifically in terms of race, the employ
ment discrimination that Title VII was designed to eradi
cate will continue for positions of power and influence in
this country.40
It flies in the fact of reason to suggest that what may
he done by the legislative, executive, and judicial branches
of 4ho federal government to effectuate the Thirteenth,
Fourteenth, and Fifteenth Amendments may not bo done
by the educational agencies of the states to achieve the
same objective.
40 Oil a Griggs “ impact” analysis of minority access to professional
training, it is clear that traditional admissions criteria have erected
an extraordinary harrier that has prevented minorities from attaining
professional status. That barrier lias been so pofound as to consti
tute, prima facie, a showing of intentional exclusion.
See the concurring opinion of Justice Stevens in Washington v.
Davis, 426 U.S. 229, 252-56 (1976), where he explains:
Frequently the most probative evidence of intent will be
objective evidence of what happened rather than evidence de
scribing the subjective state of mind of the actor.
Id. at 253.
Sec also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805
n.19 (1973), quoting Blumroscn, Strangers in Paradise: Griggs v.
Duke .Poioer Co. and the Concept of Employment Discrimination, 71
Midi. L. Rev. 59, 92 (1972), in which the Court indicates that statis
tics of racial composition may themselves be “ reflective of restrictive
or exdusionary practices.”
51
. This Court’s affirmance of the California Supreme
Court's decision would inevitably call into question not
only the power and duty of the states 1o support the
Constitution but federal power to pursue a flexible and
efficient course to end institutionalized racial exclusion.
IV .
The Rutgers minority student program demonstrates
that special admissions programs can “ work” and
“ work now ” to effectuate the Thirteenth Amendment.
The Rutgers Law School has attempted by its minority
student program to meet the concerns, expi'-.-ed by Mr.
Justice Brennan at the dedication of ‘ the Law School
building in 1966:
[T]he law schools have experienced almost no suc
cess in attracting Negro college students to law as
a career. . . .
. . . . And I am sure all of us will agree that, as [has
been] said, “ There are reasons why a special effort
should be made to attract Negro students to law
study. In the effort to provide equal rights and
opportunities for Negro citizens, t h e n - are heavy
responsibilities and burdens for l a w y e r s to carry.
Those can best be met by a Bar wliwli includes
Negro lawyers in significant numbers, for it is
those lawyers who most clearly understand the
problems and difficulties faced by members of the
Negro community. In bringing legal counsel to the
poor, in administering criminal justice, as well as
in the struggle for civil rights, an increased num
ber of Negro lawyers can make a great contribu
tion.”
52
Brennan, The Law School of Tomorrow, 89 N.J.L.J. 801,
807-08 (1900).
In 1908, less than 100 members of the New Jersey Bar
of 8,000 Avere minority persons. The failure of the Law
School to increase that number Avas reflected in the fact
that, out of approximately 1 , 2 0 0 students avIio had gradu
ated between 1900 and 1908, only 12 Avere black. The
faculty recognized that this exclusionary pattern had two
major results. First, it restricted the availability of legal
services to the nomvhite population of the state and the
representation of the nomvhite population Avithin the
legal/polilical system. Second, and equally important, an
ovcTAvhclmingly Avhite student body necessarily Avould fail
to provide “ the interplay of ideas and the exchange of
vieAvs Avith Avhieh the laAV is concerned.” Swcatt v.
Painter, 329 U.S. 02!), 031 (1950). Therefore, black stu
dents Avere being denied access to a legal education and
Avhite students Avere being denied the kind of education
that Avoid 1 prepare them to practice law in a heterogene
ous and complex society.
In 1908, on an experimental basis, the LaAV School fac
ulty established a minority student program. The pro
gram added 20 places to the first-year class that Avere
reserved for the special admission of qualified black and
other minority students, Avith the goal of increasing that
number to 40 in the folloAving year. In 1973 the success
of this experiment led the faculty to expand the program
to include 50 minority students as an addition to each
entering class, assuming a regularly admitted class of
200, or an addition of 25% minorities to any entering
class.
AAvare of the disproportionate impact of the LSAT in
denying qualified minority applicants the opportunity to
attend law school, the minority student program considers
53
the leadership ability, Avork and community < \periencc,
and demonstrated aehioA’omcnts of applicants in addition
to traditional admissions criteria. This method has been
highly successful in identifying qualified applicants for
the study of law and has had a major positive impact on
minority representation in the legal profession. More
than this, many of the program’s graduates have brought
their training and special insights to areas ol public'law
in Avhieh the need is greatest for the minority community.
Almost 2D0 minority persons have graduated from the
Law School since 1971. Of the 112 avI io responded to
surveys about their careers, at least 24 have been em-
ploved in legal services, at least 35 ha\'C Avorlad or are
Avorking in prosecution or defense work, or in municipal,
state, and federal governments. Five are involved in
l e g a l education. (Jraduatos. of the program include a
N e w a r k municipal court judge, the director of the Mary
land Human Lights Commission, and NeAvark's Police
Director. Still another has moved from an Assistant
Deanship at Butgers Luav School to the national staff of
the Council on Legal Education Opportunities. Some are
outraged in other “ public interest” laAV and many others
are in private practice in firms, Avith corporations or on
their own.
The program’s success, hoAvever, is not l i m i t e d to the
increase in the number of minority group members avIi o
are studying and practicing hnv. Bather, the institutional
character of Butgers Luav School has been reshaped and
revitalized by its minority student program. The once
predominantly Avhite and isolated institution, situated in
the heart of the depressed urban center of Newark, lias
become increasingly involved through curricular changes,
clinical programs, and student projects in the problems
and needs of the NeAvark community. This increased
sensitivity and involvement is one of the program’s major
achievements.
54
Far from being the “ special favorite of-the laws”, Civil
Rights Cases, 109 U.S. 3, 25 (1SS3), the students and
graduates of the Rutgers minority student program are
visible evidence that the laws can be made to function
without disproportionately favoring the wliitc majority
and with justice to minority Americans.
CONCLUSION
Race-blind professional school admissions systems will
bo constitutionally appropriate when we have obeyed fully
the command of the Thirteenth Amendment. But if the
Fourteenth Amendment, adopted in aid of the Thirteenth,
is now utilized as an insurmountable barrier to the achieve
ment of equal status for minorities we will once again
have betrayed the central mission of the Reconstruction
Amendments.
The decision of the California Supreme Court should
be reversed.
Respectfully submitted,
A nNAMAY T. SjlF.rPAItD
Jonathan M. Hyman
R utgers Constitutional Litigation
Clinic
175 University Avenue
Newark, New Jersey 07102
201/G48-5GS7
Attorneys for Amici Curiae
June 7, 1977
Counsel wish to thank Professor Arthur Ivinoy, Hannah Levin,
Ph.D., and the students of the Affirmative Action Seminar and the
Constitutional Litigation Clinic of Rutgers Law School for their in
valuable participation in the preparation of tills brief.
55
Certification of Service
T, Jonathan M. Hyman, a member of the bar of this
Court, certify that I have serv'd copies of the foregoing
brief on Donald Reidhaar, Esq., University of California,
590 University Hall, Berkeley, CA 94720, attorney for
petitioner, and Reynold Colvin, Esq., Jacobs. Blancken-
lmrg, May and Colvin, 111 Sutter, San Francisco, CA
94104, attorney for respondent, by mailing, first-class,
postage prepaid, in accordance with Rule 33(1) of this
Court, this 7th day of June 1977.
J onathan M. H yman
Attorney for Amici Curiae
i i
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Ti-i T':'f ’’*! ' ,
In The
Suprnw (£mn1 ni llj? lihtffrfc States
Spring Term, 1977
No. 7G-811
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Petitioner,
v.
ALLAN RAKKjE,
Respondent
ON W RIT OF CERTIORARI TO THE SUPREME COURT
OF CALIFORNIA
BRIEF OF THE BLACK LAW STUDENTS UNION OF
YALE UNIVERSITY LAW SCHOOL, AMICUS CURIAE, IN
SUPPORT OF PETITIONER
1
TABLE OF CONTENTS
Page
Consent to F i l in g ...........................................................
Opinions B e lo w ...............................................................
Question Presented ......................................................
Interest of the A m icu s ................................................
Statem ent of the C a s e ............................................ ...
Sum m ary of A rg u m en t................................................
A r g u m e n t .........................................................................
THE RESPONDENT MEDICAL SCHOOL’S
MINORITY-ADM ISSIONS POLICY IS A
CONSTITUTIONALLY APPROPRIATE
E FFO RT TO REMEDY THE EFFECTS OF
LONG-STANDING RACIAL DISCRIMI-
- NATION IN'THE MEDICAL PROFESSION
1
2
«>O
4
6
12
14
I. BENIGN RACIAL CLASSIFICATIONS
WHICH ARE ADOPTED TO ASSURE
EQ U ALITY OF OPPORTUNITY BY ELIM
INATING THE PRESENT EFFECTS OF
PAST DISCRIMINATION ARE CONSTI
TU TION ALLY PERM ISSIBLE....................... 14
II. INTEN T OR PURPOSE TO DISCRIM I
NATE WHICH IS THE KEY TO THE
SHOWING OF AN INVIDIOUS DISCRIM I
NATION, IS NOT HERE P R E S E N T ............ 18
III. SPECIAL ADMISSIONS PROGRAMS IN
INSTITUTIONS OF HIGHER EDU
CATION DO NOT STIGMATIZE
M EM BERS OF RACIAL MINORITY
GROUPS WHO ARE THE BEN E
FIC IA R IE S OF SUCH PR O G R A M S............. 21
Conclusion ...................................................................... 24
11
TABLE OF AUTHORITIES
Cases:
Bakke v. Regents of University o f California, 18
Cal. 3d 34, 50 (1976)................................................ . 6,19,20
De Funis v. Odegaarcl, 416 U.S. 312 (1924) .............. 6,21
_Franks v. Bowman, Transportation Co., 424 U.S.
747 (1976) ................................................................... 14
Loving v. Virginia, 388 U.S. 1 (1967)......................... 14
McDaniel v. Barresi, 402 U.S. 39 (1971)................... 14
McLaughlin v. Florida, 379 U.S. 184 (1964)............ 14
Shelley v. Kraemer, 334 U.S. 1, 22 (1948)................. 20
Swann v. Charlotte-Mecklenburg Board of Edu
cation, 402 U.S. 1 (1971 )........................................ 14
United Jewish Organizations o f Wiliiamsburgh,
Inc. v. Carey, U.S. , 97 S. Ct. 966, 1009-
1010 (1977) .........................'....................................... 14,18
Village o f Arlington Heights v. Metropolitan Hous
ing Development Corporation, U.S. , 97
S. Ct. 555, 563 (1977).............................................. 18
Washington v. Davis, 426 U.S. £29, 240 (1976)........ 18,19
Other Authorities:
Kaplan, Equal Justice in an Unequal World:
Equality fo r the N egro— The Problem of Spe
cial Treatment, 61 N W U.L. Rev 363 (1966) . . . 22
Karst and Horowitz, Affirmative Action and
Equal Protection, 60 VA. L. Rev. 955, 959 (1974) 20
G. Pierson, The Education o f American Leaders —
Comparative Contributors of U.S. Colleges and
Universities (1 9 69 ).................................................. 17
T. Sowell, Black Education, Myths and Tragedies
(1972) ....................................................................... 22
Tussm an and tenBroek, The Equal Protectio)L of
the Laws, 37 Cal. L. Rev. 341 (1949).................... 20
1
CONSENT TO FILING
. This Am icus Curie brief is filed with the written con
sent of counsel for the parties in this proceeding.
2
OPINIONS BELOW
The opinion of the trial court is not reported. The
case proceeded directly from the trial court to the
highest state court.
The opinion of the Supreme Court of California is re
ported in 18 Cal. 3d 34, 553 P.2d 1152(1976).
3
QUESTION PRESENTED
Does the special admission program at the School of
M edicine at the University of California at Davis dis
crim inate against nonminority applicants to the
medical school?
4
INTEREST OF1 THE AMICUS
The Yale Law School Black Students Union (BLSU)
is a student organization at Yale Law School consis
ting of black students who are currently enrolled in
the Law School. It was founded in 19G8 and was or
ganized to promote the interests of Afro-Am ericans
and A frican students. In addition to its attempts to
focus and articulate the viewpoints of black students
within the university community it also has consis
tently attem pted to utilize the expertise of its
constituency to speak out on legal issues which vitally
affect Afro-Am ericans in all segments of our society.
As students who were admitted to Yale Law School
because of its willingness to utilize admissions criteria
other than high test scores and grade point averages
and its recognition of the desirability of creating a
law school community which reflects the cultural, ra
cial and socio-econom ic diversity extant in the larger
society we believe that we are in a unique position to
assess the intellectual, cultural and societal value of
affirm ative action programs in professional schools.
M oreover, the interest of the BLSU in this case tran
scends its membership and extends to all minority
students who have been admitted to professional and
graduate schools because of affirm ative action
program s.
We subm it this brief because we believe that the ide
als expressed in the Constitution of the United States
can never be fully realized unless disadvantaged ra
cial m inorities are given an opportunity to
m atriculate in predominately white institutions of
higher education, including graduate and professional
schools, and after completing their training, to prac-
5
tice their profession in both predom inately white,
integrated and minority communities throughout the
country. In short, we believe that special admissions
program s which admit minority students to academic
institutions using differential criteria for the benefit
of the U niversity community in general, and minority
groups in particular, are consitutionally per-
m issionable.
i
I
6
STATEMENT OF THE CASE
“ It is surely one of the great ironies of American
constitutional history that after 350 years of legally
enforced and/or sanctioned oppression of black people,
the belated recognition of [the rights of minority
group members] to equality before the law is now
urged as a bar to the achievement of that very equal
ity.” 1 Irony notwithstanding, it is that argum ent that
is again2 urged upon this Court.
Allan Bakke, respondent, applied for admission at
the School of Medicine of the University of California
at Davis (hereafter, the University) in 19733 and 1974;
he was rejected on both occasions.
Bakke, a white male, applied pursuant to the “ regu
lar” admission procedures. lie held both a B.S. and a
M.S. in mechanical engineering from the University of
Mi nnesota. His overall grade point average (OGPA)
was 3.51; his scientific grade point average (SGPA)
was 3.45; his Medical College Admissions Test(M CAT)
scores were: verbal, 96; quantitative, 94; science, 97;
and general knowledge, 72. In 1973, he was inter
viewed by the University Admissions officials and
received a rating of 468. The maximum rating in 1973
was 500. His rating was two points lower than any ap
plicant admitted under the University’ s regular
‘ Amicus Curiae Brief submitted by Board of Governors of
Rutgers University, Defunis v. Odcyuard, 416 U.S. 312
(1924)7-8.
2See, Bakke, v. Tlte Regents o f the University o f California,
18 Cal. 3d. 34, 553 P.2d. 1152(1976)
•■‘ Bakke’ s application was treated in the same manner as
other regular admission applications in both of the years
that he applied. In 1973, however, his application did not ar
rive until late in the application process. Hence, it was not
reviewed until March 14, 1973. By this time, 123 of the 160
regular admits had been notified of their acceptances.
7
adm issions procedures. Moreover, there were fifteen
applicants who received ratings of 469, and another
twenty applicants who also received ratings of 468.
Any or all of these thirty-five applicants might have
been admitted before Bakke.
In 1974 Bakke applied for admission so early that he
was interviewed before his file was complete. His rat
ing was 549; the maximum rating in 1974 was 600.
There were twelve applicants with ratings above 549,
how ever, and three others with ratings of 549 who fail
ed to make the University’ s “ Alternates List” .
Furtherm ore, twenty applicants who received ratings
above 549 and who were placed on the “ Alternates
List” were nonetheless denied admission.
Having been rejected a second time, Bakke filed suit
against the University. He claimed that because the
University, pursuant to its “ special” admission pro
cedures, admitted applicants “ less qualified” than he,
he had suffered a legal wrong. The thrust of Bakke’s
legal claim is underscored by a description of the sa
lient characteristics of the University’s special and
regular admission procedures.
Regular Admission Procedure
Under the regular admission procedures, a com m it
tee screens the applications to determine which
applicants will be granted interviews. The committee
is com posed of approximately 14-15 faculty members
and 14-15 students.4 This committee evaluates each
applicant’s entire record. It considers such criteria as
4In 1973 there were more faculty members than students
on the com m ittee. In 1974, however, the number of faculty
members and students serving on the committee was identi
cal.
8
teacher recommendations, college grades, MCAT
scores, em ploym ent experience, and personal back
ground.5 Additionally it indulges the administrative
presum ption that no applicant whose college OGPA is
below 2.5 (on a 4.0 scale) should be granted an inter
view .6 Utilizing these criteria, the admissions
com m ittee granted interviews to 815 of 2G44 appli
cants in 1973 and 462 of 3737 applicants in 1974.
When Bakke applied for admission in 1973, only one
initial interview was conducted; a faculty member
conducted the interview. In 1974, two prelim inary in
terviews were conducted: one by a faculty member,
the other by a student. The interviewers reviewed the
applicant’ s file, prepared a written summary of the in
terview, and then assessed the applicant’ s potential
contribution to the University and the profession. F i
nally, the interviewer, having performed all those
tasks rates each applicant on a scale of 1-100.
At this point, the interviewer’s written summaries
and the applicant’ s file are passed on to a subcom
m ittee7 of the full admissions com m ittee. The
interview er’s specific rating is withheld to permit each
of the subcom m ittee members to make an independent
evaluation of the desirability of each applicant. Ulti
mately the sum of the ratings given by the initial
interview ers, combined with the ratings given by the
5The Com m ittee also considered graduate school grades
(if any) and extra-curricular activities.
°Not all applicants who had OGPAs above 2.5 were grant
ed interview s however.
7Iii 1973 there was one interviewer and four committee
members — a combined rating of 500 was possible. In 1974,
there were two interviewers and four committee members
— a com bined rating of GOO was possible.
9
subcom m ittee members forms the basis for the Uni
versity ’s admission decision. It should be noted,
however, that the University has adopted a preferen
tial admissions policy both for those persons whose
spouses have already been admitted to the medical
615 school; and those applicants who intend to practice
m edicine in areas of the country where there is cur
rently a shortage of doctors.
In each medical school class there were but one hun
dred places. Y et in both 1973 and in 1974 eighty-four of
these places were reserved for applicants who applied
through the “ regular” admission procedure.
Special Admission Procedure
The U niversity has published a pamphlet entitled
“ Program to Increase Opportunities in Medical Edu
cation for Disadvantaged Citizens” to inform eligible
applicants of its “ special” admission procedures. Mi
nority applicants8 who are from disadvantaged socio
econom ic, cultural, or educational backgrounds are so
eligible.
The special admission committee was composed of
both faculty members and students. All of the student
m embers and most of the faculty members of the com
mittee were minority group members. The faculty
chairm an of this committee reviews each application
to determ ine eligibility. He notes such indicators as
w hether the applicant was: (1) granted a fee waiver;
(2) a participant in an equal opportunity program in
8Evidently, only members of the following minority
groups were eligible for the special admissions program:
Black/Afro-A merican; American Indian; M exican-American
or Chicano; Oriental/Asian American; Puei to-ltican (M ain
land); Puerto-Rican (Commonwealth); Cuban; and Other.
10
college; or (3) a work-study student as an under
graduate. He also considers the occupational and
educational background of the applicant’s parents.9
A fter the eligibility determination, the com m ittee de
term ines whether an interview should be granted.
To determ ine whether an interview will be granted,
the com m ittee considered the applicant’s entire
record, paying particular attention to factors such as
the applicant’s motivation and desire to serve in a mi
nority com m unity. Unlike the applicants in the
“ regular” admission program, however, applicants in
the “ special” admission program were not subject to
the presum ption that an OGPA below 2.5 precludes ei
ther an interview or admission.10
Each applicant, who was granted an interview, was
interview ed by a faculty member and a student mem
ber of the committee. As in the “ regular” admission
procedure, each interviewer prepared a written sum
mary of the interview and ranked the applicant on a
scale of 1 to 100. The applicant’s file was then subm it
ted to a subcommittee of the “ special” admission
com m ittee. Again the specific rating of the inter
viewer was withheld to permit each of the
subcom m ittee members to make an independent eval
uation. These evaluations were then condensed and
subm itted to the “ regular” admission committee
which ultim ately determined which of the minority
applicants would be admitted. This process continued
9M inority applicants who were ineligible for consideration
in the “ special” admissions program are considered under
the “ regular” admission procedures.
*°Undcr this admission procedure, in 1973, 71 of 297 mi
nority applicants to the medical school were interviewed;
and in 197-1, 88 of 028 were selected for interview.
11
until 16 m inority students had been accepted and ex
pressed an intention to enroll at the University.
12
SUMMARY OF ARGUMENT
Amicus will argue that it is constitutionally permis-
sable for medical schools to consider race as one of the
criteria in their admissions policy to meet the com pel
ling state interest in overcom ing the effects of past
racial exclusion of blacks and other minority group
members from these schools and in alleviating the
acute shortage of minority doctors which exists
throughout the country. In fact, it will be our con
tention that there is an affirmative responsibility on
all medical schools which are directly or indirectly
supported by Federal and/or state funds to take affir
mative steps to end the historic pattern of exclusion of
m inority persons from the medical profession.
We believe that the affirmative responsibility of
publicly supported state and private medical schools
em anates from several sources. First, the nation’s me
dical schools must bear a substantial share of society’s
responsibility for the general exclusion of minorities
from the medical profession and its various institu
tions and organizations. Furthermore, if systematic
and sustained legal, socio cultural, economic, political
and educational discrimination over hundreds of
years against minority group members has created ac
ademic experiences for whites which have not been
shared by or available to minority group members
then it would be sheer folly to expect minority persons
to perform as well in a culture-based credentials con
test. Consequently, we argue that medical schools
should be permitted to depart from strict cred
entialism in favor of a system which allows for the
possibility of admission to otherwise qualified m inor
ity applicants.
13
Secondly, we believe that publicly supported me
dical schools may, consonant with sound
constitutional principles, admit members of specially
disadvantaged racial groups on the grounds that not
only do the individual graduates acquire power, pres
tige and influence but that these important resources
inure to the benefit of the entire racial group. Addi
tionally, the presence of members of racially
disadvantaged students in medical schools will un
doubtedly have a beneficial effect upon the entire
medical school community. Both white and minority
students and faculty members will undoubtedly alter,
in some fashion, their perceptions about members of
the other group. However, the important point is that
an increase in the number of black, American Indian,
Puerto Rican, Mexican American, and Asian doctors
will place some of these persons in im portant and in
fluential policy positions throughout the country,
raise aspirations of all members of the group and gen
erate a process whereby members of these racial
m inority groups can, through their power and influ
ence, help to eliminate the strikingly different
educational experiences of white and minority group
individuals in their formative years — thus leading to
a time when the necessity for affirmative action pro
gram s will be eliminated.
Finally, we will contend that minority students ad
m itted to medical schools pursuant to special
program s are not stigmatized by these special
program s.
14
A R G U M E N T
I
Benign Racial Classifications Which Are Adopted to
Assure Equality of Opportunity By Eliminating The
Present Effects of Past Discrimination Are Consti
tutionally Permissible.
Amicus, while ackowledging that most racial classi
fications which have been reviewed by this Court have
been held to be constitutionally impermissible, asserts
that these cases have almost universally involved in
stances of invidious racial discrimination. See e.g.,
Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v.
Florida, 379 U.S. 184 (1964). Correlatively, this Court
has frequently had occasion to review, and in many in
stances sustained racial classifications intended to
alleviate the present effects of prior discrimination.
See United JewishOrganizations o f Williamsburgh, Inc.
v.' Carey, U.S. 97 S. Ct. 996 (1977); Franks v.
Bowman Transportation Co., 424 U.S. 747 (1976);
M cDaniel v. Bar re si, 402 U.S. 39 (1971); and Swann v.
Churlotte-Mecklenburg Board o f Education, 402 U.S. 1
(1971).
While we do not believe that it is neccessary for this
Court to strictly scrutinize the racial classification in
volved in this case, we nevertheless believe that even
if the Court utilizes this rigorous standard of review,
the affirm ative action program at the University can
be upheld as being constitutionally permissible. For,
in this instance, the racial classification would meet
the com pelling state interest test of the strict scrutiny
standard, since minority admissions programs serve
to lessen the impact of institutional racism in higher
education.
15
As the conventional wisdom has it racism will de
cline with the cessation of overt discrimination and
with the elimination of its legal forms. Racism appears
to most people as an individual problem for which one
is capable of avoiding responsibility. When we per
ceive the larger structure of discrimination there is a
sense that somehow its objective forms are unrelated
to our daily lives; that we are not responsible for the
injustices we see. On one level this is correct. We are
born into social circumstances over which we have no
control and we live our lives out of that particular con
text. That particular social contexts are preferred or
provide greater access to social resources is a real
ization that comes late in life and has produced much
guilt, arrogance, frustration and anger. In this sense
we are all victims of the injustices to which we have
become accustomed.
It is im portant, however, that we place this case in
an institutional context. We do not believe that it is
possible for this Court or any other social institution
to successfully deal with the issues of affirm ative ac
tion w ithout taking into account the pervasiveness of
institutional racism, that is, the relationship of social
organization to racist effect regardless of the intent of
particular personalities involved. It seems inexorably
clear by now that adherence to certain procedures is
likely to make particular results more predictable,
how ever racist their impact might be. In this case, ad
mission to the University’s Medical School based
solely upon the use of one’s Medical College Admission
Test and grade point average would mean a drastic re
duction in the number of minority persons admitted.
Notwithstanding the reality that the soealled “ ob jec
tive criteria” have never been linked to the native
16
abilities or individual potentialties of minority
persons.
We believe that one of the reasons the processes of
discrim ination are so tenacious is that, in the oper
ation of what has been labelled systemic racism each
institutional sector in our society depends upon the re
sults produced by every other sector. Thus deficiencies
in education produce lowered success in business and
em ploym ent which produces lower income which will
produce poorer quality housing in neighborhoods that
support inferior schools and the institutional actor in
each sector is able to eschew responsibility for the
plight of minorities in society.
As m inority students at a prestigious university the
nature of the interlocking relationship of institutional
sectors is acutely apparent to us, through our study of
the legal system as well as our interactions with our
fellow students. We feel that two of the most potent
antedotes to this interlocking relationship whose rac
ist effects grew out of an historical milieu that
includes hundreds of years of slavery and legally en
forced racism are: (1) judicial intervention to disrupt
the continuity of sectorial discrimination; and (2) ju d i
cial approval of affirmative action programs which
will assure the presence of members of specially disad
vantaged groups in all of the various social
institutions at all levels. We cannot emphasize the im
portance of the aformentioned words, “ at all levels.”
Our m atriculation at Yale Law School, our acquaint
ance with our white colleagues, our exposure to the
frequent important dignitaries who visit the Law
School, including Supreme Court Justices, and our lim
ited exposure to the operation of the legal and social
17
system has convinced us that a truly successful as
sault upon institutional racism cannot be made unless
m inorities are given access to those institutions which
wield considerable power in our society. We cannot
help but believe that institutional racism is in far too
many instances maintained and perpetuated because
of the absence of qualified minorities in positions of
power in powerful institutions in society. And, there
appears to be considerable evidence that there are cer
tain educational institutions in this country whose
graduates disproportionately occupy these powerful 11
positions in institutions capable of exerting consid
erable influence on national, state and local policy.
We do not argue that all minority graduates of first-
rate medical schools will dedicate their careers to ob
taining positions of power and influence in order to
help the more disadvantaged members of their racial
group. Some will, while others will not. In either event
society will be better off. In the case of those minority
doctors who aspire to and obtain influential i>ositions
in national, state or local medical associations it is pos
sible that they can be instrumental in initiating
policies which will have a beneficial effect upon those
most in need of medical services which will include a
substantial portion of minorities. For those who
choose to devote their energies almost exclusively to
the practice of medicine, whether it be in black, white
or integrated communities the superior education and
post medical school training will undoubtedly enable,
them to be highly competent practitioners who will
gain the respect of their patients and colleagues.
“ See Pierson, The Education o f American Leaders -
Comparative Contributions o f U.S. Colleges and Univer
sities (1009)
18
In summary, we urge the Court to consider the per
nicious effects of institutional racism upon members
of specially disadvantaged racial minority groups and
to hold that insofar as the University’s affirm ative ac
tion program helps to eliminate or at least ameliorate
those effects that this is a compelling enough state in
terest to justify the program.
II
Intent or purpose to discriminate, which is the key to
the showing of an invidious discrimination, is not here
present.
There is an additional reason why this Court should
not find the classifications made in this case an in
vidious discrim ination in the constitutional sense, and
one therefore subject to strict scrutiny. The key to the
show ing of an unconstitutional racial classification,
this court has repeatedly held, is a “ racially discrim i
natory purpose” on the part of the decisionmaker,
Washington v. Davis, 426 U.S. 229, 240 (1976); Village o f
Arlington Heights v. Metropolitan Housing Devel
opment Corporation, — U.S.— , 97 S.Ct. 555, 563 (1977).
A lthough it may be unclear what precise standard of
proof attaches to an assertion of discrim inatory pur
pose, a plurality of this Court has made clear that
mere use of race “ in a purposeful manner” is not suf
ficient unless a “ racial slur or stigma” is intended or
inferred, or the classification can be shown indepen
dently to have been intended to violate a
constitutional right. United Jewish Organizations o f
Williamsburgh, Inc., v. Carey, — U.S. — , 97 S.Ct. 996,
1009-1010 (opinion of White, J.).
While the special admissions program of the Univer
sity concededly necessitated a purposeful use of race,
19
amicus contends that respondents have not carried
their burden of proving anything more. The court
below concluded that there was no “ aura of inferi
ority” cast upon applicants not included in the special
program , and thus no stigma, Dalike v. Regents o f Uni
versity o f California, 18 Cal.3d 34, 50 (1976). Beyond
this, it is hard to see how the actions of the University
could be construed as having intent or purpose to vio
late the Equal Protection Clause of the Fourteenth
Am endm ent, as respondents charge.
In Washington's. Davis, supra, the administration to
applicants for positions on the District of Columbia po
lice force of an examination with a demonstrable
disproportionate impact on blacks was challenged on
constitutional grounds. But the Court declined to find
the requisite intent, largely because the police de
partm ent had made affirmative efforts to recruit
black officers. Id., at 246. The California Supreme
Court in deciding Bakke also drew this inference from
that case. Bakke, supra, 18 Cal.3d at 58, n.25. We con
tend that the situation in the instant case is
analogous. Even with the special admissions program,
84 of 100 spaces in the entering class were filled with
students not from disadvantaged backgrounds. If the
existence of a voluntary affirmative action program in
Washington v. Davis was strong evidence that there
was no unconstitutional discriminatory purpose as re
gards a racial minority, then surely the fact that the
overw helm ing majority of spaces in the entering class
are “ reserved” for individuals not from disadvantaged
background is powerful evidence in the instant case
that no constitutionally proscribed discrim inatory in
tent as regards the majority exists. To say anything
else is to make the scarcely credible statem ent that it
20
should be easier to prove unconstitutional discrimi
nation against the majority than against a minority.
The m ajority below evaded consideration of this pa
radox by asserting that the alleged discrimination
here at issue was not only against whites as a race or
nondisadvantaged applicants as a group, but also
against Allen Bakke as an individual. Balclce, supra, 18
Cal.3d at 47, n .ll . It is indeed indisputable that the
Fourteenth Amendment protects individuals as much
as groups, see Shelley v. Kraemer, 334 U.S. 1, 22 (1948).
And yet, to assert a denial of equal protection is in e f
fect to claim that a group classification has been
unfairly made. As Professors Karst and Horowitz
have noted:
Classification implies a selection of certain at
tributes as the relevant ones— the “ merits.”
Once this selection is made, an individual is
classified either with those who possess the
relevant attributes or with those who do not.
Consequently, to complain against a classi
fication scheme is not merely to say, “ I am
wronged,” but to say, “ We are wronged.”
E very lawsuit based on claim to equal protec
tion is, in spirit, a class action. Karst and
Horowitz, Affirm ative Action and Equal P ro
tection, GO VA.L.REV. 955, 959 (1974).
Cf, generally Tussman and tenBroek, The Equal P ro
tection o f the Lotus, 37 CAL.L.REV. 341 (1949). Thus in
the instant case, the basis of Bakke’s suit is not that
he was denied admission; he had no constitutional
right to be admitted. Rather, the basis of his claim is
that he was denied admission as a resit It of the school’s
purposeful use of a racial classification. He is in fact
21
asserting that by using such a classification, the
school is denying a group its rights. But in order to
prove such an assertion, he has the burden of showing,
as we have said, that the administration of the Uni
versity acted with intent to deprive the group of its
rights. Am icus contends that on the fa(cts of this case,
that burden has not been and can not be met.
Ill
Special Admissions Programs In Institutions Of High
er Education Do Not Stigmatize Members Of Racial
Minority Groups Who Are The Beneficiaries Of Such
Programs.
Perhaps the clearest articulation of the argum ent
that affirm ative action programs serve to stigm atize
m inority group members was made by Justice Douglas
in his dissent in DeFunis v. Odegaard, 416 U.S. 312
(1974) when he stated:
A segregated admissions process creates sug
gestions of stigma and caste no less than a
segregated classroom, and in the end it may
produce that result despite its contrary in
tentions. One other assumption must be
clearly disapproved, that Blacks or Browns
cannot make it on their individual merit.
That is a stamp of inferiority that a state is
not perm itted to place on any lawyer. Id. at
343.
Support for this position can be found in the writings
of scholars who have stated that the danger inherent
in a program which gives special consideration to
m embers of groups is that it may give rise to the impli
cation that members of these groups are intellectually
22
inferior, 12 we submit that the failure to adopt special
admissions programs would needlessly give rise to an
even greater implication that the absence of minority
students was due to intellectual inferiority rather
than the deprivations of opportunity which they have
suffered.
We believe that those who like Justice Douglas
argue that affirmative action programs operate as a
stigm a on racial minority groups and for that reason
alone are constitutionally suspect could not be more
m istaken in their assertations.
We ground our belief on three basic premises.
(1) that Am erica’s minorities are not similarly situ
ated with the Anglocentric, white, middle-class
m ajority;
(2) that because of the socio-cultural, economic, po
litical and educational differences between minority
and nonm inority persons in this nation, it is irrational
and unfair to expect minority students to demonstrate
their latent capabilities and potentialities on entrance
tests and other traditional criteria for selection nor-
med on the life experiences of privileged whites; and,
(3) given the vital function and role of higher edu
cation in America today, minorities ought to be given
fair access to all institutions of higher education - elite
as well as nonelite - on at least,a proportional basis if
the Am erican caste system, is to be finally shattered
and the societal goal of equal opportunity for all indi
viduals is to be attained. This means, of course, that
12See e.g., '1'. Sowell, Blade Education Myths and Tragedies
(1972); Kaplan, “ Equal Justice In An Unequal World; Equal
ity for the Negro - The Problem of Special Treatm ent," G1
NW U.L. Rev 3G3(19GG).
23
one of the aims of educational institutions should be
the developm ent of special programs such as affir
m ative action to offset the intrinsic biases of the
adm issions procedures of colleges, and universities, as
well as graduate and professional schools in the Unit
ed States. For only through such programs can higher
education help our nation to fulfill the democratic-
egalitarian values America has always preached, but
so rarely practiced.
Hence, rather than to stigmatize minority group
m embers, special admission programs serve only to
provide for such persons equal access to educational
opportunities on the basis of more realistic entrance
criteria. At the same time, these programs assist in
the creation of a situation wherein all students in the
academ ic environm ent receive a critical exposure to
the history, contem porary experiences, and cultural
heritage of all the racial and ethnic groups in this
country. In effect then, such programs accomplish
nothing more than to permit Am erica’s institutions of
higher learning to fulfill their duty to society of pro
viding Am erica’s youth with the values, skills,
flexibility and depth of outlook necessary to assume
useful roles in a pluralistic nation that is itself part of
a larger, heterogeneous global community.
24
CONCLUSION
For the reasons stated it is respectfully submitted
that the decision of the Supreme Court of California be
reversed.
Respectfully submitted,
JOHN T. BAKER
105 Woodside Terrace
New Haven, Connecticut 0G515
A ttorney for the Yale
Law School Black
Law Students
Union
25
PROOF OF SERVICE
I, John T. Baker, Attorney for the Amicus Curie and
a m em ber of the Bar of the Supreme Court of the Unit
ed States, hereby certify that on the 7th day of June,
1977, I served copies of the foregoing Brief on petition
ers and respondents therein named, by mailing copies
in a duly addressed envelope, with postage prepaid, to
Reynold H. Colvin, Esquire, 111 Sutter Street, San
Francisco, California 94104 and Donald L. Reidhaar,
Esquire, 590 University Hall, 2200 University Avenue,
Berkeley, California 94720.
John T. Baker
Attorney for the Yale
Law School Black Law Students
Union
In the Suprem e C ourt o f the
TT . _ n R E C E I V E DUnited States
O c t o b e r T e r m , 197G
No. 76-811
■J'JW Cl It]
OKHCt OF THE CLERK
SUPREME COURT, U.S.
T he R e g e n t s o f t h e U n i v e r s i t y o f C a l i f o r n i a ,
Petitioner,
vs.
A l l a n B aic ice ,
Respondent.
Brief of The Black Law Students Association
at the University of California, Berkeley School
of Law as Amicus Curiae
E p h r a i m M a r g o l i n
445 Sutter Street
Sim Francisco, CA 94108
Counsel for Amicus
D a v id M . W h i t e
Childhood & Government Project
School of Law (Boalt Hall)
University of California, Berkeley
Berkeley, CA 94720
Of Counsel for Amicus
May 24,1977
eona printing company op California , 34a pirst street, san francibco shiob
INDEX
Interest of the Amici.............................................. 1
Summary of Argument...................................................... 3
Argument ........................................................................... 5
I. The Proceedings Below Were Fatally Flawed
Because They .Proceeded on the Unquestioned
Assumption That Minority Students Admitted
to Davis Medical School Were “Less Qualified”
Than Majority Candidates Refused Admission 5
A. Little Evidence Appears in the Record
About the Qualifications of Students........... 6
B. The Court Below Should Not Have Con
cluded That Rejected Majority Candidates
Were More Qualified on the Basis of
“Benchmark fecores” .................... 7
C. The Medical College Admission Test
(MCAT) Scores Do Not Identify More
Qualified Students ....................................... 9
D. The Consideration of Undergraduate
Grade Point Average, a More Valid Predi-
cator of an Applicant’s Performance, Does
Not Sustain a Conclusion That Minority
Students Are Less Qualified........................ 1G
II. A Race-Conscious Admissions Policy Is Neces
sary and Not Stigmatizing................................... 19
A. There Are Compelling Reasons to Retain
the Option of a Race-Conscious Admis
sions Policy Among Equally Qualified Ma
jority and Minority Candidates.................. 19
Page
I n d e xn
Page
1. Racially biased admission tests require
different interpretations for members
of different racial groups........................ 19
2. Racially diverse populations with un
met health care needs require a racially
diverse medical profession...................... 20
3. The admission process should be con
ducted by a racially integrated commit
tee ............................................................ 20
4. Some admission officers may express at
titudes which would make it likely that
minority candidates would not be fairly
considered .............................................. 21
5. A subjective interview procedure will
yield the most information if the race
of the candidates is known.................... 22
G. As an administrative convenience, a
subcommittee evaluating minority can
didates can be given an approximate
target for issuing letters of acceptance 23
B. Where a Large Number of Equally Quali
fied Candidates Apply for a Limited Num
ber of Positions, a Race-Conscious Admis
sions Process Carries No Stigma of In
feriority ........................................................ 24
III. Conclusion ............................................................ 2G
IV. Appendix .............................................................
AUTHORITIES
C a s e s
Pages
Associated General Contractors of Mass., Inc. v. Alt
shuler, 490 F.2d 9 (1st Cir. 1973), cert. den. 41G U S.
957 (1974) ................................................................... 24
Brown v. Board of Education, 347 U.S. 483 (1954)..... 4
DeFunis v. OdeGaard, 416 U.S. 312 (1974).............. 6 , 24, 26
Castaneda v. Partida, 45 U.S.L.W. 4302 (U.S. March
23, 1977) ............................................................... 2 1
Contractors Ass’n of Eastern Pa. v. Secretary of La
bor, 442 F.2d 159 (3rd Cir. 1971), cert. den. 404 U.S.
854 (1971) ........................................................ 19
Griggs v. Duke Power Co., 401 U.S. 424 (1971)........... 10
Rowe v. General Motors, 458 F.2d 348 (5th Cir. 1972) 8
Swann v. Board of Education, 402 U.S. 1 (1971)......... 2 1
Sweatt v. Painter, 339 U.S. 629 (1950).......................... 4
United Jewish Organizations of Williamsburgh v.
Carey, 45 U.S.L.W. 4221 (March 1,1977)................ 23, 24
United States v. Hazelwood School District, 534 F.2d
805 (8 th Cir. 1976).......................................................... 8
United States v. Montgomery County Board of Edu
cation, 395 U.S. 225 (1969)......................................... 21
Washington v. Davis, 96 S.Ct. 2040 (1976).................. 14
Statute
Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e
et seq.......................................................................... 8
. IV AUTHOIUTIKS
T exts
Pages
Association of American Medical Colleges, Division
of Basic Research, “ Medical school performance of
high and low MCAT students,” 36 J.Med.Ed. 1733
(1961) ........................................................................... 12
II. Averch, S. Carroll, T. Donaldson, H. Kiesling, & J.
Pincus, 1l o w E ffe c t iv e I s S c h o o lin g ? (1971)............ 14
Baird, “What Graduate and Professional School Stu
dents Think About Admissions Tests,” Measure
ment in Education, Spring 1977................................. 14
Bartlett, “ Medical school and career performances of
medical students with low Medical College Admis
sion Test scores,” 42 J.Med.Ed. 231 (1967).............. 11
Breland and Ironson, “DeFunis Reconsidered: A
Comparative Analysis of Alternative Admission
Strategies,” 13 J.Ed.Meas. 89 (1976)......................App. 3
J. Campbell, L. Pike and R. Flaugher, P r e d ic tio n o f
J o b P e r fo r m a n c e fo r N e g r o and W h ite M ed ica l
T ech n icia n s (1969) .................. ................................... 22
Conger and Fitz, “ Prediction of success in medical
school,” 38 J.Med.Ed. 943 (1963) ............................. 18
Erdmann, “ Editorial, Separating wheat from chaff:
revision of the MCAT,” 47 J.Med.Ed. 747 (1972) .... 10
Funkenstein, “ Current problems in the Verbal and
Quantitative Ability subtests of the Medical College
Admission Test,” 40 J.Med.Ed. 1031 (1965) .......... 11
Goldman and Hewitt, “ Predicting the Success of Black,
Chicano, Oriental and White College Students,” 13
J.Ed.Meas. 107 (1976) .............................................. App. 3
Gough, Hall and Harris, “Admissions procedures as
forecasters of performance in medical training,”
38 J.Med.Ed. 983 (1963) 1 1 ,1 8
Pages
A uthorities v
Hale and Lerner, “ The characteristics and perform
ance of medical students during preclinical train
ing,” 47 J.Med.Ed. 446 (1972) ................................. 12
Howell and Vincent, “ The Medical College Admission
Test as related to achievement tests in medicine and
to supervisory evaluations of clinical performance,”
42 J.Med.Ed. 1037 (1967) ......................................... 13
D. Iloyt, “The Relationship between College Grades
and Adylt Achievement: A Review of the Litera
ture,” American College Testing Program, Research
Report, no. 7 (1965) .................................................... 17
Johnson, Smith and Tarnoff, “Recruitment and Pro
gress of Minority Medical School Entrants, 1970-
1972,” 50 J.Med.Ed. 713 (1975) .............. .'.................. 15
Ivorman, Stubblefield and Martin, “ Patterns of suc
cess in medical school and their correlates,” 43
J.Med.Ed. 405 (1968) .................................................. 12
Moffat, Jacobs and Metcalf, “ Predicators of academic
performance in gross anatomy,” 46 J.Med.Ed. 545
(1971) ........................................................................... 18
Peterson, Lyden, Geiger, and Colton, “ Appraisal of
medical students’ abilities as related to training and
careers after graduation,” 269 New Eng.J.Med. 1174
(1963) ........................................................................... H
Price, Taylor, Richards and Jacobsen, “ Measurement
of physician performance: Discussion,” 39 J.Med.
Ed. 203 (1964) ............................................................ 18
Richards, Taylor and Price, “The prediction of medi
cal intern performance,” 46 J.Appl.Psychol. 142
(1962) ...........................................................................13,18
A uthorities
Schmidt and Hunter, “Racial and Ethnic Bias in Psy
chological Tests: Divergent Implications of Two
Definitions of Test Bias,” 29 American Psychologist
1 (1974) ..................................................................App. 2
T h e S e v e n th M en ta l M e a su r e m e n ts Y e a r b o o k (0.
Buros, ed. 1972) .......................................................... 14
Thorndike, “ Concepts of Cultural Fairness,” 8 J.Ed.
Meas. G3 (1971) ......................................................... App. 2
Turner, Helper and Kriska, “ Predictors of clinical
performance,” 49 J.Med.Ed. 338 (1974) .................. 12
Miscellaneous
Association of American Medical Colleges, M ed ica l
S ch o o l A d m is s io n s R e q u ir e m e n ts , U S A and Canada
1976-1077 ....................................................................... 21
J. Baumer, Summary of the Results of the Study on
the Subjective and Objective characteristics of Ap
plicants to the U.C.D. School of Medicine, (unpub
lished) ........................................................................... 9
Colorado Advisory Committee to the U.S. Commission
on Civil Rights, A c c e s s to the L eg a l P r o fe s s io n in
C o lora d o b y M in o rities and W o m e n , (1976)...........App. 3
“ Dean Lowry on Med Admissions,” Advocate-
Borborygmi, April 14,1975......................................... 13
D e F u n is v e r su s O d eG a a rd and th e U n iv e r s ity o f
W a sh in g to n , vol. I l l (A. Ginger, ed. 1974).................. 6
Executive Order 11246, as amended, 41 C.F.R. § 60 et
scq...............................................................................8,19, 22
Feitz, “ The MCAT and Success in Medical School,”
paper presented at the Annual Convention of the
American Educational Research Association, Chi
cago, Illinois, 1974
■ vi
Pages
16
A uthorities Vll
Frederick M. Hart, testimony before U.S. House of
Representatives Special Subcommittee on Educa
tion, September 20,1974............................................App. 1
16 S ch o o l o f M ed ic in e B u lle tin , U n iv e r s ity o f C a li
fo rn ia , D a v is 1 9 7 6 -7 7 (Sept. 1976) ............................ 21
Schrader and Pitcher, “Predicting Law School Grades
for Black American Law Students, “ Law School
Admission Council Annual Report, 530 (1973) ....App. 1, 2
Schrader and Pitcher, “Prediction of Law School
Grades for Mexican American and Black American
Students,” Law School Admission Council Annual
Report 527 (1974) ....................................................A pp .1
Pages
In the Suprem e Court cu die
U nited States
October Term, 197G
No. 76-811
The Regents of the University of California,
Petitioner,
vs.
Allan Bakke,
Respondent.
Brief of The Black Law Students Association
at the University of California, Berkeley School
of Law as Amicus Curiae
INTEREST OF THE AM ICI
The amici are members of the Black Law Students Asso
ciation at Boalt Hall. This organization consists of approxi
mately eighty students who attend Law School at the Uni
versity of California at Berkeley. The Black Law Students
Association works to provide legal services for the Black
community; to actively encourage minority students to
broaden and pursue their professional goals; and to assist
the entire process of minority matriculation into law school.
The organization is also actively involved in direct recruit
ment of Black students from undergraduate institutions as
well as the distribution of information regarding admis
sions.
The interest of the amici is based on the inevitable impact
that this case will have on the lives and careers of all Black
students who are considering professional careers. Although
many organizations have filed briefs as amicus curiae, a
student voice is conspicuously lacking. Amici have neither
the desire nor resources to address a number of varied
issues already being given adequate concentration in a
number of other briefs. This brief, filed with the consent
of the parties, will focus on the qualifications of minority
applicants in an attempt to protect the professional needs
and further the educational interests of those groups likely
to be most adversely affected by the termination of special
admissions.
This case arises because of Allan Bakke’s assertion that
he was “ more qualified” for the study of medicine than the
1G students admitted under the Special Admissions Pro
gram. As students involved in professional education, amici
are keenly aware of both the invalidity and racial bias of
present standards used to determine qualifications. These
fatal shortcomings of the Medical College Admission Test
(MCAT), which is a major criterion for admission, were
not considered below. Tt is the purpose of this brief to
present evidence in support of the contention that this test
(just like the Law School Admission Test used for admis
sions to law school) is biased against minorities and en
courages an unwarranted assumption that minorities are
“ less qualified” for professional careers.
The California Supreme Court avoided discussion of the
possible bias in the MCAT because neither Bakke nor the
University raised the issue at trial. It is the acceptance of
these preadmission tests as indicators of qualification which
allows Bakke to make a claim of being “more qualified” than
minority students. Therefore, amici feel that proof that
2
these tests are biased against minority candidates to pro
fessional schools is crucial to a fair determination of the
case. Furthermore, evidence will be offered to demonstrate
that, notwithstanding MCAT score differentials, minority
students do perform as well as majority students once
admitted.
Amici fear that the upholding of the California Supreme
Court decision will lead to a drastic reduction in the
number of Black students attending law schools. Although
Blacks comprise approximately 12% of the American popu
lation, Black lawyers account for just over 1% of the total
number of attorneys. Professional schools face a situation
in which an abundance of qualified applicants apply for a
limited number of places. Special Admissions Programs
have been instituted in such schools in an attempt to assure
adequate minority representation. Without these programs,
minority groups will continue to be systematically excluded
from these professions and minority communities will
remain critically underserviced. It is with this concern that
amici file this brief in support of the Special Admissions
Program of the University of California at Davis Medical
School.
3
SUMMARY O F ARGUM ENT
I. The court below found the Davis admission program
unconstitutional because it did not provide the equa: pro
tection of the laws to rejected majority candidates who
Avere “better qualified” than accepted minority students.
The court was invited to assume, and erroneously so, that
minority candidates Avere “ less qualified” and therefore
in need of preference. Adequate evidence bearing on appli
cants’ qualifications Avas not entered into the record to test
this assumption. A thorough review of candidates’ qualifi
cations would sIioav minority students to be equally quali-
lied to study medicine as majority students. The court
below, then, reached a momentous, erroneous, constitutional
decision without a sullicient tactual basis.
One of the major factors in the Davis admission process
was a candidate’s four scores on the Medical College Ad
mission Test (MCAT). This test predictably makes
minority candidates appear “ less qualified” because it is
biased in favor of white middle class culture. In contrast to
the biased MCAT, majority and minority students would
appear equally qualified on the basis of their undergraduate
grade point averages (UGPA) and their personal qualities
elicited during an unbiased interview. The bias in the
MCAT is particularly invidious because the test is not
demonstrably related to performance as a medical student
or a physician. In contrast the UGPA is more predictive of
performance as a medical student, and personal qualities are
more relevant to performance as a physician.
II. This Court has required that racial minorities be
admitted to professional schools withoiit prejudice due to
their race, Siveatt v. Painter, 339 U.S. G29 (1950), and has
guaranteed racial groups the opportunity to learn and
compete in integrated schools beginning in elementary
grades, Brown v. Board of Education, 347 U.S. 483 (1954).
The bias in standardized tests, which law students also face
in the Law School Admission Test (LSAT), see Appendix,
should not thwart that goal. The full realization of that
goal in contemporary America still requires that a race-
neutral admission process must be race-conscious. Pace-
consciousness does not involve a preference for racial
groups, but seeks to avoid racial discrimination which could
otherwise occur. Since there exist reasons to be race-
conscious in evaluating candidates to medical school and
since the court below prohibited the consideration of race
4 5
during admission committee deliberations without consider
ing those reasons for race-consciousness, this Court should
reverse the decision below.
ARGUM ENT
I. The Proceedings Below Were Fatally Flawed Because of the
Unquestioned Assumption That Minority Students Admitted to
Davis Medical School Were "Less Qualified" Than Majority
Candidates Refused Admission.
The relative qualifications of majority candidates refused
admission and minority candidates accepted for medical
study is central to the decision reached below. In the words
of that court: “ the question we must decide is whether the
rejection of better qualified applicants on racial grounds is
constitutional.” 18 Cal.3d 34, 48. The posture of the case
requires the comparison of groups, not individuals. Never
theless, there is no evidence bearing on the relative quali
fications of rejected majority candidates and accepted
minority candidates. The record discloses the qualifications
of only one rejected majority candidate—Allan Bakke. The
only other evidence available in the record relates to
accepted majority and minority candidates. Fnom this evi
dence, the court concluded that a program harming rejected
majority candidates existed and remanded the evaluation
of Mr. Bakke’s own qualifications to the trial court. This
brief will prove that minority students were justifiably
admitted to the Davis Medical School on the basis of their
competitive qualifications. The proof will depend on pub
lished research and corroboration from the evidence avail
able in the record, with the understanding that the force of
the corroboration would be stronger if the truly relevant
evidence of the qualifications of rejected majority candi
dates were available.
A. LITTLE EVIDENCE APPEARS IN THE RECORD ABOUT THE QUALIFICA
TIONS OF STUDENTS.
Each candidate interviewed at Davis received a “ bench
mark score” from several raters. The “ benchmark scores”
of candidates heavily influenced the admission process.
However, there is no conclusive evidence about the average
“ benchmark scores” of majority1 and minority students,
and no evidence about the validity of the MCAT as a
predictor of medical school performance or the practice of
medicine. There was no attempt to show the effects of
racial background on MCAT scores.
The sparse record on this crucial issue of qualifications
resulted because the University did not perfect a proper
record. There have been ample indications that members of
the judiciary consider evidence of biased testing to be
crucial to the just resolution of lawsuits challenging Special
Admissions Programs, DeFunis v. OdeGaard, 416 U.S. 312,
336 (1974) (Douglas, J., dissenting); in the court below, 18
Cal .3d 34, 81-85 (Tobriner, .T., dissenting). Nonetheless,
Universities defending Special Admissions Programs have
not included evidence of test bias in the record.2 The court
G
1. Since only “ disadvantaged” minority students were con
sidered in the Special Admissions Program at Davis Medical School,
there were 15 minority students in 1973 and 10 in 1974 admitted
through the regular admission process (CT 174, 177). However,
since the relevant consideration is between accepted minority stu
dents evaluated in the Special Admissions program and rejected
majority candidates, this brief will speak of the cognate evidence
comparing regularly and specially admitted students as indicative
of majority and minority qualifications.
2. MR. JUSTICE DOUGLAS: Mr. Attorney General, when I
was teaching law many years ago, I discovered to my consternation
that these tests, these so-called tests, had built-in racial bias. Is
there any finding in this record as to your test!
MR. GORTON: There is no finding in this record, Mr. Justice
Douglas, because neither party wished even to bring that subject
ui>. Obviously Mr. DeFunis would not make that claim, and the
University of Washington did not attempt in court to prove that it
engaged in previous racial discrimination. DeFunis v. OdeOaard,
oral argument in the United States Supreme Court, February 26,
1974 in DeFunis versus OdeOaard and the University of Washing
ton, vol. I l l at 1339 (A. Ginger, ed. 1974).
below did not consider the possibility of test bias simply
because there was no such evidence in the record, 18 Cal.3d
34, 60. With no evidence in the record relating to qualifica
tions it was an error to decide the issue.
B. THE COURT BELOW SHOULD NOT HAVE CONCLUDED THAT REJECTED
MAJORITY CANDIDATES WERE MORE QUALIFIED ON THE BASIS OF
"BENCHMARK SCORES."
Candidates granted an interview at the Davis Medical
School were assigned a “benchmark score” which, with in
frequent exceptions, controlled the ultimate decision to
admit students (CT 158-159). These “benchmark scores”
were combined numerical ratings from five or six admission
committee members, each of whom rated a candidate on a
scale of 100 jioints after reviewing the application form,
letters of recommendation, interview summary, MCAT
scores, undergraduate grade point averages (UGPA), as
well as considering the motivation, character, imagination
and the type and locale of practice anticipated of each
candidate, 18 Cal.3d 34, 41.
Crucial as these “ benchmark scores” were to the admis
sion process and are to the determination of the relative
qualifications of accepted minority candidates and rejected
majority candidates, the only named individual whose
“ benchmark score” appears is Allan Bakke.3 There is no
indication of any minority scores given in 1974. The only
reference to minority scores given in 1973 is a vague recol
lection by the Dean of Admissions that they “ average prob
ably about ten to 30 points below” the 468 which Mr. Bakke
received (CT 181). The range of minority “benchmark
scores” is not indicated. At least one majority candidate was
3. In 1973, Mr. Bakke received a “ benchmark score” of 438 out
of 500 (CT 181). In 1974, he received a score of 549 out of GOO
(CT 185).
7
admitted with a “benchmark score” sixteen points below the
4G8 of Mr. Bakke (CT 181). Thus, some minority students
accepted had higher “benchmark scores” than some accepted
majority students.
Furthermore, whatever “benchmark scores” actually were
assigned, they should not serve as the basis for a color-blind
admission process. A variety of information, much of it
completely subjective, formed the basis for these scores.
Raters were given no written instructions about combining
this information. At least two of the factors have a poten
tial for a racially discriminatory impact and therefore affect
the raters’ perceptions of the qualifications of minority
candidates even if the University sought to avoid a racially
discriminatory result.
The first biasing factor is the personal interview of can
didates. These interpersonal sessions were unstructured
and the interview summaries were unstandardized (CT
155). There is a substantial potential for both the debilitat
ing influence of racial prejudice on the rapport between
candidate and interviewer and the injection of personal
biases by interviewers into their summaries. In Title VII,
42 U.S.C. 2000e et seq., as amended, where such subjective
evaluations have been the basis for a hiring process and
resulted in minority applicants appearing less qualified than
majority candidates interviewed by majority interviewers,
a prima facie case of discrimination is established, U.S. v.
Hazelwood School District, 534 F.2d 805, 812-814 (8th Cir.
197G); Roive v. General Motors, 458 F.2d 348 (5th Cir.
1972).4 5 6 The court below erred in assuming no discrimination
4. See also Executive Order 11246, as amended, which says that
“ where there exist data suggesting that such unfair discrimination
or exclusion of minorities . . . exists, the contractor should analyze
his unscorcd procedures and eliminate them if they arc not objec
tively valid.” 41 C.F.R. § 60-2.24 (d) (3).
8
against minorities occurred when the procedure used at
Davis caused minority candidates to seem “ less qualified.”
The second biasing factor is the MCAT. The test scores
of each candidate were available to each rater. Their seem
ing objectivity heavily influenced raters in assigning un
equal ratings to different candidates.® However, a critical
review of published research indicates that the MCAT is not
a valid indicator of performance as a medical student, an
intern or resident, or a practicing physician. Compounding
this problem, there is an unjustified racially discriminatory
impact embodied in these test scores. Thus, heavy reliance
on MCAT scores made candidates from different racial
backgrounds seem unequally qualified without justification.
C. THE MEDICAL COLLEGE ADMISSION TEST (MCAT) SCORES DO NOT
IDENTIFY MORE QUALIFIED STUDENTS.
There is a significant gap in the average MCAT scores of
majority and minority students accepted at Davis Medical
School.0 This gap serves as a barrier to minority admission
and made those minority students admitted seem “ less
qualified” than majority students. First, students not con
sidered “ disadvantaged” had to present UGPAs above 2.5
and also provide “very positive” evidence to offset low
9
5. A statistical study of the factors ultimately affecting accept
ances among the 1972-1973 applicant pool to Davis Medical School
concluded, “ It is apparent that grades as measured hy G.P.A.,
MCAT scores, (especially science MCAT score) and age of appli
cant were the most important factors determining whether an appli
cant was accepted or rejected. J. Baumer, Summary of the Results
of the Study on the Subjective and Objective Characteristics of
Applicants to the TJ.C.D. School of Medicine, 25-26 (unpublished).
6. In 1973, the average percentile rankings of majority students
on the four MCAT subtests were 81 Verbal, 76 Quantitative, 69
General Information, 83 Science; for minority students: 46, 24, 33,
and 35. In 1974, the average majority student percentiles were 69,
67, 72, and 82; for minority students: 34, 30, 18, and 37.
MCAT scores before being interviewed (CT 153). Since
minority candidates are more likely to have low MCAT
scores, “nondisadvantaged” minority students were less
likely to be interviewed despite competitive UGPAs. Sec
ond, those minority students granted an interview were
given a “benchmark score” which largely reflected MCAT
scores. Thus, the record makes minority students appear
much less qualified because of the seemingly objective
MCAT. Yet the MCAT does not “bear a demonstrable rela
tionship to successful performance” in medical school or as
a physician, Griggs v. Duke Power Co., 401 U.S. 424, 431
(1971). The MCAT should justify neither rejecting minor
ity candidates nor disparaging the qualifications of those
minority students accepted.
There is a considerable body of literature, not included
in the record developed by the University, which searches
for evidence that the MCAT predicts medical school or
physician performance and fails to find such evidence.7
Some of the more significant research findings are dis
cussed below.
A total of 49 students were admitted to the University of
Rochester School of Medicine between 1949 and 1962 with
MCAT scores significantly below the typical students. The
gap in MCAT scores was similar to that apparent at Davis
Medical School.8 9 Nevertheless, 92 percent of the low-MCAT
7. This has already led to one revision in 1962 of the original
MCAT developed in 1946, Erdmann, “ Editorial, Separating wheat
from chaff: revision of the MCAT,” 47 J.Med.Ed. 747 (1972), and
will result in another revision in the immediate future, 18 Cal. 3d
34, 84-85. (Tobriner, J., dissenting).
8. The gaps in MCAT scores between the typical student and
the low-MCAT students (not identified by race) were 142 points on
the Verbal subtest, 87 on Quantitative, 110 on Modern Society (now
called General Information) and 124 on Science.
10
students graduated from medical school, compared to 93
percent of the typical students, Bartlett, “ Medical school
and career performances of medical students with low
Medical College Admission Test scores,” 42 J.Med.Ed. 231
(1967).
A study of the performance of 400 students from 4
classes of students at the Harvard Medical School compared
MCAT verbal and quantitative ability subtests with medical
school grades. There were minimally significant statistical
correlations in only a few instances and no statistically sig
nificant results when a single class of 100 students was
compared, Funkenstein, “ Current problems in the Verbal
and Quantitative Ability subtests of the Medical College
Admission Test,” 40 J.Med.Ed. 1031 (1965).
A study reported in 1963 found a statistically significant
correlation between the MCAT science subtest and academic
grades in only 6 of the 11 medical schools studied, Peterson,
Lyden, Geiger, and Colton, “ Appraisal of medical students’
abilities as related to training and careers after gradua
tion,” 269 New Eng.J.Mcd. 1174 (1963).
A study of 1088 students from 14 classes at the University
of California School of Medicine in San Francisco, com
pared MCAT subtest scores and medical school grades.
Despite a wide variation in MCAT scores among students,
there was virtually no relationship between those scores and
medical school grades.0
A study in 1961 by the Association of American Medical
Colleges, the owners of the MCAT, generally showed higher
MCAT scores were associated with higher medical school
9. The range of scores on subtests was considerable, running
from approximately 320 to 800 on a scale of 200 to 800. The corre
lations were: MCAT verbal .04, MCAT quantitative .15, MCAT
science .13 (a perfect correlation would be 1.00), Gough, Ilall and
Harris, “ Admissions procedures as forecasters of performance in
medical training,” 38 J.Med.Ed. 983 (1963).
11
grades. The study was “ exploratory in nature and limited
itself to small groups at the extreme ends of the MCAT
scale” and the findings were equivocal enough that “ a num
ber of students in the low group not only made regular
progress through medical school, hut also made excellent
grades while in school,” Association of American Medical
Colleges, Division of Dasic Research, “ Medical school per
formance of high and low MCAT students,” 3G J.Med.Ed.
1733 (19G1).
A 1972 study found that higher MCAT scores were asso
ciated with lower grades in the basic science courses at the
University of Kentucky College of Medicine, Ilalo and
Lerncr, “ The characteristics and performance of medical
students during preclinieal training,” 47 J.Med.Ed. 44G
(1972).
Another study found that higher undergraduate grades,
higher MCAT scores and higher clinical performance were
related. Nevertheless, the authors concluded with the obser
vation that: “ As one would expect, an emphasis on MCAT
scores and premedical GPA’s seem to systematically mx-
select with reference to such a criterion as Humanism,”
Korman, Stubblefield and Martin, “ Patterns of success in
medical school and their correlates,” 43 J.Med.Ed. 405
(19G8) (emphasis in original).
This observation is borne out by studies which find that
students in clinical situations who were highly rated actual
ly had lower MCAT scores than students rated less effective
as clinical students. Similar results occur in comparisons
between MCAT scores and performance as a physician.
An analysis of the clinical ability of 50 third-year students
at the Ohio State University College of Medicine found that
high MCAT science scores were related with lower ratings
of clinical ability, Turner, Helper and Kriska, “ Predictors
of clinical performance,” 49 J.Med.Ed. 338 (1974).
12
A study of 174 graduates from the University of Utah
College of Medicine between 1955 and 1959 found that high
er MCAT scores were associated with lower performance
as an intern, Richards, Taylor and Price, “The prediction
of medical intern performance,” 4G J.Appl.Psychol. 142
(1962).
A review of the performance of 180 physicians in a U.S.
Public Health Service Hospital from 19G0 to 19G4 showed
higher MCAT scores related to lower supervisory ratings
of physician performance, Howell and Vincent, “ The
Medical College Admission Test as related to achievement
tests in medicine and to supervisory evaluations of clinical
performance,” 42 J.Med.Ed. 1037 (1967).
Finally, Ceorge H. Lowry, Associate Dean, Student
Affairs and Chairman of the Admissions Committee at the
School of Medicine, University of California, Davis, wrote
in a recent newspaper article, “ X wholeheartedly agree with
the comments made concerning the uselessness of grades
and MCAT scores in deciding the applicant’s potential per
formance as a physician.” “Dean Lowry on Med Admis
sions,” Advocate-Borborygmi, April 14, 1975.
These studies indicate that the MCAT is, at best, a very
poor indication of a candidate’s qualifications to study or
practice medicine. Indeed, if an admission committee were
to follow literally the implications of studies relating MCAT
scores to physician performance it should prefer candidates
with lower scores. Assertions that candidates with higher
MCAT scores are more qualified to pursue a medical career
are unsupported by available research. The court did not
consider these findings and the court had no other evidence
before it to justify its conclusion that minority candidates
were less qualified. The comparison of candidates from
different racial groups on the basis of MCAT scores is
l;i .
particularly unjustified because there exists persuasive evi
dence that these scores also carry with them a disparate
racial impact.
Evidence of racial bias in the MCAT is relevant to the
factual issue of whether minority students are less qualified
than rejected majority candidates. The evidence is not cited
to suggest a legal conclusion that the University has dis
criminated in the past by relying on MCAT scores to admit
students. Likewise, the Court is not being asked to actively
intervene in the University’s admission process to increase
the number of minority students admitted. Such judicial
activity on the basis of the Fourteenth Amendment to the
Constitution would be forthcoming only after a showing that
the University was intentionally discriminating against
minority candidates by relying on the MCAT scores, Wash
ington v. Davis, 9G S.Ct. 2040 (1970). Instead, this evidence
is being offered to justify the voluntary actions of the
University in evaluating candidates on factors other than
MCAT scores.
The racial and cultural bias in the MCAT is evident to
most candidates taking the test.10 Indeed, the history of the
development of the MCAT makes it quite probable that the
test would reflect white middle class culture. Rias is intro
duced into a test whenever a test is normed on one group
and used to evaluate members of another group, II. Averch,
S. Carroll, T. Donaldson, II. Kiesling, & J. Pincus, Ilow
Effective is Schooling? 22 (1971). This means that “ any
nationally normed test primarily reflects the characteristics
of white-middle-class America, simply because there are so
10. Of tliose students surveyed after taking the MOAT, 61 per
cent agreed that the “ content is oriented toward white, middle-class
culture,” Baird, “ What Graduate and Professional School Students
Think About Admissions Tests,” Measurement in Education, Spring
1977 at. 3, Table 1.
14
many of them.” Id. (sic). The MCAT was normed on
students taking the test in 1951, The Seventh li'ental
Measuremeyits Yearbook, 1511 (0. Buros, ed. 1972), at a
time when there were virtually no minority candidates for
medical school. The bias is likely to be even larger than for
a test normed on a representative sample of the population,
where minority representation would still be proportion
ately small.
Research about the performance of minorities on the
MCAT and in medical school evidences the bias on the
MCAT. A comparison of the average MCAT scores on the
four subtests reveals a gap of 105 to 155 points between
black and white students admitted in 1970, Johnson, Smith
and Tarnoff, “Recruitment and Progress of Minority
Medical School Entrants, 1970-1972,” 50 J.Med.Ed. 713, 755
Table 11 (1975). Thus, the average minority student
appears much less qualified than competing majority
students on this invalid predictor of performance. The only
statistical study of which we are aware comparing the
nationwide performance of minority and majority students
in medical school and' on the MCAT indicates that the large
performance gap between racial groups on the MCAT is
not reflected by a similar performance gap in medical school.
The study was conducted by the Association of American
Medical Colleges and concludes that the MCAT has a
modest ability to predict success in the first two years of
medical school when candidates from a single racial group
are compared. Thus, white medical students who complete
the first two years o f ; medical school on schedule have
somewhat higher MCAT scores than those who fail. Like
wise for black medical students. However, when candidates
from different racial groups are compared, the MCAT’s
predictive powers vanish. The author found:
15
16
for whatever reasons, the “black” group can “ succeed”
in medical school with lower MCAT scores than the
“ white” group, where success is narrowly defined as
uninterrupted progress through the first two years in
medical school— (the promoted group). For example
the black promoted group had lower MCAT averages
than the white dismissed group. Feitz, “ The MCAT and
Success in Medical School,” paper presented at the
Annual Convention of the American Educational Re
search Association, Chicago, Illinois, 1974. (emphasis
in original).
Thus, in concluding that accepted minority students were
“ less qualified” than rejected majority candidates, the court
below not only accepted scores on the MCAT as indicative
of relative qualifications when no such inference was war
ranted, but also relied on a test whose history, evident
cultural bias and statistical properties made minority can
didates the predictable underdogs in the qualification com
parisons. Instead the court should have concluded that the
University was avoiding racial discrimination, not inflicting
it, when it admitted minority candidates with lower MCAT
scores. The reluctance of the University to present evidence
for such a conclusion should not excuse the lower court’s
ignoring such evidence presented by amici, 18 Cal.3d 34, CO,
and conjuring reverse discrimination instead.
D. THE CONSIDERATION OF UNDERGRADUATE GRADE POINT AVERAGE,
A MORE VALID PREDICTOR OF AN APPLICANT'S PERFORMANCE. DOES
NOT SUSTAIN A CONCLUSION THAT MINORITY STUDENTS ARE LESS
QUALIFIED.
It is often assumed that minority candidates for medical
school have inferior qualifications on “ objective” criteria
such as the MCAT and UGPA. However, the record below
and published research indicate that comparisons among
candidates on the basis of UGPA does not produce signi
17
ficant differences, much less differences of constitutional
significance, between candidates of different racial back-
grounds. Moreover, insofar as UGPA is justifiably relied
upon to predict performance as a medical student or
physician, the prediction is more valid than prediction based
on MCAT scores. Thus, UGPA, a factor which reflects
motivation, perseverence and sustained competition among
candidates, affords a more predictive, less discriminatory
indicator of “ qualifications” than the MCAT.
The record indicates that there was a wide range in
UGPAs among accepted majority students.11 UGPA was
not an overwhelming determinant of admission. This is a
reasonable reliance on UGPA, consonent with available
research, see D. Iloyt, “ The Relationship between College
Grades and Adult Achievement: A Review of the Litera
ture,” American College Testing Program, Research Re
port, no. 7 (1965). The Special Admissions Program gave a
similar weight to UGPAs of minority students, since the
range of UGPAs is similar to the range among majority
students.12 More importantly, the range of UGPAs within
racial groups is considerably larger than the difference in
average UGPA between racial groups.13 Thus, the essential
conclusion of the court below—that less qualified minority
students were admitted in preference to more qualified
majority candidates—cannot be supported by referring to
11. In 1973, majority students had UGPAs ranging from 2.81 to
3.99. In 1974, the range was 2.79 to 4.00 (CT 210, 223).
12. In 1973, minority students had UGPAs ranging from 2.11
to 3.76. In 1974, the range was 2.21 to 3.45, (CT 210, 223).
13. In 1973, the difference between the highest and lowest
UGPA of majority students was 1.18; in 1974 it was 1.21. For
minority students, the difference in 1973 was 1.65; in 1974 it was
1.24. In contrast, the average UGPA for majority students in 1973
was only .61 above the average UGPA for minority students; in
1974 it was .67 (CT 210, 223).
the groups’ comparative UQPAs. Indeed, in the individual
case of Allan Bakke, his UGPA was higher than the average
majority student accepted in botli 1973 and 1974, (CT 321).
To ignore this fact and instead focus on his qualifications
vis-a-vis minority students is itself a racist comparison. A
careful consideration of the evidence would show that
UGPA is a less discriminatory indicator of qualifications
than is the MCAT.
The UGPA is also a more valid predictor, although a
modest one, of medical school and physician performance
than is the MCAT, see Conger and Fitz, “Prediction of
success in medical school,” 38 J.Med.Ed. 943 (19G3); Gough,
Hall and Harris, “ Admissions procedures as forecasters of
performance by medical students,” 38 J.Med.Ed. 983 (1963);
Richards, Taylor and Price, “The prediction of medical
intern performance,” 46 J.Appl.Psychol. 142 (1962); but
cf. Price, Taylor, Richards and Jacobsen, “ Measurement of
physician performance; Discussion,” 39 J.Med.Ed. 203
(1964). This predictive power also applies to grades from
little known colleges, Moffat, Jacobs and Metcalf, “ Predic
tors of academic performance in gross anatomy,” 46 J.Med.
Ed. 545 (1971).
It was egregious error for the court below to assume that
accepted minority students were “ less qualified” than
rejected majority candidates. The record, which is sparse,
may make minority students appear inferior when MCAT
scores are heavily weighted, but does not document sub
stantial differences when UGPA is considered. Published
research buttresses the conclusion that minority students
are equally qualified to pursue medical studies. Tt was
therefore reversible error for the. court below to conclude
that minority students were admitted to Davis Medical
School unconstitutionally.
18 , 19
II. A Race-Conscious Admissions Policy Is Necessary and Not Stig
matizing.
A. THERE ARE COMPELLING REASONS TO RETAIN THE OPTION OF A
RACE-CONSCIOUS ADMISSIONS POLICY AMONG EQUALLY QUALIFIED
MAJORITY AND MINORITY CANDIDATES.
The court below required the University to offer com
pelling reasons for preferring “ less qualified” minority
candidates. This brief has already disputed the assumption
that minority candidates were “ less qualified.” The conclu
sion that minority and majority candidates were equally
qualified to enter medical'school does not eliminate the need
to be race-conscious in selecting medical students. This brief
will assume the strict burden of showing a compelling state
interest for a race-conscious admission policy among
equally qualified candidates of different races. Race-con
sciousness, as justified in this brief, does not involve a
preference for minority candidates but the avoidance of
personal or institutional racism in the admission process.
The Executive Order program, which requires afiirmative
action of employers even after they adopt unbiased selec
tion procedures, 41 C.F.R. §60-3.11, has been found con
stitutional. Cf. cases cited at 18 Cal.3d 34, 71 n. 6 (Tobriner,
J., dissenting). The measures suggested below are as neces
sary to avoid perpetuation of discrimination in the medical
profession as the Executive Order program is to do like
wise in the construction industry, Contractors Ass’n of
Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3rd Cir.
1971), cert. den. 404 U.S. 854 (1971) so that the largest
pool of qualified applicants can be considered for admission,
compare id. at 171, 177.
1. Racially biased admission tests require different
interpretations for members of different racial groups.
Before a school can select the most qualified students, it
must adjust the interpretation of MCAT scores to aeconi-
modate the different backgrounds of candidates. Since the
MCAT produces a disparate racial impact, interpretation
of tliose scores must necessarily consider the race of an
applicant. No less onerous alternative exists. To ignore the
racial bias in the MCAT would itself be racial discrimina
tion. A University can constitutionally avoid that discrimi
nation.
2. Racially diverse populations with unmet health care
needs require a racially diverse medical profession.
The vast unmet health needs of racial minorities are well
documented in the briefs of other amici before this Court.
Minority candidates whose academic qualifications are com
petitive with those of majority candidates are often more
qualified to meet the health needs of minority communities.
Minority students have a common cultural and ethical back
ground to establish rapport with minority patients. More
over, minority students are more likely to return to their
own minority communities which have been chronically
neglected by the medical profession. Not all minority
students will have the inclination or sensitivity to serve
minority patients, but even their choice of the medical pro
fession serves to integrate segments of our society that
previously remained segregated. So too, not only minority
students can serve minority communities effectively. But
an admissions process which today places heavy reliance on
the MCAT, which predicts overall physician performance
so poorly, should be able to rely on the predictive ability
which race-consciousness provides in identifying candidates
likely to ease unmet health needs. Indeed, it is difficult to
imagine an admission policy which sought candidates
qualified to serve in underserviced communities without
considering the race of candidates.
3. The admission process should be conducted by a
racially integrated committee.
20
In order to arrive at a race-neutral result after a complex
admission process, there is a need to be race-conscious in
the selection of admission committee members. At the very
least, the presence of minority officials on the committee
serves as a safeguard against invidious discrimination
which may be difficult to prove or remedy.14 In addition,
minority officials can sensitize other committee members of
the need to carefully evaluate minority candidates’ quali
fications. Due to the chronic underrepresentation of racial
minorities in the medical profession, there are very few
minority doctors presently staffing medical faculties.15 This
means that minority faculty members will have to bo chosen
to serve on the committee because of their race. The inte
gration of faculties has already been upheld by this Court,
United States v. Montgomery County Board of Education,
395 U.S. 225 (1969); Sivann v. Board of Education, 402 U.S.
1 (1971), and thus racially integrated committees are also
constitutional.
4. Some admission officers may express attitudes which
would make it likely that minority candidates would not be
fairly considered.
Since avowed racists and .individuals unsympathetic to
“ Special Admission” of minority candidates still populate
14. The mere presence of a minority official on an admission
committee should not substitute for judicial scrutiny of the preju
dicial admission policies, since “ members of minority groups fre
quently respond to discrimination and prejudice by attempting to
disassociate themselves from the group, even to the point of adopt
ing the majority’s negative attitudes towards the minority.” Casta
neda v. Partida, 45 TJ.S.L.W. 4302, 4308 (U.S. March 23, 1977)
(Marshall, J., concurring).
15. At Davis, there arc over 1,100 members of the medical school
faculty, 16 School of Medicine Bulletin, University of California,
Davis 1976-77 (Sept. 1976). There are only 5 minority faculty
members, Association of American Medical Colleges, Medical School
Admissions Bequirements, USA and Canada 1976-1977, Table G-D.
21
the faculty and staff of medical schools,10 the University
may have to isolate certain officials so that they do not
unfairly evaluate the qualifications of minority candidates.
This race-conscious action would seek a race-neutral result
by assigning other duties to individuals unable to commu
nicate with or fairly evaluate minority applicants.11
5. A subjective interview procedure will yield the most
information if the race of the candidates is known.
The Davis program selected candidates in two stages.
The first phase looks only at paper qualifications. The second
looks for personal qualities likely to produce the best doc
tor. This inherently subjective phase will produce better
information if it is race-conscious.. If racial prejudices
affect the course of the interview or the written summary
of the interview prepared at Davis, then the University will
fail to find the best candidates for the medical profession.
If the University is seeking students likely to serve medi
cally neglected areas, a race-conscious interview j^rocedure
is particularly necessary to assess the person’s career goals.
A race-conscious interview process does not require inter
viewers to evaluate only members of their own race, but it
does require the University, with knowledge of a candidate’s
race, to assign interviewers.* * * * * 17 18 The race-conscious scheduling
1G. For example, correspondence between Allan Bakke and the
Assistant to the Dean for Student Affairs/Admissions at Davis
Medical School, indicates that at least one member of the admissions
committee shared Mr. Bakkc’s misgivings about the Special Admis
sion program, (CT 259-2G9).
17. The Executive Order program, 41 C.F.R. § 60-2.24(d) (1),
stipulates that “ All persons involved in the recruiting, screening,
selection, . . . and related processes shall be carefully selected and
trained to insure elimination of bias in all personnel actions.”
18. Compare J. Campbell, L. Pike and R. Flaugher, Prediction
of Jolt Performance for Negro and White Medical Technicians
(19G9) which found that supervisors rated members of their own
race more favorably.
22
of interviews is analogous, but less onerous, than the assign
ment of voting district boundaries with conscious regard
to the racial composition of the voting population, United
Jewish Organizations of Williamsburgh v. Carey, 45 U.S.
LAV. 4221 (March 1, 1977). Where race-influenced voting
occurs, minority interests are protected to the extent that
members of these racial groups will actually win some
elections. Id. at 4227 (White, J., joined by Rehnquist and
Stevens, JJ.) Race-conscious interviewing merely assures
each candidate for admission that rejection will not be based
on their race.
6. As an administrative convenience, a subcommittee
evaluating minority candidates can be given an approximate
target for issuing letters of acceptance.
It would be an administrative nightmare to avoid prej
udiced evaluations of minority candidates by juggling inter
view schedules within a single admission committee. Instead,
those officials best able to evaluate minority candidates must
be identified and assigned the responsibility of doing so.
As a separate subcommittee, members can critically com
pare the special qualifications of candidates likely to be able
to serve underserviced areas of the profession. Once such
a committee is established, it must be given an approximate
target for issuing letters of acceptance. At Davis, interviews
were conducted over the course of several months and letters
of acceptance were issued during that period in rough pro
portion to the percentage of projected interviews which had
already been conducted, (CT 1G7). Minority acceptances
were apportioned similarly, (CT GG, 1G5). Whether the
target given the subcommittee is based on the application
rate among minority candidates, the minority pojmlation
to be served by medical graduates, or the previous academic
performance of minority students in medical school should
23
24
be constitutionally irrelevant,10 so long as the target was
not a rigid quota which would be filled even if some students
were not qualified to study medicine, cf. Associated General
Contractors of Mass., Inc. v. Altshuler, 490 F.2d 9, 18-19
(1st Cir. 1973), cert. den. 416 U.S. 957 (1974). The Davis
program was not such a quota, 18 Cal.3d 34, 89 (Tobriner,
J., dissenting).
B. WHERE A LARGE NUMBER OF EQUALLY QUALIFIED CANDIDATES
APPLY FOR A LIMITED NUMBER OF POSITIONS. A RACE-CONSCIOUS
ADMISSIONS PROCESS CARRIES NO STIGMA OF INFERIORITY.
A stigma attaches only from an assumption that minority
groups cannot qualify on their own merits. Tn this case
there is no dispute as to the fact that all of the students
accepted by the Davis Medical School are fully qualified
for the study of medicine. 18 Cal.3d 34, 82 (Tobriner, J.,
dissenting). A race-conscious admissions process identifies
the race of applicants in order to integrate the profession
and to identify candidates who are most likely to serve the
unmet professional needs of specific communities. No stigma
need attach when those accepted are undoubtedly qualified
to meet the needs of the profession.
The mere existence of a race-conscious admissions pro
cedure for minority candidates does riot automatically
carry with it the stigma which a “ separate but equal” edu
cational system necessarily does, cf. DeFunis v. Odeejaard, * 45
19. Cf. United Jewish Organizations of Williamshurgh v. Carey,
45 U.S.LAV. 4221, 4227 (March 1, 1977) (White, J. joined by Relm-
quist and Stevens, JJ.) (drawing district boundaries using race does
not violate constitution so long as majority population does not have
its voting strength minimized or unfairly cancelled out), accord, 45
U.S.LAV. at 4231 (Stewart, J., joined by Powell, J., concurring).
The court below noted that no basis for the 16 places allocated
disadvantaged minority students appears in the record, 132 Cal.
Rptr. 680, 683 n. 1. However, the court did not indicate which bases
would be permissible.
416 U.S. 312, 343 (Douglas, J., dissenting). A segregated
school system offers no opportunity for minority sttulcnts
to compete with and be compared against majority students.
Therefore, the minority students bear the burden of the
social assumption that they are indeed inferior. However,
a race-conscious admissions process affords minority candi
dates the opportunity to compete and participate on equal
terms with majority students in the same curriculum and
thereby begin to dispel the assumptions of racial inferiority
which still infect our society.
The admissions process conducted at Davis Medical
School may seem to convey a stigma against minority
candidates insofar as a separate cutoff UGPA was used in
screening regular and special admissions candidates for
the interview process. However, properly understood, this
procedure need convey no stigma. Since there were a large
number of applications received from majority candidates,
but only a limited capacity to interview candidates person
ally at Davis Medical School, a crude method of narrowing
the applicant pool—establishing a UGPA cutoff score—
allowed the admission committee to consider a limited num
ber of candidates. A cutoff is used as a matter of adminis
trative convenience and does not indicate that those below
the cutoff are not qualified for the study of medicine. In the
case of the minority a}jplicant pool, far fewer applications
were received and the admissions committee was able to
search for the additional relevant factors indicative of
actual physician performance from a larger percentage
of minority applicants. Thus, candidates with lower UGPA’s
were given interviews, and some were found to be among
the most qualified applicants after their complete qualifica
tions were reviewed.
The likelihood that a stigma will persist is immeasurably
heightened when a state University concedes or a court
concludes that minority applicants are “ less qualified” to
25
pursue professional education than majority students re
jected for such study. Such a conclusion by this court, based
on so skimpy a record as the one developed by the University
in the proceedings below, would unjustifiably place an
official stamp of inferiority upon minority students, cf.
Def unis v. Odegaard, 41G U.S. 312, 343 (Douglas, J., dissent
ing).
For this court to affirm the decision below may maintain
an insurmountable stigma. 18 Cal.3d 68 n. 2 (Tobriner, J.,
dissenting). It is the stigma of being excluded from these
professions that is most detrimental. Professional schools
have begun to realize that the underrepresentation of minor
ity individuals in professional schools is neither justified
on the basis of qualification nor desirable in terms of the
needs of these professions. Special admissions programs
were established to rectify this regrettable situation.
Special admissions merely provides equal opportunity
and access to quality education. The stigma that the Court
should fear most is the stigma which will arise from the
decline of minority professionals and the foreseeable sys
tematic rejection of qualified minority applicants that must
inevitably occur if these programs are declared constitution
ally prohibited. III.
III. Conclusion.
For the above reasons the judgment below should be
reversed.
Fjphraim Margolin
445 Sutter Street
San Francisco, CA 94108
Counsel for Amicus
David M. W hite
Childhood & Government Project
School of Law (Boalt Hall)
University of California, Berkeley
Berkeley, CA 94720
Of Counsel for Amicus
26
Appendix
IV. Minority Law Students Appear "Less Qualified" on the Basis
of Standardized Tests Than They Would Under Alternative
Criteria.
As law students, amici realize that the disposition of
this case will significantly affect the admission process at
publicly-supported law schools. In addition, minority law
students are damaged by a standardized test, the Law School
Admission Test (LSAT), in ways similar to the damage
imposed upon minority medical students by the MCAT.
Thus, the infirmities identified above concerning the
MCAT’s poor predictive ability and large discriminatory
impact are not merely idiosyncrasies of a single test, but
rather typical defects of standardized tests used to admit
candidates to the professions.
The weight of the evidence concerning the validity of the
LSAT, when compared to the validity of UGPA, actually
strengthens the argument concerning the poor validity of
the MCAT, since the LSAT has a moderate predictive
ability compared to the zero or negative correlations with
medical performance so common in studies of the MCAT.
Despite this moderate predictive ability of the LSAT, a
candidate’s UGPA “ is normally a better indicator of law
school performance than is the LSAT and if a school had
to choose to use only one predictor it would use the under
graduate grade point average.” Testimony of Frederick
M. Hart, President of the Law School Admission Council
before U.S. House of Representatives Special Subcommit
tee on Education, September 20,1974. Besides being a better
single predictor of law school performance than the LSAT,
the UGPA is also a less discriminatory predictor, Schrader
and Pitcher, “ Predicting Law School Grades for Black
American Law Students,” Law School Admission Council
Annual Report, 530, 507 Table 10 (1973).
2 ' Appendix
The implication of these facts is that reliance on the rela
tive LSAT scores of majority and minority candidates in
making admission decisions would result in an unjustifiable
underrepresentation of minority students in law school.
This is true even under the conservative definition of fair
representation based on the previous performance of minor
ity students in law school. This is because the performance
gap between racial groups on the LSAT is not reflected by
a similar performance gap in law school, Id. Since most law
schools typically rely heavily on the Predicted-First-Year-
Average (PFYA) of candidates to arrive at admission
decisions, it is more appropriate to analyze the effects of the
PFYA which combines LSAT and UGPA. Research indi
cates that reliance on the PFYA would result in a significant
underrepresentation of minority students in law school,1
Breland and lronson, “DeFimis Reconsidered: A Compara
tive Analysis of Alternative Admission Strategies,” 13
J.Ed.Meas. 89 (1970).
1. Research commonly shows that law school grades of minority
students are slightly overpredicted by LSAT scores or PFYAs.
However, it is possible to have “ overprediction” of grades and
underrepresentation of minority students in the same situation,
Thorndike, “ Concepts of Cultural Fairness,” 8 J.Ed.Meas. 63
(1971). Statistical theory would lead one to expect “ overprediction”
whenever a group scores below another on both a standardized test
and in school, Schrader and Pitcher, “ Prediction of Law School
Grades for Mexican American and Black American Students,” Law
School Admission Council Annual Report, 527, 528 (1974). Thus,
“ overprcdiction” findings persist in situations where minority stu
dents earn slightly lower grades in school, but considerably lower
scores on standardized tests. Research indicates that significant
underrepresentation of minority students occurs in the vast major
ity of situations where “ overprcdiction” of their grades has been
found, Schmidt and Hunter, “ Racial and Ethnic Bias in Psycho
logical Tests: Divergent Implications of Two Definitions of Test
Bias,” 29 American Psychologist 1 (1974). The likelihood of having
both “ overprcdiction” of grades and underrepresentation of stu
dents increases as the test’s predictive validity decreases and the
performance gap between majority and minority students on the
test, widens, Thordike, “ Concepts of Culture Fairness,” 8 J.Ed.Meas.
63, 68 (1971).
Appendix -t 3
The LSAT is not the only standardized test which aspiring
minority candidates to the legal profession must confront.
Today, the typical lawyer will have to excel on the Scholastic
Aptitude Test (SAT) before entering college, and on the
Multistate Bar Examination (MBE) to pass the bar in over
forty jurisdictions. Yet research indicates that the per-
• • 1formance gap between majority and minority students on
the SAT is larger than the gap in grades received on cam
puses of the University of California, Goldman and Ifewitt,
“ Predicting the Success of Black, Chicano, Oriental and
White College Students,” 13 J.Ed.Meas. 107, 11G (1970).
Likewise, the performance gap between majority and minor
ity candidates for the bar in Colorado is smaller on the
essay portion of the bar examination than on the MBE,
Colorado Advisory Committee to the U.S. Commission on
Civil Rights. Access to the Legal Profession in Colorado
by Minorities and Women, 49 (1970). This pattern of bias
on standardized tests makes even more urgent the con
frontation of bias in the MCAT during the resolution of
of this lawsuit.
I
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SUBJECT INDEX
Interest of the Amicus Curiae
Page
... 1
Statement of the C ase................................................. 4
Summary of Argument ............................................... 5
Argument ................................................. .'.................. 9
I
The Constitution Commands a Single Standard
for the Evaluation of the Constitutionality of
Racial Classifications Under the Equal Protec
tion Clause of the Fourteenth Amendment: All
Racial Classifications Are Properly Subject to
Strict Scrutiny Which Must Find Them to Be
Necessary to the Achievement of a Compelling
Government Interest .......................................... 9
II
The Racial Classification Embodied in the Task
Force Program at the Medical School of the
University of California Violates the Equal
Protection Clause of the Fourteenth Amend
ment Because It Is Not Necessary to the
Achievement of a Compelling Government
Interest ................................................................ 15
A. The Racial Classification Herein Works a
Deprivation Upon Individuals and Falls
Within the Purview of the Equal Pro
tection Clause ............................................ 15
B. The Only Compelling Government Inter
est Which Properly Justifies the Use of a
Racial Classification Is the Necessity to
Alben
(15
Alevy
348
Andci
Sup
Antaz
P.2
Assoc
Inc
cen
Bakkc
Cal
(19
Beer v
Bell v.
Bostoi
F.2i
noir
NA.
Bradin
Corj
Bradle
Broidn
595.
Brown
Remedy Specific Past Racial Discrimina
tion by the Institution Using the Classifi
cation; Such a Compelling Interest Is Not
Present in This Case .................................. 18
C. None of the Interests Asserted by the Uni
versity to Be Furthered by This Racial
Classification Have Been Shown to Be
Both Compelling and Necessary .............. 26
III
Even if in the Present Case There Is a Com
pelling Government Interest to Support a
Racial Classification, the Government May Not
Use a Numerical Quota or Goal to Achieve
Such an Interest Without Violation of the
Equal Protection Clause of the Fourteenth
Amendment ......................................................... 35
A. The Task Force Program at the Medical
School Is a Numerical Racial Quota........ 35
B. Whenever a Numerical or Percentage
Value Is Assigned to a Racial Goal and
Such a Goal Is Backed by Government
Coercion, the Result Is a Quota........... . 36
C. Racial Quotas Are Universally Deplored;
This Court Has Never Sanctioned or
Imposed a Racial Quota or Goal and
Lower Courts Have Used Racial Quotas
or Goals Only to Redress Specific Past
Discrimination and Then Only With Ex
treme Caution and Restraint..................... 39
Conclusion .................................................................... 50
TABLE OF AUTHORITIES CITED
Cases Page
Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) .................................................................. 2
Alevy v. Downstate Medical Center, 39 N.Y.2d 326,
348 N.E.2d 537, 384 N.Y.S.2d 82 (1976)
............................................................................... 11, 44
Anderson v. San Francisco School District, 357 F.
Supp. 248 (N.D. Cal. 1972) ................................ 46
Antazo, In re, 3 Cal.3d 100, 89 Cal.Rptr. 255, 473
P.2d 999 (1970) ..................................................... 35
Associated General Contractors of Massachusetts,
Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973),
cert, denied, 416 U.S. 957 (1974) ...................23, 24
Bakke v. Regents of the University of California, 18
Cal. 3d 34, 53 P.2d 1152, 132 Cal. Rptr. 680
(1976) ............................................. ....................... 11
Beer v. United States, 425 U.S. 130 (1976) ............ 41
Bell v. Burson, 402 U.S. 535 (1971) ....................... 32
Boston Chapter, NAACP, Inc. v. Beecher, 504
F.2d 1017 (1st Cir. 1974), cert, denied sub
nom., Director of Civil Service v. Boston Chapter
NAACP, Inc., 421 U.S. 910 (1975) ................... 22
Bradington v. International Business Machines
Corp., 5 FEP Cases 1123 (D. Md. 1973) .......... 25
Bradley v. School Board, 382 U.S. 103 (1965) .... 28
Broidrick v. Lindsay, 39 N.Y.2d 641, 350 N.E.2d
595, 385 N.Y.S.2d 265 (1976) ..... ..................... 44
Brown v. Board of Education, 347 U.S. 483 (1954)
................................................................................... 9
Page
ssm-
Not
Uni-
acial
o Be
Com-
rt a
v Not
hi eve
f the
:enth
35
.dical
35
^ ^ e
iment
36
lored;
d or
I and
'uotas
■ Past
h Ex-
IV.
Brunetti v. City of Berkeley, ........ F.Supp........... ,
12 F.E.P. Cases 937 (N.D. Cal. 1975) ............. 46
Carrington v. Rash, 380 U.S. 89 (1965) ................ 32
Carter v. Gallagher, 452 F.2d 315 ( 8th Cir.), cert,
denied, 406 U.S. 950 (1972) .................. 23, 4 3 , 4 7
Cassell v. Texas, 339 U.S. 282 (1950) ................... 41
Contractors Ass’n of Eastern Pennsylvania v. Secre
tary of Labor, 442 F.2 d 159 (3d Cir.), cert,
denied, 404 U.S. 854 (1971) ........................... 23, 24
Cramer v. Virginia Commonwealth University, 415
F. Supp. 673 (E.D. Va. 1976), appeal pending,
(4th Cir. No. 76-1937) ......................... 38. 4 5 . 46
Crawford v. Board of Education of the City of Los
Angeles, 17 Cal.3d 280, 130 Cal.Rptr. 724,
551 P.2d 28 (1976) ............................................ 3 4
DeFunis v. Odegaard, 82 Wash. 2d 1 1 , 507 P.2d
1169 (1973), vacated as moot, 416 U.S. 312
O 974) .........................2, 11, 16, 17, 18, 29, 32, 48
Dunn v. Blumstein, 405 U.S. 330 (1972) .............. 30
Eisenstadt v. Baird, 405 U.S. 438 (1972) ................ 27
Emporium Capwell Co. v. Western Addition Com
munity Organization, 420 U.S. 50 (1975) ........ 42
Equal Employment Opportunity Commission, De
cision CL68-12-431EU, 2 FEP Cases 295 (1969)
...................................... -............................................ 25
Equal Employment Opportunity Commission, De
cision 70-312, 2 FEP Cases 309 (1969) ............ 25
Equal Employment Opportunity Commission, De
cision 75-268, 10 FEP Cases 1502 (1975) ..... 46
Page
Equal 1
Local
Ass’n.
Esponill.
Cases
Fekete \
(3rd -
Flanagai
(D.D.
Franks
747 (
General
( 197(
Goss v.
Griggs \
Harper \
Harper \
(D. h
nom 1
1973)
Hirabay;
Hughes \
Hu part v
1087
Internal
States.
Page
46
32
), cert.
23, 43, 47
41
. Secre-
), cert.
..... 23, 24
ty, 415
'ending,
38, 45, 46
of Los
r. 724,
34
)7 P.2d
S. 312
29, 32, 48
• .... 30
27
n Com-
) ........ 42
on, De-
(1969)
25
on, De-
25
on, De-
75) ..... 46
Equal Employment Opportunity Commission v.
Local 638, Sheet Metal Workers International
Ass’n, 532 F.2d 821 (2d Cir. 1976) ..........48, 49
Esponilla v. Trans-World Airlines, Inc., 7 FEP
Cases 1102 (N.D. Cal. 1974) ............................. 25
Fekete v. United States Steel Corp., 424 F.2d 331
(3rd Cir. 1970) ...................................................... 25
Flanagan v. Georgetown College, 417 F. Supp. 377
(D.D.C. 1976) ....................................................... 46
Franks v. Bowman Transportation Co., 424 U.S.
747 (1976) ............................................................2, 20
General Electric Co. v. Gilbert, 429 U.S. 125
(1976) .................................................................... 2
Goss v. Board of Education, 373 U.S. 683 (1963)
/
.................................................................................... 9
Griggs v. Duke Power Co., 401 U.S. 424 (1971)
........................................................................ 3, 20, 41
Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973)
............................................................................... 11, 23
Harper v. Mayor of Baltimore, 359 F. Supp. 1187
(D. Md. 1973), modified on other grounds sub
nom Harper v. Kloster, 486 F.2d 1134 (4th Cir.
1973) ...................................................................... 11
Hirabayashi v. United States, 320 U.S. 81 (1943)
.................................................................... 6, 9, 18, 21
Hughes v. Superior Court, 339 U.S. 460 (1950) ....
..................................................... ......................... 41, 42
Hupart v. Board of Higher Education, 420 F. Supp.
1087 (S.D.N.Y. 1976) .......................................... 46
International Brotherhood of Teamsters v. United
States, 45 U.S.L.W. 4506 (May 31, 1977) ....
................................................................20, 44, 45, 47
v.
Page
c v
>„r-xju v.. *
James v. Strange, 407 U.S. 128 (1972) ................... 27
Katzenbach v. Morgan, 384 U.S. 641 (1966) ........ 16
Kirkland v. New York State Department of Cor
rectional Services, 520 F.2d 420 (2d Cir. 1975),
cert, denied, 429 U.S. 823 (1976) ...................47, 48
Korematsu v. United States, 323 U.S. 214 (1944)
.................................................................... 6, 9, 18, 21
Lau v. Nichols, 414 U.S. 563 (1974) ................ 16, 31
Lee v. Washington, 390 U.S. 333 (1968) .............. 9
Lige v. Town of Montclair, 72 NJ. 5, 367 A.2d
833 (1976) ........................................................12, 45
Loving v. Virginia, 388 U.S. 1 (1967) ..................... 9
Lucido v. Cravath, Swaine and Moore, 425 F. Supp.
123 (S.D.N.Y. 1977) ............................................ 25
Marlowe v. General Motors Corp., 489 F.2d 1057
(6th Cir. 1973) ..................................................... 25
McAleer v. A. T. & T. Co., 416 F.Supp. 435 (D.
D.C. 1976) .............................................................. 46
McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) ............................. 2, 10
McGinnis v. Royster, 410 U.S. 263 (1973) ............ 27
McLaughlin v. Florida, 379 U.S. 184 (1964) ........ 9
Milliken v. Bradley (Milliken I), 418 U.S. 717
(1974) ................................................................ 19, 41
Milliken v. Bradley (Milliken II), 45 U.S.L.W.
4873 (June 27, 1977) ...................................... 31
Missouri ex rel. Gaines v. Canada, 305 U.S. 337
(1938) ...................................................................... 14
vi.
Page
Morro'
deni i
Mortor
NAAC
New Y 1
State
North (
402
Officer
395
Otero '
F.2d
Pasadci
U.S.
Pattersi
(4th
Pennsyl
Pa. 1
Perez v.
Reed v.
Rios v.
501 F
Sail’er Ii
329, c
San Frai
Cal.3c
(1971
Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert,
denied, 419 U.S. 895 (1974) ............................. 23
Morton v. Mancari, 417 U.S. 535 (1974) .............. 22
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974)
...................................................................... 23, 43, 47
New York on Behalf of New York County v. United
States, 419 U.S. 888 (1974) .................................. 21
North Carolina State Board of Education v. Swann,
402 U.S. 43 (1971) ............................................... 1 9
Officers for Justice v. Civil Service Commission,
395 F. Supp. 378 (N.D. Cal. 1975) ................... 23
Otero v. New York City Housing Authority, 484
F.2d 1122 (2d Cir. 1973) .................................... 1 2
Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976) .................................................1 9 , 4 1
Patterson v. American Tobacco Co., 535 F.2d 257
(4th Cir.), cert, denied, 429 U.S. 920 (1976) .. 22
Pennsylvania v. Glickman, 370 F. Supp. 724 (W.D.
Pa. 1974) .............................................................. 23
Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948)
................................................................................... 35
Reed v. Reed, 404 U.S. 71 (1971) .............................. 32
Rios v. Enterprise Ass’n Steamfitters, Local 638,
501 F.2d 622 (2d Cir. 1974) ...................22, 23, 43
Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr.
329, 485 P.2d 529 (1971) .................................... 3 4
San Francisco Unified School District v. Johnson, 3
Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669
(1971) .............................................; .................... 3 4
vii.
Page
[."•'? r; > • : ■ • *•: . ■ *i » fT .-. ‘
M 'ft ■ : , ' V
fe' v-.-2.j- 'c
Vill;
C
Wac
3'
P-
5(
Was
Web
1(
Web
41
in
Whii
Win1
v.
Yick
Uniti
Unit;
Unite
Web^
( l 1
Brief
leg
et .
Schlesinger v. Ballard, 419 U.S. 498 (1975) .......... 27
Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601,
487 P.2d 1241 (1971) ........................................ 34
Shelley v. Kraemer, 334 U.S. 1 (1948) .................. 14
Slamon v. Westinghouse Electric Corp., 8 FEP
Cases 1325 (D.C. Pa. 1974) ............................... 25
South Carolina v. Katzenbach, 383 U.S. 301
(1966) .................................................................... 21
Southern Illinois Builders Ass’n v. Ogilvie, 471 F.
2d 680 (7th Cir. 1972) ..................................23, 24
Stanley v. Illinois, 405 U.S. 645 (1972) ................... 32
Swann v. Charlotte-Mecklenburg Board of Educa
tion, 402 U.S. 1 (1971) ............6, 16, 19, 28, 41
Sweatt v. Painter, 339 U.S. 629 (1950) .................. 14
United Jewish Organizations of Williamsburgh, Inc.
v. Carey, 97 S. Ct. 996 (1977) ........... 20
United States v. International Union of Elevator
Const. Local No. 5, 538 F.2d 1012 (3d Cir.
1976) ...................................................................... 23
United States v. Iron Workers Local 86, 443 F.2d
544 (9th Cir.), cert, denied, 404 U.S. 984
(1971) .................................................................... 23
United States v. Local 212 IBEW, 472 F.2d 634
(6th Cir. 1973) ....................................... 23
United States v. Montgomery County Board of Edu
cation, 395 U.S. 225 (1969) ...........................16, 28
United States v. Wood, Wire & Metal Lathers Local
46, 471 F.2d 408 (2d Cir.) cert, denied, 412
U.S. 939 (1973) .................................................. 42
viii.
Page
Village of Arlington Heights v. Metro. Housing
Corp., 97 S.Ct. 555 (1977) ............... .................. 17
Wade v. Mississippi Cooperative Extension Service,
372 F. Supp. 126 (N.D. Miss. 1974), affd in
part, rev’d in part on other grounds, 528 F.2d
508 (5th Cir. 1976) ............................................... 23
Washington v. Davis, 426 U.S. 229 (1976) ............ 17
Weber v. Aetna Casualty and Surety Co., 406 U.S.
164 (1972) .............................................................. 27
Weber v. Kaiser Aluminum & Chemical Corp.,
415 F. Supp. 761 (E.D. La. 1975), appeal pend
ing, (5th Cir. No. 76-3266) .................................... 45
Whitcomb v. Chavis, 403 U.S. 124 (1971) ............ 41
Winston-Salem/Forsyth County Board of Education
v. Scott, 404 U.S. 1221 (1971) ............................ 41
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............ 10
Constitutional Provisions
United States Constitution, First Amendment ....32, 41
United States Constitution, Fourteenth Amendment
Page
............5, 6, 8, 9, 10, 11, 14, 15, 20, 35, 46, 49
United States Constitution, Fifteenth Amendment .. 21
Dictionary
Webster’s Third New International Dictionary, 648
(1961) ...................................................................... 17
Miscellaneous
Brief of the President and Fellows of Harvard Col
lege Amicus Curiae, DeFunis, et al. v. Odegaard,
et al., 416 U.S. 312 (1974) ......................... .......... 40
Page
^ 27
601,
........ 34
......... 14
FEP
......... 25
. 301
......... 21
71 F.
....23, 24
......... 32
duca-
9, 28, 41
.......... 14
t, Inc.
........... 20
evator
" . . . 23
1 F.2d
.. 984
.......... 23
d 634
.......... 23
>f Edu-
..... 16, 28
. Local
J. 412
;..........4 2
110 Congressional Record 7213 (1964) .............. 18
Office of Federal Contract Compliance Programs,
Technical Guidance Memorandum, May 5, 1976
..................................................... , ............................ 37
Report on Special Admissions at Boalt Hall After
Bakke (1976) ......................................................... 30
U.S. Bureau of the Census, Census of Population
1970, Vol. I, Characteristics of the Population,
Parts 6, 10, 32 ....................................................... 11
Orders
Executive Order No. 11246 .................................... 3, 36
Revised Order No. 4 ............................................. 3, 36
Revised Order No. 14 ............................................ 3, 36
Publications
Los Angeles Times, May 1, 1977, Sec. 1, at 9, col.
3 ................................ 14
New York Times, May 1, 1977, Sec. 1, at 33, col.
1 ............................................................................... 14
Regulations
Code of Federal Regulations, Title 3, Sec. 209(a)
(5 ) (1974) .............................................................. 38
Code of Federal Regulations, Title 3, Sec. 209(a)
(6 ) (1974) ........................................................... 38
Code of Federal Regulations, Title 41, Sec. 60-1.4
(1976) .................................................................. 3, 36
Code of Federal Regulations, Title 41, Sec. 60-2
(1976) .................................................................. 3, 36
Page
Cod
(
Cod
C
Cod
(1
Cod
(k
Cod
0
Cod
(
Cod
X
Cod
X
41
RuK
Uni:
Uni:
Unii
('
Uni:
f
Voti
Von
Page
r i s
uns,
976
...... 37
\fter
...... 30
ition
tion,
....... 11
Code of Federal Regulations, Title 41, Sec. 60-2.10
(1976) .................................................................... 36
Code of Federal Regulations, Title 41, Sec. 60-2.11
(1976) ...................................................................... 36
Code of Federal Regulations, Title 41, Sec. 60-2.12
( k ) ( l ) (1976) ....................................................... 37
Code of Federal Regulations, Title 41, Sec. 60-2.12
(k )(2 ) (1976) ....................... 37
Code of Federal Regulations, Title 41, Sec. 60-2.22
(a )(8 ) (1976) ....................................................... 38
Code of Federal Regulations, Title 41, Sec. 60-60
(1976) ................................................................. 3, 36
Code of Federal Regulations, Title 41, Sec. 60-60,
X II(B )(a ) (1976) ................................................. 37
Code of Federal Regulations, Title 41, Sec. 60-60,
XII(B) (c ) (1976) ................................................. 37
41 Federal Register 40343 (1976) ............................. 37
Rules
Rules of Supreme Court, Rule 42(2) ......................... 1
Statutes
United States Code, Title 42, Sec. 1981 ..............10, 22
United States Code, Title 42, Sec. 1983 ............22, 46
United States Code, Title 42, Sec. 2000d, et seq.
(Title VI) ................................................................ 46
United States Code, Title 42, Sec. 2000e, et seq.
(Title VII) .......................................... 3
Voting Rights Act of 1965, Sec. 4(a) ..................... 21
Voting Rights Act of 1965, Sec. 5 .............................. 20
xi.
Page
Xll.
Treatises and Articles Page
Bittker, B., The Case for Black Reparations (1973)
............................................................................... 31, 32
Dembitz, Racial Discrimination and the Military
Judgment, 45 Colum. L.Rev. 175 (1945) .......... 18
Kaplan, Equal Justice in an Unequal World, 61
Nw. L. Rev. 363 (1966) ...................................... 40
Lavinsky, A Moment of Truth on Racially Based
Admissions, 3 Hastings Const. L. Q. 879 (1977)
.................................................................................... 30
Lavinsky, DeFunis v. Odegaard: The “Non-Deci
sion” with a Message, 75 Colum. L. Rev. 520
(1975) .................................................................... 1 2
Novick & Ellis, Equal Opportunity in Educational
and Employment Selection, 32 American Psy
chologist 306 (1977) ............................................. 3 3
Orwell, G., Animal Farm, 168 (1946) ....................... 15
Posner, The DeFunis Case and the Constitutionality
of Preferential Treatment of Racial Minorities,
1974 S. Ct. Rev. 1 ..........................................12, 32
Rostow, The Japanese American Cases— A Dis
aster, 54 Yale L.J. 489 (1945) ................................ 18
Sandalow, Racial Preferences in Higher Education:
Political Responsibility and the Judicial Role,
42 U.Chi. L. Rev. 653 (1975) ............................ 13
Schlei, B. & P. Grossman, Employment Discrimina
tion Law (1976) ..................................................... 4 3
Seligman, How “Equal Opportunity” Turned Into
Employment Quotas, 87 Fortune 160 (1973) ..
.......................................................... ....................38, 39
Sowell, “Affirmative Action” Reconsidered, 41 The
Public Interest 47 (1975) ...................................... 38
T he Ri
A llan
Brief o
The
of Ame
professi
is a pr
commui
member
of comr
and ove
In on
of impc
such as:
in such
xThis
pursuant
are on fil
i r v
..krdl, 32
Page IN THE
Supreme Court of the United States
ilitary
.......... 18
d, 61
......... 40
Based
1977)
.......... 30
-Deci-
. 520
.......... 12
itional
i Psy-
.......... 33
.......... 15
mality
orities,
^ 2 , 32
\ L)is-
........... 18
October Term, 1977
No. 76-811
T he R egents of the University of California ,
Petitioners,
vs.
A lla n Bakke,
Respondent.
On Writ of Certiorari to the Supreme Court
of the State of California.
Brief of the Chamber of Commerce of the United States
of America Amicus Curiae.
INTEREST OF THE AMICUS CURIAE.1
The Chamber of Commerce of the United States
of America is the largest association of business and
professional organizations in the United States and
is a principal spokesman for the American business
community. The Chamber of Commerce has a direct
membership of more than 3700 state and local chambers
of commerce and professional and trade associations,
and over 65,000 business firms.
In order to represent its members’ views on questions
of importance to their vital interests and to provide
such assistance as it can to this Court’s deliberations
in such areas, the Chamber has frequently participated
1This brief is filed with the written consent of all parties
pursuant to Supreme Court Rule 42(2). Letters of consent
are on file with the Clerk of this Court.
cation:
Role,
.......... 13
imina-
........... 43
d Into
973) ..
...... 38, 39
41 The
............ 38
as amicus curiae before this Court in civil rights cases
which involve significant labor relations issues. E.g.,
General Electric Co. v. Gilbert, 429 U.S. 125 (1976);
McDonald v. Santa Fe Trail Transportation Co., 427
U.S. 273 (1976); Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976); Albermarle Paper Co.
v. Moody, 422 U.S. 405 (1975); and DeFunis v. Ode-
gaard, 416 U.S. 312 (1974).
Members of the Chamber are employers with a di
rect interest in the constitutional issue presented by
this case. The Chamber is vitally interested in the
development and implementation of programs and
policies designed to eliminate discriminatory prac
tices in employment. The Chamber has adopted the
following policy affirming its commitment to equal
employment opportunity:
The prevention of arbitrary discriminatory
practices in employment should be of vital concern
to every citizen. The National Chamber reaffirms
its strong support of all reasonable and necessary
steps designed to achieve the goal of equal employ
ment opportunity for all, and encourages private,
federal and state government action designed to
achieve that end.
“Governmental action should be carefully guided
by basic constitutional concepts to insure fairness
and due process of law for all the parties. Reverse
discrimination is the antithesis of equal employment
opportunity.”
This Court’s decision as to whether a state supported
professional school may allocate a specific number of
places in its entering class to minority applicants solely
on the basis of their race will be read carefully by
the lowei
unions fc
action pn
are anxio
because c
principle?
eral gov?
confrontc
antidiscri
criminath
e.g., TitI
amended
other ha
a conditi
local age
tion pro;
motion o.
statistical
Order N<
vised Or
§ 60-2 (I
§ 60-60
of a faih
“goals” a
the goal ;
and empl
action m
statutes.
431 (19'
a dilemm
and force
come intc
liability f
lation.
— 3—
ghts cases
^ E.g.,
N -9 7 6 ) ;
Co., A ll
.portation
'aper Co.
’s v. Ode-
vith a di-
-ented by
d in the
ams and
iry prac-
opted the
to equal
i minatory
il concern
reaffirms
necessary
'■L&mploy-
ivate,
signed to
Ily guided
e fairness
s . Reverse
nployment
supported
number of
ants solely
■refully by
the lower courts, government agencies, employers and
unions for guidance as to the validity of affirmative
action programs in employment. Employers require and
are anxiously awaiting guidance on this crucial question
because of the present uncertainty created by conflicting
principles simultaneously pursued by the state and fed
eral governments. On the one hand, employers are
confronted with a complex array of federal and state
antidiscrimination laws making illegal any racial dis
crimination or racial preference in employment. See,
e.g., Title VII of the Civil Rights Act of 1964, as
amended 42 U.S.C. § 2000e et seq. (1974). On the
other hand, many employers have been required as
a condition of doing business with federal, state and
local agencies to commit themselves to affirmative ac
tion programs to increase the employment and pro
motion of minorities and women according to prescribed
statistical representation formulae. See, e.g., Executive
Order No. 11246 and implementing regulations, Re
vised Order No. 4, 41 C.F.R. § 60-1.4, 41 C.F.R.
§ 60-2 (1976) and Revised Order No. 14, 41 C.F.R.
§ 60-60 (1976). The consequences to an employer
of a failure to reach such imposed affirmative action
“goals” are so severe, that employers inevitably treat
the goal as a quota and give preferences to applicants
and employees on the basis of their race or sex. Such
action may, of course, violate the antidiscrimination
statutes. Griggs v. Duke Power Co., 401 U.S. 424,
431 (1971). Employers thus are on the horns of
a dilemma: they may refuse to use quotas and goals
and forego valuable government contracts or they may
come into compliance and face the risks of back pay
liability for violations of Title VII and similar legis
lation.
It is the position of the Chamber that any kind
of racial classification including a numerical racial
quota or goal is so inimical to the fundamental and
overriding principle of nondiscrimination that it should
be imposed by government with extreme caution only
as a remedy for specific instances of proven past dis
crimination and then only when accompanied by safe
guards to insure that the remedy adversely affects the
employment opportunities of qualified nonminority per
sons only to the extent necessary to right the wrong.
STATEMENT OF THE CASE
Allan Bakke applied for admission to the University
of California at Davis Medical School in 1973 and
1974. He was denied admission in both years. In
each of these years Bakke was subjected to an intensely
competitive admission process for eighty-four of the
100 places in the entering class. The Medical School,
pursuant to faculty resolution, established a separate
admissions process for the remaining sixteen places
in the class. To be considered for one of the sixteen
segregated places an applicant had to be a member
of one of four designated racial and ethnic minorities.
Although the segregated section of the class is desig
nated as a “program to increase opportunities in medi
cal education for disadvantaged citizens,” the Univer
sity now candidly acknowledges that “ in practice” only
racial and ethnic minorities are considered and admitted
under the program. Brief for Petitioner at 5. Thus, there
is no question but that this case involves the intentional
use of a racial classification by the University in the
— 4 —
adr
is ;
ced
rati
rig*
to
shc
for
Ck
tio:
rig
by
gu;
0\Y
rac
p05
as ;
ma
cla-
recj
ma
wh;
aga
nec
the
5
off*.
kind
r^ a l
lSrnd
hould
t only
t dis-
safe-
ts the
y per-
rong.
administration of its admissions program. The result
is a segregated admission process: one admission pro
cedure and standard forjninorities and a wholly sepa
rate admission procedure encompassing a far more
rigorous standard for nonminorities.
SUMMARY OF ARGUMENT
I
The Constitution must be administered according
to neutral and objective principles. There are not, nor
should there be, segregated standards of judicial review
for white and black persons under the Equal Protection
Clause— a strict scrutiny standard to evaluate classifica
tions challenged by minority persons and a far less
rigorous standard to evaluate classifications challenged
by whites and nonspecified minority persons. The lan
guage of the Fourteenth Amendment and this Court’s
own cases require a single standard of review for
racial classifications. The lesser standard of review pro
posed here by Petitioner and Amici is unworkable
as a constitutional concept. It requires a court initially to
make a value-laden judgment as to whether a particular
classification helps or hurts the “favored” class. Next, it
requires the court to reference the race of the decision
maker and the applicable census reports to determine
whether the classification is imposed by a majority
against a minority. The threshold judicial evaluations
necessary under the proposed standard all but eliminate
the possibility of a neutral and objective standard.
Segregated standards of equal protection are no less
offensive to popular ideas of equality than separate
• ersity
3 and
rs. In
ensely
'f the
chool,
parate
nlaces
w Len
ember
irities.
desig-
medi-
Jniver-
” only
Imitted
;, there
ntional
in the
— 6—
ti<
P‘
rc
in
is
us
Cl
cc
in
e\
w
tli
th
fir
to
to
as
rel
ity
tin
Oil
str
me
sit}
bui
an
nee
not
restrooms, water fountains, or accommodations. The
only possible interpretation of the Equal Protection
Clause is that it demands equality of protection for
individual persons not equality between groups of per
sons. Racial classifications are “odious to a free people”
and must be shown to be necessary to the achievement
of a compelling government interest.
n
This is not a case in which the racial classification
benefits a favored group without impinging upon the
rights or expectations of others. The allocation of an
extremely scarce government resource on the basis of
race is by no means the equivalent of transferring
teachers or students to schools outside their neighbor
hood. Swann and its progeny are not within the ban
of the Equal Protection Clause. This case is wholly
different. The classification here operates as a denial
and is thus subject to the intense scrutiny of the
Fourteenth Amendment.
Apart from the wartime cases of Korematsu and
Hirabayashi, this Court has found only one government
interest to be sufficiently compelling to justify the use
of a racial classification. Courts have suffered the use
of race as the basis for formulating a remedy for
a specific instance or pattern of illegal or unconstitu
tional race discrimination by the institution against
which the remedy is ordered. Courts have treated even
such remedial uses with great suspicion and have care
fully circumscribed the limits of the remedies in order
to protect, as much as possible, the rights and expecta-
ns. The
y"~~tion
lion for
of per-
people”
evement
ification
pon the
n of an
basis of
isferring
icighbor-
the ban
wholly
a denial
of the
and
ernment
the use
’ the use
ledy for
iconstitu-
1 against
ted even
ave care-
in order
i expecta
tions of those innocent nonminority persons who must
personally bear the direct and immediate costs of the
remedy.
The requirement of a finding of specific past discrim
ination as a prerequisite to the use of a racial remedy
is the only logical and principled way to limit the
use of a racial classification so as t.o make such use
consistent with the Constitution. To sanction the con
cept pf past societal discrimination is to permit the
indiscriminate use of a disfavored classification when
ever a group can persuade a decision maker that it
was once the victim of discrimination. The result of
the adoption of such a concept will be to splinter
this nation into its component groups and to set each
group against other groups and individuals in a struggle
to gain an allocation. The limitation of racial remedies
to specific past' discrimination is wise policy as well
as sound constitutional law. Such a standard permits
relief for specific wrongs and yet insures that nonminor
ity persons suffer denials or deprivations only where
the circumstances are compelling.
The University may properly use racial classifications
only under limited circumstances where it has demon
strated that the classification is necessary to the achieve
ment of a compelling government interest. The Univer
sity has failed completely in its efforts to meet its
burden. It has offered after the fact justifications for
an imprudently adopted classification. The showing of
necessity rests only upon hypothesis and conjecture,
not experience. The single most salient fact in this
The (
I
s
(
(
P
The
to nei
which
of tlu
irapac
disma
and li
this C
deploi
fruits
race.
U.S.
(1967
Thi'
ficatio
States,
people
100 (I
Goss v
The C
of just
tions. "
to the
Loving
v. Flon
case is that the University has tried nothing else. The
Fourteenth Amendment at a minimum requires of a
racial classification that it be the last, and not the
first, resort of the state. The course adopted by the
esteemed court below imposes a burden on the Univer
sity to try other, less offensive means, to achieve its
ends. It is a sensible course of moderation and should
be endorsed by this Court.
Ill
The reservation of a specific number of places to
be filled only by persons of specified races or ethnic
backgrounds is properly denominated a quota. A racial
quota cannot withstand constitutional scrutiny under
any circumstances. A quota is the most arbitrary and
irrational of classifications. The quota in this case makes
race absolutely determinative of admission without con
sideration of relative qualifications or availability. A
quota implies a substantive right to a specified and
particular allocation to individuals of government re
sources and largesse based only upon the relative num
bers of persons of that group affiliation in the popu
lation at large. This quota cannot be saved by denomi
nating it a goal. A numerical racial goal, when backed
by the substantial coercive efforts of the state, inevitably
becomes a quota.
The goal of a nondiscriminatory society where bounty
and burden fall equally upon individuals, not races,
is universally revered— the only question in this case
is whether a most discredited means is justified as
a rational means to the end. It does not serve the
creation of an integrated nation for the government
to impel ever sharper and more meaningful conse
quences-of race.
The
r- me
y the
liver-
e its
lould
es to
•thnic
racial
under
and
nakes
con-
>y. A
and
it re-
num-
popu-
itably
ounty
races,
; case
ed as
e the
nment
conse-
ARGUMENT
I
The Constitution Commands a Single Standard for the
Evaluation of the Constitutionality of Racial Clas-
sifications Under the Equal Protection Clause of
the Fourteenth Amendment: All Racial Classifica
tions Are Properly Subject to Strict Scrutiny Which
Must Find Them to Be Necessary to the Achieve
ment of 'a Compelling Government Interest.
The Constitution must be administered according
to neutral and objective principles. The fourteen words
which make up the last phrase of the first section
of the Fourteenth Amendment have had a powerful
impact on American society. Those few words have
dismantled the massive edifice of a segregated society
and have, in part due to the continuing guidance of
this Court, educated a generation of Americans to
deplore as evil, policies which would distribute the
fruits and burdens of American life on the basis of
race. See, e.g., Brown v. Board of Education, 347
U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1
(1967); Lee v. Washington, 390 U.S. 333 (1968).
This Court has repeatedly insisted that racial classi
fications are “immediately suspect" Korematsu v. United
States, 323 U.S. 214, 216 (1944); “odious to a free
people” Hirabayashi v. United States, 320 U.S. 81,
100 (1943); and “obviously irrelevant and invidious”
Goss v. Board of Education, 373 U.S. 683, 687 (1963).
The Court has specified that a “very heavy burden
of justification” is necessary to sustain such classifica
tions. The classification must be shown to be necessary
to the accomplishment of a compelling state interest.
Loving v. Virginia, 388 U.S. 1, 9 (1967); McLaughlin
v. Florida, 379 U.S. 184 (1964).
— 10—
thi
bl;
ill;.
till
bk
Vc
Now Petitioner and Amici urge that the great prin
ciple of nondiscrimination embodied in the Equal Pro
tection Clause protects some persons more than others.
They argue from a majoritarian premise that when
a racial classification is “ benign” with respect to a
racial minority and discriminates only against a racial
majority it is properly subject to a lesser degree of
judicial scrutiny under the Fourteenth Amendment.
There is nothing in the language of the Amendment
itself which suggests the propriety of a double standard
for racial classifications. The Amendment quite plainly
bars a state from denying 'to “any person within its
jurisdiction the equal protection of the laws.”2 Nor
has there been any suggestion from this Court that
the command of the Fourteenth Amendment speaks
more softly when nonminorities are discriminated
against.3 In Yick Wo v. Hopkins, 118 U.S. 356
(1886) the Court spoke in unequivocal language:
2This Court has construed similarly worded statutes derived
from the same antidiscrimination principle as the Fourteenth
Amendment to protect white citizens from discrimination with
the same vigor as they protect black citizens. In McDonald
v. Santa Fe Trail Transportation Co., All U.S. 273 (1976),
this Court held that both Title VII of the Civil Rights Act
of 1964 and Section 1981 of Title 42 of the United States
Code encompass claims of discrimination by white persons as
well as claims by nonwhite persons. To be sure, this Court
emphasized it was not considering in that case the permissibility
of an affirmative action program, “whether judicially required
or otherwise prompted.” 427 U.S. at 280-81 n.8. The case
is cited here not as authority for the reserved question of
the ultimate validity of such programs, but rather for the
proposition that the Fourteenth Amendment requires a single
standard for the evaluation of racial classifications.
3Almost without exception, other courts which have con
sidered the question, including the court below, have applied
the same strict standard of review to classifications challenged
by nonminority persons as is used in reviewing classifications
(This footnote is continued on next page)
— 11—
pnn-
o-
rw»S.
when
to a
'acial
■e of
ment
idard
!ainly
:n its
Nor
that
teaks
nated
356
-'rived
teenth
w
s Act
States
■ns as
Court
sibility
quired
case
:on of
or the
single
con-
\pplied
'lenged
cations
“The Fourteenth Amendment to the Constitution
is not confined to the protection of citizens. It
says: ‘Nor shall any State deprive any person
of life, liberty or property without due process
of law, nor deny to any person within its juris
diction the equal protection of the laws.’ These
provisions are universal in their application, to
all persons within the territorial jurisdiction, with
out regard to any differences of race, of color,
or of nationality; and the equal protection of
the laws is a pledge of the protection of equal
laws.” Id. at 369 (emphasis added).
The proposed double standard for judicial review
of racial classifications under the Fourteenth Amend
ment is unsuitable as a constitutional concept. It would
require a court to reference the race of the decision
maker or the constituency from which it is drawn
to determine whether the classification involves a dis
crimination by the majority against a minority.4 * The
double standard would also require a value-laden judg
ment by members of the judiciary as to whether the
challenged by minority persons. See, e.g., Bakke v. Regents
of the University of California, 18 Cal. 3d 34, 53 P.2d 1152,
132 Cal. Rptr. 680 (1976); DeFunis v. Odegaard, 82 Wash.
2d 11, 507 P.2d 1169 (1973); vacated as moot, 416 U.S.
312 (1974); Harper v. Mayor of Baltimore, 359 F. Supp.
1187 (D. Md. 1973), modified on other grounds sub nom,
Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973). But see,
Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 348 N.E.
2d 537, 384 N.Y.S.2d 82 (1976).
4It would be an anomalous and unprincipled result for
the Equal Protection Clause to demand strict scrutiny for a
black preference which discriminates against whites in Wash
ington, D.C. (71.9% black) or Newark (54.2% black) but deny
the same scrutiny to a black preference in Los Angeles (17.9%
black). U.S. Bureau of the Census, Census of Population 1970,
Vol. 1, Characteristics of the Population, Parts 6, 10, 32.
fact
Sch'
mat
fror
acat
cisit
ease
use
tion
coni
The
here
was
stati
*S
cal
653
7T,
Poll i
that ;
ultimate impact of a racial classification is good or
bad with respect to a particular group.5
In addition, the internal logic of the majoritarian
premise of the double standard rests upon unsupportable
assumptions. It assumes that a white majority is homo
genous, rather than a conglomeration of persons of
differing ethnic and religious affiliations, many of whom
remain the objects of bigotry and prejudice to the
present day. The Supreme Court of New Jersey in
. finding a racial classification impermissible under New
Jersey statutes and the New Jersey Constitution soundly
rejected the majoritarian premise, stating: “We are a
state of minorities.” Lige v. Town of Montclair, 72
N.J. 5, 15, 367 A.2d 833, 843 (1976). See, Lavin-
sky, DeFunis v. Odegaard: The “Non-Decision” with
a Message, 75 Colum. L. Rev. '520, 527 (1975);
Posner, The DeFunis Case and the Constitutionality
of Preferential Treatment of Racial Minorities, 1974
S. Ct. Rev. 1, 25.
The majoritarian premise assumes that every decision
by government is subject to the will of the majority,
ignoring the isolation of many decision making bodies
from the majoritarian process. The decision to impose
the racial classification in this case was made by the 6
6It cannot be assumed that it will always be easy to deter
mine whether a racial classification is benign or malignant,
even as to a specified minority. See, e.g., Otero v. New York
City Housing Authority, 484 F.2d 1122 (2d Cir. 1973). Con
sider also, Professor Posner’s suggestion that a limitation on
the number of Jewish persons in the professions might assertedly
be benign, having the ameliorative purpose of decreasing anti-
Semitism. Posner, The DeFunis Case and. the Constitutionality
of Preferential Treatment of Racial Minorities, 1974 S. Ct.
Rev. 1, 20. Moreover, courts must also be wary that a classifi
cation benign as to one group may impact adversely on another
minority.
— 12—
t good or
ijufitarian
'ipportable
. is homo-
tersons of
v of whom
ce to the
Jersey in
nder New
>n soundly
We are a
itclair, 72
*e, Lavin-
don” with
1 (1975);
rationality
>ies, 1974
y decision
^ajo rity ,
oodies
to impose
;de by the
sy to deter-
r malignant,
. New York
!973). Con-
imitation on
ht assertedly
ceasing anti-
stitutionality
1974 S. Ct.
at a classifi-
on another
faculty of the University of California at Davis Medical
School. Decisions on educational policy are properly
made by such institutions and faculties arc properly free
from political pressures in accord with the principles of
academic freedom. Nevertheless, the isolation of the de
cision maker from the majoritarian process in this
case makes it imperative that courts scrutinize this
use of a racial classification most strictly.6 The ra
tionale underlying various doctrines of judicial restraint
contemplate judicial deference to legislative judgments.
The factual basis for such deference is entirely lacking
here where the decision to institute a racial classification
was not a product of the political processes of the
state legislature.7
- 1 3 -
9See, Sandalow, Racial Preferences in Higher Education: Politi
cal Responsibility and the Judicial Role, 42 U.Chi. L. Rev.
653 (1975):
“Nothing in the relationship of the faculty to the public
makes it likely that the faculty will learn whether a de
cision to grant preferences to certain racial or ethnic groups
imposes unduly heavy costs upon other groups in the
society or whether there are still other groups that might
plausibly lay claim to a similar preference. Of course, law
faculties are not wholly insulated from outside pressures,
but their processes of decision are a good deal less likely
than those of legislatures to elicit such information. Facul
ties are, moreover, less constrained than legislatures by the
need to obtain public consent for their actions, creating a
danger that the choices they make will depart too widely
from the values of the larger society. This danger is en
hanced by the fact that, for all their diversity, faculties are
relatively insular communities, subject to distinctive pres
sures and a tendency to form distinctive outlooks upon
issues. Encompassing less diversity than the larger popula
tion, they are relatively more prone to fall victim to those
enthusiasms and waves of passion that befall small groups
and justify lodging decision-making authority in larger
groups.” Id. at 696 (citations omitted).
7To the extent that polls reflect majority will, the Gallup
Poll taken between March 25th and March 28th, 1977 reveals
that a striking majority of Americans (86% of white respondents
(This footnote is continued on next page)
sta
to
wn
up
pri
arc
scr
les
Th
str;
is i
Tin
(
one
peri
OCCi
the
cl as
non
pen-
sen
Adoption of the standard of review urged by Petition
er in this case based upon the majoritarian premise
would amount to rejection of the idea that constitutional
rights are personal rights. Such a holding would in
fact submerge the rights of Allan Bakke to the claimed
needs of unidentified individuals, none of whom have
shown they were wronged, solely on the basis of their
membership in favored groups. This Court has never
endorsed the concept of group rights; to the contrary,
the Court has scrupulously adhered to the doctrine
that constitutional rights, in particular Fourteenth
Amendment protections, are personal rights:
“The rights created by the first section of the
Fourteenth Amendment are, by its terms, guaran
teed to the individual. The rights established are
personal rights. It is, therefore, no answer to these
petitioners to say that the courts may also be
induced to deny white persons rights of ownership
and occupancy on grounds of race or color. Equal
protection of the laws is not achieved through
indiscriminate imposition of inequalities.” Shelley
v. Kraemer, 334 U.S. 1, 22 (1948) (emphasis
added).
See also, Missouri ex rel. Gaines v. Canada, 305 U.S.
337, 351 (1938); Sweatt v. Painter, 339 U.S. 629,
635 (1950).
Most fundamentally, the notion of a segregated equal
protection standard embodied in separate ideas of black
equality and white equality does violence to the most
basic perceptions of fairness in our society. Segregated
and 64% of nonwhite respondents) reject the notion of prefer
ential treatment on the basis of race or sex in selecting persons
for employment and places in college. Los Angeles Times,
May 1, 1977, § 1, at 9, col. 3; New York Times, May 1, 1977,
§ 1, at 33, col. 1.
— 14—
tition-
nse
_ial
ild in
aimed
i have
f their
never
itrary,
'ctrine
teenth
of the
taran-
•d are
> these
so be
ership
Equal
rough
lielley
is
U.S.
629,
1 equal
' black
: most
esated
- 1 5 -
standards of equal protection are no less offensive
to popular ideas of equality than separate restrooms,
water fountains or accommodations. The idea conjures
up the Orwellian spectre of Animal Farm where the
principle of equality became perverted into “ All . . .
are equal, but some . . . are more equal than others.”s
The proper standard of review in this case is strict
scrutiny. Any suggestion of the appropriateness of a
lesser standard here must be unequivocally rejected.
The classification must fall unless the University demon
strates that it is justified by a compelling interest and
is necessary to the achievement of that interest.
II
The Racial Classification Embodied in the Task Force
Program at the Medical School of the University
of California Violates the Equal Protection Clause
of the Fourteenth Amendment Because It Is Not
Necessary to the Achievement of a Compelling
Government Interest.
A. The Racial Classification Herein Works a Deprivation Upon
Individuals and Falls Within the Purview of the Equal
Protection Clause.
Only one hundred students may be admitted in any
one year to the Medical School. The racial classification
permits specified racial and ethnic minority students to
occupy a certain number of seats in the class. Because
the absolute number of places is limited, the racial
classification operates as a denial of opportunity to
nonminority persons— specifically it denies nonminority
persons the opportunity to be considered for the re
served places in the entering class. Since this racial
8G. Orwell, Animal Farm, 168 (1946).
prefer-
persons
Times,
•, 1977,
h
Si
b
h
4
d
The
whites
gated
these
and et
ity. TI
protec
scrutir
The
and A
case v
rather
of the
426 U
v. Met
argum
of the
to disc
ment c
gard o
nation<
onymo
classification works a deprivation upon individuals it
comes within the limitations of the Equal Protection
Clause cases. This is not a case like Katzenbach v. Mor
gan, a 384 U.S. 641 (1966) or Lau v. Nichols,10
414 U.S. 563 (1974) where the impact of the racial
classification upon nonminority persons is neither to
burden nor to deny. Those cases are not questionable
under the Equal Protection Clause.
The dicta in Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1, 16 (1971), relied on by
Petitioner and Amici, is similarly inapposite. There
the Court suggested that a school board for educational
reasons might constitutionally choose to assign its stu
dents to schools by race in order to achieve a specific
ratio of black to white children in each school. The
result suggested by the Swann dicta is far different
from the result of the University’s racial classification
herein. The Swann dicta deprives no child of an educa
tion nor does it result in a denial of a right or oppor
tunity to any person. The burdens and benefits of
integration fall evenly on children of all races." As
Justice Douglas declared in the DeFunis case:
“ [T]here is a crucial difference between the policy
suggested in Swann and that under consideration
9Katzenbach v. Morgan held that a law extending the fran
chise to some Spanish-speaking persons was not a denial of equal
protection. M
inLau v. Nichols held that a school district was obliged under
Title VI of the Civil Rights Act of 1964 to provide language
instruction to non-English speaking Chinese children.
"The faculty integration cases relied on by Petitioner are
similarly distinguishable. E.g. United States v. Montgomerv
County Board of Education, 395 U.S. 225 (1969). No teacher
has a right to teach in a particular school nor to teach children
of a single race. A teacher transfer to promote integration in
volves no deprivation and thus constitutes no denial of equal
protection.
12This
of the
1964 Si
introduc
the reco;
— 16—
- 17—
iduals it
olection
\ Aor-
■ ichols,10
i c racial
ither to
tionable
g Board
1 on by
. There
cational
its stu-
specific
ol. The
lifferent
dication
i educa-
oppor-
:fits of
:s.” As
•
: policy
ieration
the fran-
of equal
ed under
language
oner are
n tg om erv
’ teacher
children
ation in-
of equal
here: the Swann policy would impinge on no per
son’s constitutional rights, because no one would
be excluded from a public school and no one
has a right to attend a segregated public school.”
416 U.S. 312, 336 n. 18 (1974) (Douglas, J„
dissenting).
The racial classification in this case flatly denies
whites and nonspecified minorities access to the segre
gated places in the entering class in order to make
these places available to members of specified racial
and ethnic groups solely because of their race or ethnic
ity. Thus this classification constitutes a denial of equal
protection unless it is properly justified under strict
scrutiny.
The argument is made in various forms by Petitioner
and Amici that the intent of the University in this
case was only to prefer a class of minority persons
rather than invidiously to discriminate against members
of the Caucasian race, citing Washington v. Davis,
426 U.S. 229 (1976) and Village of Arlington Heights
v. Metro. Housing Corp., 97 S.Ct. 555 (1977). This
argument, however, would unduly restrict the meaning
of the word “discriminate” . According to one definition,
to discriminate means “to make a difference in treat
ment or favor on a class or categorical basis in disre
gard of individual merit,”12 Webster’s Third New Inter
national Dictionary, 648 (1961). Invidious is not syn
onymous with hostile; rather it is a term representing
12This definition of discrimination is consistent with the use
of the word in the Civil Rights Act of 1964. On April 8
1964 Senators Clark and Case, floor managers for H.R. 7152*
introduced an interpretative memorandum ~on Title VII into
the record which provided in pertinent part:
(This footnote is continued on next page)
ment
insta!
discri
Sp
cial c
resul
Char
1, 2t
to b
const
Boar
T1
tion
a sit
as a
re me
has
reme
derm
woul
of St
Meet-
In A
(197
whicl
Detn
seller
tion,
and i
callin
in Pt
427 l
once
a legal conclusion. An intentional discrimination
on the basis of race is “ invidious” if it results in
a deprivation and cannot be justified by a compelling
government interest. In this case, as in the case of
Marco DeFunis, the classification “is certainly not be
nign with respect to nonminority students who are
displaced by it.” DeFunis v. Odegaard, 82 Wash. 2d
11, 32, 507 P.2d 1169, 1182 (1973), vacated as
moot, 416 U.S. 312 (1974). The difference in treatment
in this case was intentional and operates to deny a
benefit to persons on the basis of their race— thus
it is unlawful discrimination, absent a compelling justi
fication.
B. The Only Compelling Government Interest Which Properly
Justifies the Use of 3 Rocisl Classification Is the Necessity
to Remedy Specific Past Racial Discrimination by the In
stitution Using the Classification; Such a Compelling Interest
Is Not Present in This Case.
Since the wartime emergency cases of Korematsu
v. United States, 323 U.S. 214 (1944), and Hirabay-
ashi v. United States, 320 U.S. 81 (1943),13 this
Court has suggested only one interest compelling enough
to justify the use of a racial classification— the govern-
“ It has been suggested that the concept of discrimination
is vague. In fact it is clear and simple and has no hidden
meanings. To discriminate is to make a distinction, to
make a difference in treatment or favor. ” 110 Cone
Rec. 7213 (1964). b'
13Korematsu (exclusion from West Coast areas) and Hirabay-
ashi (curfew order) upheld wartime restrictions upon Japanese-
Americans on the grounds of military necessity. The cases
have been severely criticized by most commentators. See
generally, Rostow, The Japanese American Cases— A Disaster,
54 Yale L.J. 489 (1945); Dembitz, Racial Discrimination and
the Military Judgment, 45 Colum. L.Rev. 175 (1945).
— 18—
ment’s interest in redressing the effects of an identified
instance or pattern of illegal or unconstitutional racial
discrimination.
Specifically, this Court has sanctioned the use of ra
cial classifications to dismantle the dual school systems
resulting from past de jure segregation. In Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S.
1, 25 (1971) the Court declared racial classifications
to be useful “ in shaping a remedy to correct past
constitutional violations.” See also, North Carolina State
Board of Education v. Swann, 402 U.S. 43 (1971).
The school desegregation cases represent both a situa
tion where there is no denial of benefit or right and
a situation where a racial classification is justified
as a necessary device for the compelling interest of
remedying a specific constitutional wrong. The Court
has insisted, however, even in these cases, that the
remedy ordered may not exceed the scope of the wrong
demonstrated: “Absent a constitutional violation, there
would be no basis for judicially ordering assignment
of students on a racial basis.” Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. at 28.
In Milliken v. Bradley (Milliken I) 418 U.S. 717
(1974), the Court struck down a desegregation order
which directed an interdistrict remedy for the entire
Detroit metropolitan area after a finding that the Detroit
school board had pursued a deliberate course of segrega
tion, reasoning that “without an interdistrict violation
and interdistrict effect, there is no constitutional wrong
calling for an interdistrict remedy.” Id. at 745. Similarly,
in Pasadena City Board of Education v. Spangler,
427 U.S. 424, 436-437 (1976), the Court insisted that
once a constitutional violation was remedied by the
— 19—
i nation
in
'b—hng
-ase of
not be-
ho are
ish. 2d
ited as
atment
deny a
'— thus
g justi-
Properly
Necessity
the In-
: Interest
ematsu
'irabay-
^ I 'h is
enough
govern-
mination
o hidden
rtion, to
10 Cong.
Hirabay-
lapanese-
he cases
irs. See
Disaster,
■tion and
- 2 0 -
implementation of a racially neutral attendance policy,
the power of a federal court to order a racial remedy
was ended.
In another remedial context, this Court has permitted
the use of a racially based award of retroactive seniority
under Title VII when made to identifiable black victims
of proven employment discrimination. Franks v. Bow
man Transportation Co., 424 U.S. 747 (1976). The
racial remedy permitted there was firmly limited to
those persons who demonstrated that they were victims
of prior discrimination. See also, International Brother
hood of Teamsters v. United States, 45 U.S.L.W. 4506,
4516-18 (May 31, 1977). Cf. Griggs v. Duke Power
Co., 401 U.S. 424,430-31 (1971).
The restrictions upon the scope of the permissible
remedies for constitutional and statutory violations
recognized in the school desegregation cases and in
Franks and Teamsters mandates that the only interest
compelling enough to justify the use of a racial clas
sification is the interest in remedying a specific finding
of past discrimination by a particular institution.
The case of United Jewish Organizations of Williams-
burgh, Inc. v. Carey, 97 S. Ct. 996 (1977) is not
contra. There the Court permitted the State of New
York to use racial criteria in an apportionment plan
adopted pursuant to Section 5 of the Voting Rights
Act of 1965, despite a claim that the racial criteria
had the effect of diluting the voting strength of a
white ethnic and religious minority enclave. A majority
of this Court concluded that the use of the racial
classification to secure the approval of the Attorney
General to a reapportionment plan under the Voting
Rights Act of 1965 did not violate the Fourteenth
-21-
- policy,
I /-m edy
ermitted
seniority
; victims
v. Bow-
6). The
nited to
• victims
Brother
'll. 4506,
c Power
rmissible
iolations
and in
interest
ial clas-
: finding
\ams-
) is not
of New
ent plan
g Rights
criteria
!th of a
majority
he racial
Attorney
e Voting
rurteenth
or Fifteenth Amendments given the broadly remedial
purposes of the Act.
Despite the fact that there was no finding of prior
discrimination in districting or apportionment in the
area concerned, the case is within the line of authority
permitting racial classifications to remedy specific past
discrimination. This Court has recognized that the Vot
ing Rights Act is a last-resort type of remedy for
racial discrimination in voting, adopted as a direct
result of Congressional frustration with the “unremitting
and ingenious defiance of the Constitution” by the
states. See South Carolina v. Katzenbach, 383 U.S.
301, 309 (1966). As a result the statute establishes
a presumption of discrimination from the presence of
certain conditions often correlated with racial discrim
ination in voting. The statutory indicia were present
in the area of New York covered by the challenged
apportionment. The state tried and failed to rebut
the presumption of discrimination pursuant to Section
4(a) of the Act in a declaratory judgment action
brought in the district court for the District of Colum
bia. The district court denied the exemption and this
Court summarily affirmed. New York on Behalf of
New York County v. United States, 419 U.S. 888
(1974). Thus, although there was no specific showing
of past racial discrimination in apportionment, the pres
ence of the statutory indicia and the failure to secure
exemption under Section 4(a) is the functional equiva
lent of a finding of past discrimination for which
a racial classification is appropriate and constitutional
ly tolerable.
Thus in each case since Korematsu and Hirabayashi,
where this Court has approved a racial classification,
it has done so in the context of formulating a remedy
43
*:
’I
l-
— 22—
for an identified statutory or constitutional violation.14
In no case has this Court condoned the use of a
racial remedy where it is not related to the elimination
of a specific instance or pattern of illegal or unconstitu
tional discrimination.
Most federal courts of appeal and federal district
courts have permitted the use of mandatory racial
and ethnic classifications only as a remedy for specific
and serious violations of the antidiscrimination provi
sions of Title VII, and Sections 1981 and 1983 of
Title 42 of the United States Code.15 Courts, more
over, have been loath to approve such remedies and
have imposed strict limits upon their use, requiring a
“compelling necessity” for the classification. See, e.g.,
Patterson v. American Tobacco Co., 535 F.2d 257,
274 (4th Cir.), cert, denied, 429 U.S. 920 (1976).
In a number of cases, the necessity for the remedy
has been shown by the extreme intransigence of an
XiMorton v. Mancari, 417 U.S. 535 (1974) is cited by
Petitioner and various Amici as a case where this Court upheld
a racial preference which operated to deny employment oppor
tunities to white employees in the Bureau of Indian Affairs.
However, the Court took pains in that case to deny that
the challenged preference was based on race. The Court con
sidered the classification to be political rather than racial, because
it extended the employment preference to only those native
Americans who were members of “federally recognized’’ tribes.
Id. at 553-54 and n.24. Moreover, the Court emphasized the
importance of the tie between the preferred Indians and the
fulfillment of Congress’ unique obligation toward the Indians
implicit in the “ guardian-ward relationship.” Id. at 551. The
Mancari case was described by this Court as sui generis
and provides no authority for the broad issue presented in
this case.
xsSee, e.g., Boston Chapter, NAACP, Inc. v. Beecher, 504
F.2d 1017 (1st Cir. 1974), cert, denied sub nom., Director
of Civil Service v. Boston Chapter NAACP, Inc, 421 U.S.
910 (1975); Rios v. Enterprise Ass’n, Steamfitters Local 638,
(This footnote is continued on next page)
institution
See, e.g.,
Cir.), cei
v. Crisler
419 U.S.
614 (5th (
Lackin;
proven di
racial reir
1134 (4th
F. Supp.
Mississipp
126, 146
in part r
1976) ; O
395 F. Su
In a f.
the use of
action pn
of prior
General
Altshuler,
416 U.S.
v. Ogilvic.
Ass'it of
442 F.2d
(1971). I
501 F.2d 6
Local 86, -:
984 (1971
634 (6th C
Cir.), cert.
Internationa
1012 (3d (
(8th Cir.), c
al violation.14
i^ u se of a
i>wiimination
>r unconstitu-
deral district
datory racial
y-for specific
nation provi-
and 1983 of
'ourts, more-
remedies and
, requiring a
on. See, e.g.,
■5 F.2d 257,
1976).
r the remedy
igence of an
-) is cited by
is Court upheld
gent oppor-
H ,n Affairs,
deny that
The Court con-
i racial, because
!y those native
ognized” tribes,
emphasized the
ndians and the
ird the Indians
I. at 551. The
as sui generis
ue presented in
v. Beecher, 504
nom., Director
Inc, 421 U.S.
:ters Local 638,
age)
institution in remedying discrimination by other means.
See, e.g., Carter v. Gallagher, 452 F.2d 315 (8th
Cir.), cert, denied, 406 U.S. 950 (1972); Morrow
v. Crisler, 491 F.2d 1053 (5th Cir.), cert, denied,
419 U.S. 895 (1974); NAACP v. Allen, 493 F.2d
614 (5th Cir. 1974).
Lacking a showing of necessity even in cases of
proven discrimination, courts have declined to permit
racial remedies. See, e.g., Harper v. Kloster, 486 F.2d
1134 (4th Cir. 1973); Pennsylvania v. Glickman, 370
F. Supp. 724, 736-37 (W.D. Pa. 1974); Wade v.
Mississippi Cooperative Extension Service, 372 F. Supp.
126, 146-47 (N.D. Miss. 1974), aff’d in part, rev'd
in part on other grounds, 528 F.2d 508 (5th Cir.
1976); Officers for Justice v. Civil Service Commission,
395 F. Supp. 378, 387 (N.D. Cal. 1975).
In a few cases, courts of appeal have sustained
the use of racial classifications embodied in affirmative
action programs where there was no judicial finding
of prior illegal discrimination. See, e.g., Associated
General Contractors of Massachusetts, Inc. v.
Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, denied,
416 U.S. 957 (1974); Southern Illinois Builders AssJn
v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); Contractors
Ass’n of Eastern Pennsylvania v. Secretary of Labor,
442 F.2d 159 (3d Cir.). cert, denied, 404 U.S. 854
(1971). In each of these cases, however, there was
- 2 3 -
501 F.2d 622 (2d Cir. 1974); United States v. Iron Workers
Local 86, 443 F.2d 544 (9th Cir.), cert, denied, 404 U.S.
984 (1971); United States v. Local 212 IBEW, 472 F.2d
634 (6th Cir. 1973); Morrow v. Crisler, 491 F.2d 1053 (5th
Cir.), cert, denied 419 U.S. 895 (1974); United States v.
International Union of Elevator Const. Local No. 5, 538 F.2d
1012 (3d Cir. 1976); Carter v. Gallagher, 452 F.2d 315
(8th Cir.), cert, denied, 406 U.S. 950 (1972).
I
u
&
i
&
*»
— 24—
a strong and unquestioned pattern of racial discrimina
tion by the unions from which the contractors hired.
For example, in Associated General Contractors the
court stated: “It is undisputed that past racial discrim
ination in Boston’s construction trades is in large part
responsible for the present racial imbalance.” 490 F.2d
at 21. The Southern Illinois court specifically found
that the Ogilvie Plan attempted to eliminate past dis
crimination by the construction unions in the area.
471 F.2d at 686. In most of these cases, there was as
well a specific finding that the program would result in
no harm to nonminorities. In Contractors Ass’n of
Eastern Pennsylvania, for example, the court specified
that the contractors could commit themselves to specific
employment goals “without adverse impact on the exist
ing labor force.” 442 F.2d at 173.
In each of the cases where courts have mandated
or approved racial remedies, they have done so upon
a showing of past racial discrimination by the party
against which the remedy is imposed. The requirement
of a finding of past racial discrimination as a pre
requisite to the imposition of a racial classification
serves an important policy purpose. The requirement
limits the use of a racial classification to that necessary
to right a specific and identifiable wrong, defining
the scope of the wrong and the appropriate remedy. So
limited and defined, the remedy protects, as much
as is possible, the rights and expectations of innocent
nonminority persons who must bear the direct costs of
the remedy.
The University would have this Court abandon the
wisdom of this policy and permit it to justify the
racial classification at the Medical School as necessary
to remedy past discrimination by society in general
against
no cas
classifi
tion. 1
be to a
by equ
an unv
doctrin
ination
fied gr
and in
or rac
have a
discrin
to con
to bal
conten
agains:
Soci
classifi
a dim
propri;
of thei
past d
judicia
1RSec.
Supp. I
General
Fekete
1970) (
Inc., 7 1
Slamon
(D.C. r
ness Mir
Egyptian
Cases 2'
Cases 31
against the groups favored by the classification. In
no case has a court validated the use of a racial
classification as a remedy for nonspecific discrimina
tion. The course advocated by the University would
be to abandon all protection for nonminorities afforded
by equal protection and due process. It would substitute
an unworkable concept for a principled constitutional
doctrine of remedy. The proposed past societal discrim
ination precept is one which will vary, even for identi
fied groups, from place to place, from time to time,
and in degree. There is scarcely a religious, ethnic
or racial group in the United States which does not
have a colorable claim that it was the object of societal
discrimination.10 There is simply no principled way
to compare or evaluate relative discrimination so as
to balance the rights of those persons who are not
content to rest their expectations upon group claims
against those making group entitlement claims.
Societal discrimination as justification for a racial
classification granting preference will inevitably foster
a climate in which groups will compete for an ap
propriate allocation of scarce resources on the basis
of their relative histories of past discrimination. Specific
past discrimination is a workable constitutional and
judicial concept. Societal discrimination cannot serve
— 2 5 —
uSee, e.g., Lucido v. Cravalh, Swaine and Moore, 425 F.
Supp. 123 (S.D.N.Y. 1977). (Italian, Catholic); Marlowe v.
General Motors Corp., 489 F.2d 1057 (6th Cir. 1973) (Jewish);
Fekete v. United States Steel Corp., 424 F.2d 331 (3rd Cir.
1970) (Hungarian ancestry); Esponilla v. Trans-World Airlines,
Inc., 7 FEP Cases 1102 (N.D. Cal. 1974) (Filipino ancestry);
Slamon v. Westinghouse Electric Corp., 8 FEP Cases 1325
(D.C. Pa. 1974) (Catholic); Bradington v. International Busi
ness Machines Corp., 5 FEP Cases 1123 (D. Md. 1973) (Arab,
Esvptian and Moslem); EEOC Dec. CL 68-12-431FU, 2 FFP
Cases 295 (1969) (Polish); and EEOC Dec. 70-312. 2 FEP
Cases 309 (1969) (German and Norwegian ancestry).
crimina-
:>*—hired.
A rt the
discrim-
■rge part
190 F.2d
ly found
past dis-
he area,
e was as
result in
Hs.y’rc o f
specified
i specific
the exist-
landated
so upon
he party
uirement
s a pre-
Jj t̂tion
i l a m e n t
necessary
defining
medy. So
as much
innocent
: costs of
ndon the
istify the
necessary
t general
the same function because such a concept requires
resolution by the political processes. Clashing group
claims must seek balance in the political arenas and
the result is a loss of the constitutional values of
equal protection and due process for individuals.
Racial remedies are strong medicine, appropriate only
to redress a specified evil. Racial remedies are not
permissible absent the restraints of a finding of specific
past discrimination. The Medical School faculty in this
case- instituted the racial classification wholly in the
absence of any finding or inference of past racial
discrimination by the school. Indeed, it is highly improb
able that such a showing could be made since the
doors to the school opened only one year before the
program was adopted. The racial classification used
at the Medical School is not designed 'to give relief
to actual victims of illegal or unconstitutional racial
discrimination. Thus there is no compelling interest
justifying the use of this racial classification.
C. None of the Interests Asserted by the University to Be
Furthered by This Racial Classification Have Been Shown
to Be Both Compelling and Necessary.
The University has postulated a number of govern
ment interests which are assertedly compelling enough
to justify the racial classification used at the Medical
School. Most of these interests have been postulated
as rationales only in the course of this lawsuit. The
statement of the program in the record (Exhibits 1
and 2 to Deposition of George H. Lowrey, M.D.,
R. at 195-96) indicate the program is one “to increase
opportunities in medical education for disadvantaged
citizens.” The effort by the University to demonstrate
compelling government interests other than that stated
in the record is entirely after the fact. The Medical
— 26—
Schoo
“disad
racial
white
progr;
vantu;
has pi
of int
evidei
adopli
now ;
to hv|
requii
See, •
(197;
u .s .
u .s .
Co.,
Balia;
nan,.
Me
to bi.
the l
tional
cal S
this i
comp
lent c
specif
not n
policy
or etli
of til.
acted:
quires
P'-'iip
and
les of
e only
re- not
pecific
in this
in the
racial
nprob-
;e the
re the
i used
relief
racial
nterest
School transformed its constitutional classification of
“disadvantaged citizens” into a constitutionally suspect
racial classification without articulating its reasons. No
white or nonspecified minority was considered for the
program however educationally or economically disad
vantaged. Now in the face of this lawsuit the University
has produced a monumental tome asserting a plethora
of interests all asserted to be compelling. There is no
evidence that the faculty of the Medical School who
adopted the program considered or evaluated the goals
now asserted. In recent years this Court has refused
to hypothesize conceivable state purposes for legislation,
requiring instead a “ legitimate, articulated purpose.”
See, e.g., McGinnis v. Royster, 410 U.S. 263, 270
(1973) (emphasis added); Eisenstadt v. Baird, 405
U.S. 438, 443 (1972). Cf. James v. Strange, 407
U.S. 128 (1972); Weber v. Aetna Casualty and Surety
Co., 406 U.S. 164 (1972). See also, Schlesinger v.
Ballard, 419 U.S. 498, 511-12 and n.l (1975) (Bren
nan, J., dissenting).
Moreover, the interests asserted cannot be shown
to be both compelling and necessary. For example,
the University asserts that there is a compelling educa
tional interest in providing for diversity within the Medi
cal School. One might legitimately question whether
this interest, albeit important, rises to the level of
compelling. It would not seem to be the moral equiva
lent of a wartime emergency or the need to redress
specific instances of racial discrimination. Yet it is
not necessary to debate this fine point of educational
policy for the University cannot demonstrate that race
or ethnicity is usefully correlated with the achievement
of that goal. Surely factors other than physical char
acteristics such as skin color have the educational value
to Be
overn-
mough
Iedical
tulated
t. The
libits 1
M.D.,
ncrease
tntaged
mstrate
t stated
VIedical
— 27—
— 28—
claimed by the University. Different backgrounds and
life experiences produce persons with different values,
aspirations and concerns who may contribute to the
quality of education at the school. However, none
of these factors are strictly related to race. Clearly,
the University may constitutionally seek persons with
differing backgrounds and experiences, without selecting
persons solely by reference to their race or ethnic
background. Diversity leading to enhancement of the
educational experience as a government interest then
cannot save this classification.
A second interest asserted as compelling is the urgent
need to provide medical services to underserved minor
ity communities. However, it should immediately be
apparent that to recognize this need is not to demand
a racial standard for admission to medical school. Medi
cal needs can be served by doctors of all races and
ethnic backgrounds. Race is almost irrelevant to this
important interest. It is mere conjecture to conclude
that only black doctors will have an interest in or be
motivated to serve the medical needs of black persons.
It has not been shown that only Chicano persons can
serve Spanish-speaking people. The notion that black
teachers cannot adequately teach white students or that
white teachers cannot teach black students has been un
equivocally rejected. Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. at 19. United States v.
Montgomery Board of Education, 395 U.S. 225
(1969); Bradley v. School Board, 382 U.S. 103
(1965).
Nor is a racial or ethnic preference a precisely
tailored means of reaching the need for medical care
in the ghettos and barrios. There is no certainty that
black or Asian or Chicano doctors choose in substantial
numbers to serve the needs of their corresponding
races. It has been strongly and properly questioned
whether it is even a permissible goal for the state
to attempt to produce black doctors for black persons.
DeFunis v. Odegaard, 416 U.S. at 342 (Douglas, J., dis
senting).
The military services have had success in meeting
their needs for medical personnel through the solicita
tion of agreements to serve for a specified period
of time in exchange for financial assistance. A similar
program could be established to help meet the need
of minority persons for medical services. In providing
inexpensive medical education, the state is distributing
an extremely valuable commodity to individual mem
bers of society. A state may, consistent with the Consti
tution, condition its distribution of the benefit upon a
commitment by a minority or nonminority applicant
to serve in needy areas for a specified period of time.
To the extent that Petitioner’s assumptions are borne
out, black students and other minority and nonminority
students may choose htis alternative and thereby secure
admission to medical school resulting in the provision
of medical services to those the state believes are most
in need of them. But such a program would not violate
other important constitutional values by distributing
benefits solely on a racial basis. The compelling need
for doctors to serve the medical needs of minority
persons thus cannot justify the use of a racial classifi
cation in the admissions process.
The University claims the racial classification is justi
fied by the need to provide racial and ethnic role
models to young minority students and by the goal
of integrating the medical profession. However, the
'ds and
^ u es ,
w the
none
Clearly,
ns with
electing
ethnic
of the
st then
urgent
minor-
tely be
demand
I. Medi-
:es and
to this
onclude
i or be
persons.
^k?an
^olack
or that
een un-
lenburg
dates v.
S. 225
S. 103
precisely
cal care
inty that
test of constitutionality of racial classifications demands
more than an important purpose. The test demands
that there be a strong congruence between the end
chosen and the racial means adopted to promote the
end. In Dunn v. Blumstein, 405 U.S. 330 (1972), this
Court specified with reference to suspect classifications:
“ [I]f there are other, reasonable ways to achieve
those goals with a lesser burden on constitutionally
protected activity, a State may not choose the
way of greater interference. If it acts at all, it
must choose ‘less drastic means.’ ” Id. at 343.
Under this standard, the University’s efforts fall far
short of demonstrating that the asserted goals could
not be met by less onerous alternatives. The court
below suggested several alternatives, all of which are
castigated by Petitioner and Amici as hopelessly in
adequate and unrealistic. However, the simple fact is
that the University in this instance has tried nothing
else.1''
The Constitution does not command that the Uni
versity use entrance examinations which do not ade
quately measure or predict the qualifications of persons
not within the majoritarian culture. If some factors
in the makeup of disadvantaged persons are not ade- 17
- 3 0 -
17Nor have other institutions tried non-suspect alternatives.
For example, it was only after the decision below that there
was a serious effort made at a major California law school
to “begin to discover the state of the art on constitutionally
safe approaches to special admissions programs.” Report on
Special Admissions at Boalt Hall After Bakke, 1 (1976). The
report reveals that contacts with forty law schools requesting
their experience with non-racially based disadvantaged programs
resulted in the conclusion that “ there is no real body of experi
ence in dealing with a disadvantagement approach to special
admissions.” Id. at 8. See, Lavinsky, A Moment of Truth
on Racially Based Admissions, 3 Hastings Const. L. Q. 879
(1977).
quately
other fac
in the C
recognitii
tional an
barred f:
disadvani
to compi.
Milliken
4879 (Ji
563 (19'
lems win
in the adi
A rem<
School d
izens, ad
constituti
test that .
It is alk
definition
miliar on
convenin'
ment is
Asian th;
persons c
‘ "Of coi
always so s
groups. Th
particularly
pearance, si
cases, even
See. B. Bitt
It appear
ethnicity foi
made in nu
selves who i
mands
ir^nds
md
te the
), this
itions:
■chieve
;onally
se the
all, it
U3.
all far
could
court
ch are
4y in
fact is
•othing
c Uni-
>^^de-
™ n s
factors
it ade-
rnatives.
at there
■ school
utionally
port on
6). The
questing
irograms
f experi-
> special
>/ Truth
Q. 879
quately evaluated by traditional procedures, then
other factors may and should be considered. Nothing
in the Constitution bars the University from giving
recognition to special achievements in the face of educa
tional and economic hardships. The University is not
barred from establishing remedial programs to assist
disadvantaged students in acquiring the skills necessary
to compete effectively with nonminority students. Cf.
Milliken v. Bradley, ( Milliken II) 45 U.S.L.W. 4873,
4879 (June 27, 1977); Lau v. Nichols, 414 U.S.
563 (1974). However, there is nothing in these prob
lems which suggests or compels a racial classification
in the admissions process at the Medical School.
A remedial classification for admission to the Medical
School defined as a program for disadvantaged cit
izens, administered in a racially neutral way, is not
constitutionally troublesome. Petitioner and Amici pro
test that a “disadvantaged” classification is unworkable.
It is alleged that there can be no easy or precise
definition of “disadvantaged.” This argument is a fa
miliar one. embodying the concept of “ administrative
convenience.” Reduced to its simplest terms, the argu
ment is that it is easier to decide who is black or
Asian than it is to set up criteria which evaluate
persons on their individual merits.18 This Court has IS
ISOf course, it should be readily apparent that it is not
always so simple even to decide who belongs to particular racial
groups. The definition of Chicano or a native American are
particularly elusive, being not correlated satisfactorily with ap
pearance, surname or dominant language. Moreover, in individual
cases, even blacks or Asians may not be readily identifiable.
See, B. Bittker, The Case for Black Reparations, ch. 10 (1973).
It appears in practice that the determinations as to race and
ethnicity for purposes of special treatment for individuals arc
made in many professional schools by minority students them
selves who tend to make such determinations on the basis of the
(This footnote is continued on next page)
— 31—
— 32—
repeatedly insisted, however, that the “administrative
convenience” inherent in not having to evaluate individ
ual cases cannot justify infringement upon important
individual rights. As Justice Douglas stated in his dissent
in DeFunis: “ [W ]e have never held administrative con
venience to justify racial discrimination.” 416 U.S. at
341 (Douglas, J., dissenting). See also, Stanley v.
Illinois, 405 U.S. 645 (1972); Reed v. Reed, 404
U.S. 71 (1971); Bell v. Burson, 402 U.S. 535 (1971);
and Carrington v. Rash, 380 U.S. 89 (1965).
The problem of ascertaining the membership of fa
vored racial groups is one of the most distasteful aspects
of programs like the Medical School’s plan. As Professor
Bittker has observed, there is no process that can
be more aptly characterized as racist than the pseudo
scientific one of determining whether a person belongs
to one race or another. B. Bittker, The Case for
Black Reparations, 96-97 (1973), The problem is not
simply hypothetical. To sanction the use of racial cri
teria as a proper basis for distribution of government
benefits is to make legal consequences flow from race.
Experience in other nations where race is determinative
of legal, economic and social position has been that
individuals will struggle to be declared in or out of
preferred or burdened racial groups.19 Inevitably ugly
acceptability of the individual’s political thinking to the minority
students. Certainly such a system has dangerous implications
for the First Amendment. See Posner, The DeFunis Case and the
Constitutionality of Preferential Treatment of Racial Minorities,
1974 S. Ct. Rev. 1, 13.
10It is not to be denied that the opportunity to receive
a medical education in this society is a highly valuable and
sought after benefit. Medical doctors have an extremely high
income potential and many persons wish to become doctors.
It is virtually certain that some will claim entitlement to a
racial preference for entry into medical school whose entitlement
(This footnote is continued on next page)
controvc
brown w
to the c
ethnicity
distribute
and worl
Petitic
taged • cl
whelmin'
white. T
context s
minimun
they of
is no rc
properly
college
ground.
The l
priate st;
plete lac-
gram. M
income U
cation, r;
to evalua
backgrou
The U
experienc
will be cl
black, or 1
is actually I
-"S e e N
and B m p!,
(1977) wh
might prod
individual
classificatio
presently a
>trative
: rn^vid-
[L_mnt
dissent
ve con-
U.S. at
•iley v.
d, 404
1971);
of fa-
aspects
ofessor
at can
pseudo
belongs
ise for
is not
ial cri-
rnment
n race.
f bive
that
out of
!y ugly
will be challenged on the ground that they are not really
black, or black enough or on the ground that their surname
is actually Italian or Greek rather than “ Spanish.”
20See Novick & Ellis, Equal Opportunity in Educational
and Employment Selection, 32 American Psychologist 306
(1977) which suggests that research in statistical decision theory
might produce devices to measure individual disadvantage and
individual utilities. If this is borne out, the “ disadvantaged”
classification may well be more manageable than the University
presently asserts.
minority
plications
* and the
linorities,
controversies over who is and who is not black or
brown will spill over from institutions and employers
to the courts of this nation. Standards for race and
ethnicity will have to be developed and utilized to
distribute fairly the segregated places in classrooms
and workplaces.
Petitioner and Amici also argue that the disadvan
taged classification is unworkable because the over
whelming number of poor people, some 85%, are
white. These statistics are meaningless in the present
context since all poor people do not possess the requisite
minimum qualifications for medical school, nor are
they of an age appropriate for consideration. There
is no reason to believe that the 85% statistic can
properly be extrapolated into a comparable figure for
college graduates with the required pre-med back
ground.
The University’s failure to provide the court appro
priate statistics simply underlines the University’s com
plete lack of experience in administering such a pro
gram. Moreover, there is no reason to assume that
income levels alone describe the disadvantaged classifi
cation, rather such a classification should also attempt
to evaluate the adequacy of an individual’s educational
background.20
The University does not offer this Court proof from
experience that this racial classification is necessary
i receive
able and
lely high
doctors,
ent to a
ititlement
— 33—
to achieve its interests.21 Rather, Petitioner and Amici /n y
bombard the Court with statistics, many of which repre- p.2d
sent extrapolations based upon unproven assumptions, 198
purporting to demonstrate that professional schools will by tl
be lily-white enclaves absent these programs. The Su- sone
preme Court of California determined that to prob
justify this racial classification the University must
— 34—
do more than hypothesize the necessity of the classifica
tion. It must demonstrate necessity by experience, not
conjecture. The course charted by the court below
is one of moderation— it merely demands that a racial
classification should be the last, not the first and
only, tool employed by the government to achieve
its desired ends. Certainly the Supreme Court of Cali- A.
fornia has an outstanding record of concern for the
civil rights of minority groups and disadvantaged It
citizens. The court has been in the forefront of expand- not
ing constitutional protections. See, e.g., Crawford v. any
Board of Education of the City of Los Angeles, case
17 Cal. 3d 280, 130 Cal. Rptr. 724, 551 P.2d 28 quot
(1976); San Francisco Unified School District v. John- four
son, 3 Cal.3d 937, 92 Cal.Rptr. 309, 479 P.2d 669 tive
(1971); Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 note
Cal.Rptr. 329, 485 P.2d 529 ( 1971); Serrano v. Priest, The
5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971); be t:
--------- of p:
21Moreover, it may be questioned whether the University itself
considers its asserted purposes to be truly compelling since 011101
they assert that unless their racial classification is upheld they
“would simply shut down their special admissions programs.”
Brief for Petitioner at 14. Such an abandonment of purpose
is hardly consistent with the University’s vigorous assertions
of the urgent necessity to achieve the claimed ends.
(
Amici
re-
ptions,
4s will
he Su-
lat to
must
ssifica-
ce, not
below
i racial
<t and
achieve
>f Cali-
or the
uitaged
xpand-
ord v.
! ngeles,
28
’ohn-
2d 669
1, 95
. Priest,
1971);
sity itself
ng since
leld they
-ograms.”
purpose
assertions
In re Antazo, 3 Cal.3d 100, 89 Cal.Rptr. 255, 473
P.2d 999 (1970); Perez v. Sharp, 32 Cal.2d 711,
198 P.2d 17 (1948). The moderate course proposed
by the court below is appropriate. It represents a rea
soned and balanced approach to a difficult set of
problems. As such, it should be affirmed by this Court.
I ll
Even if in the Present Case There Is a Compelling
Government Interest to Support a Racial Classifica
tion, the Government May Not Use a Numerical
Quota or Goal to Achieve Such an Interest With
out Violation of the Equal Protection Clause of
the Fourteenth Amendment.
A. The Task Force Program at the Medical School Is a Nu
merical Racial Quota.
It is now absolutely clear that the University may
not pursue a policy of reserving even one place in
any class exclusively for a white person. Yet, in this
case the University has fixed a specific numerical
quota of sixteen for the admission of applicants from
four specified minority groups without regard for rela
tive qualifications or availability. White applicants are
not considered for any of the sixteen segregated places.
The reservation of a specified number of places to
be distributed by absolute preference to individuals
of particular racial or ethnic backgrounds and to no
others is properly denominated a racial quota.
— 35—
to e
of s
lizat
The
is ir
desk
ever
A
in a
cate
that
be a
Thu
C.F.
goal
be n
(c )
If
dem<
to II
22"]
(OFC
under
from
that
of Cl
(197i
23-J
tion c
sugge
ability
the .
popu!
5, 19
24'J~
requii
to hi
( 1),
B. Whenever a Numerical or Percentage Value Is Assigned
to a Racial Goal and Such a Goal Is Backed by Govern
ment Coercion, the Result Is a Quota.
Employers subject to contract compliance affirmative
action plans imposed by federal, state and local govern
ments are well acquainted with numerical goals or
quotas designed to increase the employment and pro
motion of women and specified minorities according
to prescribed statistical representation formulae. In the
experience of employers, the assignment of a numerical
or percentage of workforce value to a “goal” when
such assignment is accompanied by government co
ercion inevitably results in the goal becoming a quota.
The process whereby a numerical value “goal” becomes
a quota may appropriately be demonstrated by reference
to the Executive Order program.
Executive Order 11246, as amended, requires that
government contractors and subcontractors agree not
to discriminate on the basis of race, color, religion,
sex or national origin and in addition to take “affirma
tive action” to ensure that there is no discrimination.
However, the implementing regulations go much far
ther than nondiscrimination; the regulations specify the
creation of affirmative action plans for specified minor
ities and women based upon the concept of pro rata
representation. See Revised Order No. 4, 41 C.F.R.
§ 60-1.4, 41 C.F.R. § 60-2 (1976) and Revised Order
No. 14, 41 C.F.R. § 60-60 (1976).
Whenever a contractor or subcontractor has job cate
gories with fewer minorities “ than would reasonably
be expected by their availability,” the contractor must
establish “goals” for increasing their utilization. 41
C. F.R. § 60-2.10 and 2.11 (1976). The requirement
— 36—
- 3 7 -
signcd
qycm-0
native
jvem-
ils or
1 pro
dding
in the
lerical
when
it co-
piota.
comes
crence
s that
•e not
ligion,
firma-
lation.
ify the
minor-
o rata
C.F.R.
Order
b cate-
•onably
>r must
on. 41
dement
to establish numerical goals depends upon a finding
of statistical imbalance between the contractor’s uti
lization rate for minorities and their availability rate.
The existence of prior discrimination by the contractor
is irrelevant to the requirement of goals which are
designed to remedy simple statistical imbalance, how-
ever caused."
A goal is stated as a percentage of the total employees
in a job category. The ultimate goal for every job
category mast be equal to the availability rate for
that minority group; in other words, each group must
be allocated a pro rata share of jobs and promotions.
Thus the ultimate goal mandates population parity.22 23 41
C.F.R. § 60-60, X II( B) (a) (1976). Annual numerical
goals must be established where the ultimate goal cannot
be realized within one year. 41 C.F.R. § 60-60, XII(B)
(c ) (1976).
-If a contractor fails to meet his goals, he must
demonstrate that he made “every good faith effort”
to meet the numerical goals set.24 It is not “good
22The Office of Federal Contract Compliance Programs
(OFCCP) has stated that the “goals and timetables” required
under its implementation of the Executive Orders are “drawn
from the principles and concepts of remedy,” but states firmly
that the quota remedies “ need not be triggered by a finding
of employment discrimination.” 41 Federal Register 40343
(1976).
23The contractor is encouraged to maximize the representa
tion of minorities in a number of ways. For example, the OFCCP
suggests that in selecting the labor market for determining avail
ability, the contractor “ should accept as a relevant labor market
the . . . recruitment area which reflects the highest minority
population.” OFCCP Technical Guidance Memorandum, May
5, 1976.
24The cost of showing “good faith effort” is often very high,
requiring the contractor to record and justify every decision not
to hire or promote a woman or minority. 41 C.F.R. §60-2.12(k)
(1 ), (2 ) (1976).
faith effort” to fail to meet a goal because the employer
hired the best qualified person for the job.25
The consequences of a contractor’s failure to justify
by good faith efforts his falling short of his goals
are very severe. The available sanctions for non-
compliance range from decisions to cancel, terminate
or suspend a contract, 3 C.F.R. § 209(a)(5) (1974),
to a decision that the contracting agency refrain from
awarding any future contracts to an offending employer,
the so-called “debarment.” 3 C.F.R. § 209 (a )(6 )
(1974). Debarment is a potent weapon against employ
ers who are heavily dependent upon government con
tracts. Professor Thomas Sowell, for example, has de
scribed it as “a virtual sentence of death to any leading
research university.” Sowell, “Affirmative Action" Re
considered, 41 The Public Interest 47, 51-52 (1975)..
The internal dynamics of corporations also contribute
to the inevitability of the transformation of goals into
quotas. Revised Order 4 provides that “Supervisors
shall be made to understand that their work perform
ance is being evaluated on the basis of their equal
employment opportunity efforts and results, as well
as other criteria.” 41 C.F.R. § 60-2.22(a)(8 ) (1976).
This impact of this aspect of the program has been
described by Daniel Seligman:
“In principle, of course, a line manager who
is not meeting his targets is allowed to argue
that he has made a ‘good faith effort’ to do
25For example, the HEW Guidelines, define “ reverse dis
crimination” and “preferential treatment” as the “selection of
unqualified persons over qualified ones.” Presumably this means
that it would not be a preference to hire a marginally quali
fied or trainable minority over a highly qualified white. See
Cramer v. Virginia Commonwealth University, 415 F.Supp. 673,
679 n.4 (E.D.Va. 1976), appeal pending, (4th Cir. No. 76-
1937).
- 3 8 -
SO.
wh
wa
If
re\
ma
of
toe
a i
sal
ont
to
fal
Int
68
The
form of
ment an
evaluate
goals dc
C. Raci:
Neve
and
Only
Only
The e
mented
quota is
admissio
School e
arbitrary
minority
marginal
- 3 9 -
employer
0W justify
his goals
for non-
terminate
) (1974),
rain from
employer,
0 9 (a )(6 )
>t employ
ment con-
e, has de-
ay leading
tion” Re-
2 (1975).
contribute
goals into
upervisors
: perform-
hejr equal
3 well
1976).
has been
uager who
' to argue
art’ to do
'reverse dis-
■‘selection of
y this means
finally quali-
1 white. See
F.Supp. 673,
2ir. No. 76-
*
so. But the burden of proof will be on the manager,
who knows perfectly well that the only sure-fire
way to prove good faith is to meet the targets.
If he succeeds, no questions will be asked about
reverse discrimination; if he fails, he will auto
matically stir up questions about the adequacy
of his efforts and perhaps about his racial tolerance
too (not to mention his bonus). Obviously, then,
a manager whose goals call for hiring six black
salesmen during the year, and who has hired only
one by Labor Day, is feeling a lot of pressure
to discriminate against white applicants in the
fall.” Seligman, How "Equal Opportunity'’ Turned
Into Employment Quotas, 87 Fortune 160, 167-
68 (1973).
The pressures to meet “goals” both external in the
form of the threat of contract cancellation and debar
ment and internal in the form of supervisor performance
evaluations based upon supervisors’ success in meeting
goals dovetail to result in a quota.
C. Racial Quotas Are Universally Deplored: This Court Has
Never Sanctioned or Imposed a Racial Quota or Goal
and Lower Courts Have Used Racial Quotas or Goals
Only to Redress Specific Past Discrimination and Then
Only With Extreme Caution and Restraint.
The evil inherent in a racial quota is amply docu
mented by the history of such devices. To utilize a
quota is to make race or ethnicity dispositive in the
admissions process. The racial quota at the Medical
School excludes highly qualified nonminorities on an
arbitrary basis even where the fifteenth or sixteenth
minority person admitted may only be minimally or
marginally qualified. Even Counsel for Petitioner Archi-
T
ther
part
has
raci
402
has
raci.
U.S
groi
tivc
pop
37
149
U.S
N
460
exp i
raci
com
to i.
to tl
with
of C
-'r
424.
717.
EdiUi
bald Cox, has recognized that a fixed target quota
for admissions based on race or ethnicity is a greater
cause for concern than is a program which simply
includes race as a factor. Brief of the President and
Fellows of Harvard College Amicus Curiae at 16-
17, 30, 42 and 50-51, DeFunis, et al. v. Odegaard,
et al, 416 U.S. 312 (1974).
-Racial quotas and proportional representation formu
lae perpetuate and legitimatize racial consciousness
particularly when imposed by the government.28 The
firm goal of nondiscrimination becomes submerged in
a thrashing sea of competing group demands. Quotas
are divisive and may lead to racial antagonism. Under
a mentality of racial proportionality, every non-minority
male who fails to get a promotion or job or grant
which went to a minority individual has the luxury
of believing himself to be discriminated against— wheth
er his credentials were inferior or superior. The minority
individual gains little acknowledgement of his genuine
achievements.
No decision of this Court has adopted or endorsed
the notion of imposed statistical parity in the distribution
of government benefits. This Court has specified that
the Equal Protection Clause does not create substantive
entitlement to proportional representation on the basis
of race, religion or ethnicity. The concept of propor
tional representation for groups is absolutely antithetical
to the concept of individual rights embodied in the
Equal Protection Clause— “No state shall . . . deny
to any person within its jurisdiction the equal protection
of the laws.”
^Kaplan, Equal Justice in an Unequal World, 61 Nw. L.
Rev. 363, 379-380 (1966).
:et quota
y— -reater
!v~ simply
;dent and
e at 16-
Odegaard,
on formu-
sciousness
:nt.28 The
nerged in
s. Quotas
tn. Under
u-minority
or grant
he luxury
t— wheth-
e minority
is genuine
endorsed
^Pmtion
cified that
ubstantive
i the basis
of propor-
intithetical
ied in the
. . . deny
protection
61 Nw. L.
This Court has rejected unequivocally the idea that
there is a “substantive constitutional right [to] any
particular degree of racial balance or mixing” and
has expressly disavowed the permissibility of a fixed
racial balance or quota in Swarm v. Board of Education,
402 U.S. 1, 24 (1971) and its progeny.27 The Court
has held that there is no requirement of pro rata
racial representation on juries. Cassell v. Texas, 339
U.S. 282, 286-87 (1950). Nor do members of minority
groups have a federal right to be represented in legisla
tive bodies in proportion to their numbers in the general
population; Beer v. United States, 425 U.S. 130, 136-
37 n.8 (1976); Whitcomb v. Chavis, 403 U.S. 124,
149 (1971). Cf. Griggs v. Duke Power Co., 401
U.S. 424 (1971).
Moreover, in Hughes v. Superior Court, 339 U.S.
460 (1950), in a First Amendment context, this Court
expressed unequivocal disapproval of the notion of
racial proportionality by explicitly refusing to extend
constitutional protection to picketing by black persons
to compel a store to hire black clerks in proportion
to the number of its black customers. The Court quoted
with approval the statement of the Supreme Court
of California that the pickets
“would make the right to work for Lucky depend
ent not on fitness for the work nor on an equal
right of all. regardless of race, to compete in
an open market, but, rather, on membership in
a particular race. If petitioners were upheld in
their demand then other races, white, yellow, brown
----- 41—
2'Pasadena City Board of Education v. Spangler, 427 U.S.
424, 434 (1976): Milliken r. Bradley (Milliken I). 418 U.S.
717, 740-41 (1974): Winston-Salem/Forsyth County Board of
Education v. Scott, 404 U.S. 1221 (1971).
— 4 2 —
and red, would have equal rights to demand dis
criminatory hiring on a racial basis.” Id. at 463-
464, quoting 32 Cal. 850, 856 (1948).
This Court then stated:
“ ftJo deny to California the right to ban picketing
in the circumstances of this case would mean
that there could be no prohibition of the pressure
of picketing to secure proportional employment
on ancestral grounds of Hungarians in Cleveland,
of Poles in Buffalo, of Germans in Milwaukee, of
Portuguese in New Bedford, of Mexicans in San
Antonio, of the numerous minority groups in New
York, and so on through the whole gamut of
racial and religious concentrations in various cit
ies.” Id. at 464.
Thus, far from endorsing the concept of distribution
of government benefits to groups on the basis of their
proportions in the population, this Court has specifically
disapproved and denied constitutional protection for
such a purpose. C/., Emporium Capwell Co. v. Western
Addition Community Organization, 420 U.S. 50
(1975).
Lower courts have never sanctioned the indiscrim
inate use of racial quotas or goals even to remedy
specific instances of past racial discrimination in employ
ment. Rather, courts have approached the device with
extreme caution and restraint, conscious of the need
to protect the rights and expectations of innocent non
minorities. The judicial tolerance of quotas is minimal
and is consistent with the principle that “quotas merely
to attain racial balance are forbidden, [but] quotas
to correct past discriminatory practices are not.” United
States v. Wood, Wire & Metal Lathers Local 46,
471 F.2d
939 (197
Absolu
Carter v.
denied, 4
temporal-
only for
v. Allen,
v. Gallag
Ass’n St
n.3 (2d C
Court-
fashionei
the conti i
tion. Cei
upon a s
ployer’s '
the hirim
judicial i
scope an
of the c
concept <
and valu
within thi
Instead
quotas di
for partic
2?Courts
disparities
Statistics p
of racial i
See, B. S.
Law, 1161
discriminati
land dis-
,463-
0 ‘
picketing
Id mean
pressure
ployment
leveland,
mkee, of
■; in San
s in New
:amut of
rious cit-
tribution
of their
ecifically
ction for
Western
^ 50
ndiscrim-
i remedy
n employ-
vice with
the need
cent non-
s minimal
as merely
t| quotas
t.” United
Local 46,
471 F.2d 408, 413 (2d Cir.), cert, denied, 412 U.S.
939 (1973).
Absolute preferences are forbidden even as a remedy.
Carter v. Gallagher, 452 F.2d 315 (8th Cir.), cert,
denied, 406 U.S. 950 (1972). The quota method is
temporary, designed and permitted to remain in effect
only for a limited period of time. See e.g., NAACP
v. Allen, 493 F.2d 614, 621, (5th Cir. 1974); Carter
v. Gallagher, 452 F.2d at 330; and Rios v. Enterprise
Ass’n Steamfitters, Local 638, 501 F.2d 622, 628
n.3 (2d Cir. 1974).
Court-imposed numerical quotas and goals are strictly
fashioned to go no further than necessary to eliminate
the continuing effects of proven illegal racial discrimina
tion. Certainly such remedies are not imposed merely
upon a showing of statistical disparity between an em
ployer’s work force and the demographic statistics of
the hiring area as the Executive Order requires.28 The
judicial remedies are strictly circumscribed in time and
scope and are subject to the continuing jurisdiction
of the court. Judicial quotas and goals embody no
concept of a permanent, mandatory allocation of scarce
and valuable resources to particular specified groups
within the population according to their numbers.
Instead, courts have been extremely critical of racial
quotas directed at achieving proportional representation
for particular groups. For example, the New York Court 2
2SCourts do frequently make use of evidence of statistical
disparities to prove violations of the antidiscrimination statutes.
Statistics provide a rough tool for evaluating the probabilities
of racial discrimination by a particular employer or union.
See, B. Schlei & P. Grossman, Employment Discrimination
Law, 1161-93 (1976). This tool of measurement for racial
discrimination rests upon an assumption that “ absent explanation,
(This footnote is continued on next page)
— 43—
of Appeals, the same court which decided Alevy v.
Downstate Medical Center, supra at note 3, confronted
the issue of the permissibility of racial quotas in Broid-
rick v. Lindsay, 39 N.Y.2d 641, 350 N.E.2d 595,
385 N.Y.S.2d 265 (1976). There, the court held illegal
an affirmative action regulation imposed by the mayor
which required construction contractors doing business
in New York City to meet prescribed minority hiring
percentages. The court found the regulations conflicted
with the antidiscrimination provisions of the New York
City Administrative Code, noting:
“There is a dramatic distinction between the
expressed legislative policy of prohibiting the em
ployment discrimination and the mayoral policy of
mandating employment ‘percentages,’ however dis
avowed unpersuasively as being quotas. Prohibition
of discrimination, properly utilized, allows indi
vidual employment opportunity without invidious
impediments. . . . But mandating percentages dis
places the standard of individual merit with a
standard that work forces reflect the ethnic com
position within the relevant geographic area even
if distribution based on merit would produce a
different composition.” Id. at 647, 350 N.E.2d at
598, 385 N.Y.S.2d at 268.
it is ordinarily to be expected that nondiscriminatory hiring
practices will in time result in a work force more or less
representative of the racial and ethnic composition of the popula
tion in the community from which employees are hired.” Inter
national Brotherhood of Teamsters v. United States, 45 U.S.L.W.
4506, 4510 n.20 (1977). In fashioning a remedy for past
discrimination courts will often make use of this same rough
tool to measure progress in the elimination of the discrimination.
Courts have, however, never made the conceptual leap of equat
ing the tool of measurement by statistics with the goal of
statistical representation as an end in itself wholly unrelated
to any finding of employment discrimination.
— 4 4 —
Tlu
did
1
con
5,
and
age
raci
the
pe
/
affi
disc
of .
v. /
761
76-
ami
in t
tion
m m w k
v r̂C'-' v V .
. mSE> r&x*
Eyf
Alevy v.
g^onted
ik Jroid-
,2d 595,
:ld illegal
he mayor
: business
ity hiring
conflicted
Jew York
ween the
z the em-
policy of
vever dis-
rohibition
ows indi-
invidious
tages dis-
t with a
mic com-
even
roauce a
N.E.2d at
tory hiring
ire or less
the popula
ted.” Inter
'S U.S.L.W.
y for past
ame rough
crimination,
p of equat-
he goal of
y unrelated
The Broidrick court expressly cautioned that Alevy
did not validate the use of a racial quota.
The Supreme Court of New Jersey reached a similar
conclusion in Lige v. Town of Montclair, 72 N.J.
5, 367 A.2d 833 (1976). Striking down a hiring
and promotional quota imposed by a state administrative
agency as violative of both the New Jersey law against
racial discrimination and the New Jersey constitution,
the New Jersey court described the quota device as
“pernicious.” Id. at 14, 367 A.2d at 842.
A number of courts have sustained challenges to
affirmative action quotas on the grounds that they
discriminate against nonminorities or males in violation
of antidiscrimination statutes. For example, in Weber
v. Kaiser Aluminum & Chemical Corp., 415 F. Supp.
761 (E.D. La. 1975), appeal pending, (5th Cir. No.
76-3266), the trial court held that a preferential hiring
and promotion quota for blacks, voluntarily adopted
in the absence of a judicial finding of past discrimina
tion, violated the antidiscrimination and anti-preference
provisions of Title VII. Preferential treatment in the
form of racial quotas may only be imposed by a
court upon a finding of past discrimination. Id. at
767-68.
In Cramer v. Virginia Commonwealth University,
415 F. Supp. 673 (E.D. Va. 1976), appeal pending,
(4th Cir. No. 76-1937), the court disapproved of the
implementation of an affirmative action program where
the university had disregarded all applications from
males for two vacant teaching positions, considering
only applications from females. Tire court soundly crit
icized the policy of the federal government; stating:
“ By requiring employers to engage in widespread,
pervasive and invidious sex discrimination through
— 4 5 —
the implementation of pervading affirmative action
programs, the U.S. Government is merely perpetu
ating the very social injustices which it so enthu
siastically and properly seeks to remedy.” Id. at
680.
The court concluded that a quota involved “the use
of an unconstitutional means to achieve an unconstitu
tional end.” Id. See also, Anderson v. San Francisco
School District, 357 F.Supp. 248 (N.D. Cal. 1972)
(voluntarily imposed racial quota violates 42 U.S.C.
§1983, Title VI and the Fourteenth Amendment); Bru-
netti v. City of Berkeley, .... F.Supp......., 12 F.E.P.
Cases 937 (N.D. Cal. 1975) (racial quota barred in
absence of past discrimination); Me A leer v. A. T. & T.
Co., 416 F.Supp. 435 (D.D.C. 1976); Hupart v. Board
of Higher Education, 420 F. Supp. 1087 (S.D.N.Y.
1976); Flanagan v. Georgetown College, 417 F. Supp.
377 (D.D.C. 1976).
The demand articulated in these cases that affirmative
action programs be administered so as not to result
in illegal discrimination appears to be consistent with
the view of the Equal Employment Opportunity Com
mission. See EEOC Decision 75-268, 10 FEP Cases
1502 (1975), where the Commission indicated that
majority group members cannot automatically be ex
cluded “even in the name of affirmative action.” Rather,
the Commission stated, “ [affirmative action plans must
be administered in a manner legally consistent with
the non-discriminatory principle of Title VII.” Id. at
1503.
All (
express
tion ol
this Cc
tims ol
using |
tations
45 U.S
“ I
ai
tli
m
in
te
rc
Cou
quotas
where
versely
partmc
Cir. I1
court s'
cc
til
qi.
29liitn
U.S.L.W
Departm
1975), <
493 F.2<
315 (8ti
" 4? - ■ K}&
' . v;- j -f>V
tion
iVi.a-
/. at
use
,titu-
cisco
972)
.S.C.
Bru-
.E.P.
:d in
c& T.
loard
N.Y.
5upp.
lative
m ]twith
Corn-
Cases
1 that
'e ex-
ather,
s must
t with
Id. at
- 4 7 -
All courts which have permitted racial remedies have
expressed concern for the rights and legitimate expecta
tion of nonminorities.2'’ In the recent Teamsters case
this Court indicated that the rights of identifiable vic
tims of proven racial discrimination must be balanced,
using principles of equity, against the “ legitimate expec
tations of other employees innocent of any wrong doing”
45 U.S.L'.W. at 4518. The Court stated:
“ [especially when immediate implementation of
an equitable remedy threatens to impinge upon
the expectations of innocent parties, the courts
must ‘look to the practical realities and necessities
inescapably involved in reconciling competing in
terests’ ” in order to determine an appropriate
remedy. Id. at 4519.
Courts have been particularly reluctant to use racial
quotas as remedies for past employment discrimination
where identifiable nonminority persons would be ad
versely affected. In Kirkland v. New York State De
partment of Correctional Services, 520 F.2d 420 (2d
Cir. 1975), cert, denied, 429 U.S. 823 (1976), the
court struck down a promotional quota, reasoning:
“One of the most controversial areas in our
continuing search for equal employment oppor
tunity is the use of judicially imposed employment
quotas. The replacement of individual rights and 29
29International Brotherhood of Teamsters v. United States, 45
U.S.L.W. 4506 (May 31, 1977); Kirkland v. New York State
Department of Correctional Services, 520 F.2d 420 (2d Cir.
1975), cert, denied, 429 U.S. 823 (1976); NAACP v. Allen,
493 F.2d 614 (5th Cir. 1974); Carter v. Gallagher, 452 F.2d
315 (8th Cir.), cert, denied, 406 U.S. 950 (1972).
— 4 8 —
paci
tran
i.e.,
the
T
clea
of t
men
to t
E
tion
to a
whe
quo
ach:
be
is l
alte;
The
and
is u
is v
a u
mus
ere a
to i
quer
opportunities by a system of statistical classifica
tions based on race is repugnant to the basic
concepts of a democratic society.
“The most ardent supporters of quotas as a
weapon in the fight against discrimination have
recognized their undemocratic inequities and con
ceded that their use should be limited. Commen
tators merely echo the judiciary in their disapproval
of the ‘discrimination inherent in a quota system.’ ”
Id. at 427 (footnotes omitted).
See also, Equal Employment Opportunity Commission
v. Local 638, Sheet Metal Workers International Ass’n,
532 F.2d 821 (2d Cir. 1976), where the court relied
on Kirkland in enunciating the following rule:
“ [Tjhe imposition of racial goals is to be toler
ated only when past discrimination has been clear-
cut and the effects of ‘reverse discrimination’ will
be diffused among an unidentifiable group of un
known, potential applicants rather than upon an
ascertainable group of easily identifiable persons.”
Id. at 828.
The Local 638 court indicated by way of dicta
that the rule set out above would not have justified
the “reverse discrimination” involved in the De-
Funis case. The court reasoned there was no record
of past discrimination at the University of Washington
and the number of places in the law school was absolute
ly limited. The court observed that, unlike a union,
a law school cannot expand its membership so as
to dilute the impact of a racial preference upon non-
minorities. Thus, the court’s dicta concluded, the im-
/
pact of the racial preference in DeFunis was concen
trated upon a “small and narrow group of persons,
i.e., the applicants next in line . . contrary to
the rule enunciated. Id. at 828.
The principles which emerge from the cases are
clear and consistent with the nondiscrimination principle
of the Civil Rights Acts and the Fourteenth Amend
ment. The use of a racial quota is utterly antithetical
i to the principles and values of a democratic society.
Despite the vehement assertions of Amici and Peti
tioner that the racial quota herein is the only way
to achieve racial justice, it must be seriously questioned
whether this most ugly of historical relics, the racial
quota, should be resurrected as a rational means of
achieving a color blind society. Certainly it should
be imposed only upon a showing of necessity which
is based upon actual experience with less dangerous
alternatives rather than upon hypothesis and conjecture.
The goal of a nondiscriminatory society where bounty
and burden fall equally upon individuals, not races,
is universally revered— the only question in this case
is whether a most discredited means is justified as
a means of achieving the desired goal. The answer
must be an unequivocal no. It does not serve the
creation of an integrated nation for the government
to impel ever sharper and more meaningful conse
quences of race.
i
i
— 4 9 —
iissifica-
: ^asic
'S as a
>n have
nd con-
ommen-
pproval
stem.’ ”
mission
I Ass’n,
t relied
>e toler-
n clear-
on’ will
i of un-
ipon an
ersons.”
•
>f dicta
justified
he De-
) record
shington
ibsolute-
,i union,
p so as
'on non-
the im-
Conclusion
For the reasons stated above, the Chamber urges
that the decision of the Supreme Court of California
be affirmed.
Respectfully submitted,
C harles G. Bakaly ,
Counsel for the Chamber of Commerce of
the United States of America, Amicus
Curiae.
Of Counsel:
O ’M elveny & M yers,
D ian D. O gilvie ,
L aw rence B. Kraus,
National Chamber Litigation
Center, Inc.
Dated: August 5, 1977.
- 5 0 -
IN THE
#upt?mp (Emurx xrf Hip lEuiiPxi
October Term, 1977
No. 76-811
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Petitioner,
ALLAN BAKKE,
Respondent.
BRIEF AMICI CURIAE OF ANTI-DEFAMATION LEAGUE
OF B’NAI B’RITH; COUNCIL OF SUPERVISORS AND
ADMINISTRATORS OF THE CITY OF NEW YORK,
LOCAL 1, AFSA, AFL-CIO; JEWISH LABOR COMMITTEE;
NATIONAL JEWISH COMMISSION ON LAW AND
PUBLIC AFFAIRS ( “ COLPA” ) ; AND UNICO NATIONAL * 66
Philip B. K urland
Daniel D. Polsby
Rothschild, Barry & Myers
Two First National Plaza
Chicago. Illinois 60603
(312) 372-2345
A tto r n e y s fo r A m ic i C uriae
Larry M. Lavinsky
Arnold Forster
Anti-Defamation League of B’nai B’rith
315 Lexington Avenue
New York, New York 10016
Leonard Greenwald
Council of Supervisors and Adminis
trators of the City of New York,
Local 1, AFSA, AFL-CIO
80 Eighth Avenue
New York, New York 10011
D a v i d I . A s h e
Jewish Labor Committee
25 East 78th Street
New York, New York 10021
Dennis Rapps
National Jewish Commission on
Law and Public Affairs ( “ COLPA” )
66 Court Street
Brooklyn, New York 11201
Renato R. Biribin
Anthony J. Fornelli
UNICO National
72 Burroughs Place
Bloomfield, New Jersey 07003
Of Counsel
T A B L E O F C O N T E N T S
P A G E
Opinions Below ............................................................. 1
Jurisdiction .................................................................. 1
Consent of the Parties.................................................. -2
Questions Presented...................................................... 2
Constitutional and Statutory Provisions ................... 2
Interest of the Amici Curiae......................................... 3
Summary of Argument ................................................ 6
Argument
I—Statement of Issues and Non-Issues............... 8
II—The racial admission quota utilized by the Pe
titioner deprived Respondent of his constitu
tional right to equal protection of the laws .... 13
A. Racial quotas are intrinsically malign .... 15
B. There is no state interest that can justify
the use of a racial admissions quota...... 19
C. The racial admissions quota is not ad
dressed to the benefit of the socially and
economically deprived .............................. 21
D. The Equal Protection Clause does not
afford rights to blacks only ..................... 23
III—The Civil Rights Acts prohibit the racial quota
utilized by Petitioner in this case................... 27
Conclusion .................................................................... 29
TABLE OF AUTHORITIES
Cases:
Ashwander v. T.V.A., 297 U.S. 288 (1936) ................. 28
Baker v. Carr, 369 TJ.S. 186 (1962) .............................. 25
Brennan v. Goose Creek Consolidated Ind. School
Dist., 519 F.2d 53 (5th Cir. 1975) ......................... 27
Brown v. Board of Education, 347 TJ.S. 483
(1954) .................................................................3,23,24
Buchanan v. Warley, 245 TJ.S. 60 (1917)..................... 24
Colorado Anti-Discrimination Commission v. Conti
nental Airlines, Inc., 372 TJ.S. 714 (1963) .......... 3
Dayton Board of Education v. Brinkman, No. 76-539,
45 U.S.L.W. 4910 (27 June 1977) ....................... 9
De Funis v. Odegaard, 416 TJ.S. 312 (1974) ...... 4,6,14,17,
20, 23
Gomez v. Perez, 409 TJ.S. 535 (1973) ............................ 24
Graham v. Richardson, 403 TJ.S. 365 (1971) ............ 24
Griffiths, In re, 413 TJ.S. 717 (1973) ............................ 24
Hampton v. Mow Sun Wong, 426 TJ.S. 88 (1976) ...... 10
Harper v. Virginia State Bd. of Elections, 383 TJ.S.
663 (1966) ............................................................... 24
Hunter v. Erickson, 393 TJ.S. 385 (1969) ..................... 19
James v. Valtierra, 402 TJ.S. 137 (1971) ..................... 21
Jones v. Alfred H. Mayer Co., 392 TJ.S. 409 (1968) .... 3
Levy v. Louisiana, 391 TJ.S. 68 (1968) ....................... 24
Loving v. Virginia, 388 TJ.S. 1 (1967) .......................... 19
Lucas v. Colorado General Assembly, 377 TJ.S. 713
(1964) ............................................................... 11,22,26
McDonald v. Santa Fe Trail Trans. Co., 427 TJ.S. 273
(1976) ............................................................. 4,7,13,28
11
McLaughlin
Memorial Ii
(1974)
Millikcn v. i
Missouri c>
(1938)
Oyama v. C;
Reynolds v.
Runyon v. A
San Antoni
guez, 41
Shapiro v. rl
Shelley v. K
Smith v. Ca
Sugarman v
Sullivan v.
-Swann v. Cl
402 TJ.S
Sweatt v. P;
United Jewi
v. Care>
229 (10
Tick Wo v. I
Youngstown
(1952)
I l l
..... 28
.... 25
Stool
.... 27
483
.3, 23, 24
..... 24
inti-
3
539,
...... 9
',6,14,17,
20, 23
...... 24
..... 24
...... 24
9 . .
IT.S.
..... 24
..... 19
....... 21
) .... 3
...... 24
..... 19
. 713
.11,22, 26
. 273
4,7,13, 28
PAOB
McLaughlin v. Florida, 379 U.S. 184 (1964) ............. 19
Memorial Hospital v. Maricopa County, 415 U.S. 250
(1974) .................................................................... 25
Millikon v. Bradley, 418 U.S. 717 (1974) ..................... 9
Missouri ex rel. Gaines v. Canada, 305 U.S. 337
(1938) ............................................................... 19,22,25
Oyama v. California, 332 U.S. 633 (1948) ...................19, 24
Reynolds v. Sims, 377 U.S. 533 (1964) .........................25, 26
Ruiiyon v. McCrary, 427 U.S. 160 (1976) ...................4, 7, 28
San Antonio Independent School District v. Rodri
guez, 411 U.S. 1 (1973) ......................................... 3,21
Shapiro v. Thompson, 394 U.S. 618 (1969) ................. 25
Shelley v. Hraemer, 334 U.S. 1 (1948) ......................... 3
Smith v. Cahoon, 283 U.S. 553 (1947) ......................... 24
Sugarman v. Dougall, 413 U.S. 634 (1973) ................... 24
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) 3
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .................................................. 9
Sweatt v. Painter, 339 U.S. 629 (1950) ............3, 6, 8,13,19
United Jewish Organizations of Williamsburgh, Inc.
v. Carey,------U.S.-------, 97 S.Ct. 996, 51 L.Ed. 2d
229 (1977) ............................................................. 10,17
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..................... 24
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) .....................................................................22,29
I V
Constitutional and Statutory Provisions:
PAGE
Kramer,
... 2 , 1 0
(192:
... 1 0 Leonard,
Pres
... 1 0 583 1
... 3,7 Marcus, '
... 27 (1934
... 27
... 27
2, 8 , 27
McPherst
Fidel
Hew Tori
Report 0.
1 2 Bakk
Other Authorities:
Baron, The Russian Jew Under Tsars and Soviets
(1964) ................................................................. 5
Bickel, The Morality of Consent (1975) ..................9,12, 30
Bickel, The Original Understanding and the Segrega
tion Decision, 69 Harv. L. Rev. 1 (1955) 24
Congressional Globe 599, 39tli Cong., 1 st Sess. (1866) 25
Glazer, Affirmative Discrimination (1975) ............... ig
Higher Education for American Democracy, A Report
of the President s Commission on Higher Educa
tion (1974) ...................... -
Kennedy, Jim Crow Guide to the U.S.A. (1959; 1973) 5
Kisch, The Jews in Medieval Germany: A Study of
Their Legal and Social Status (2 d ed. 1970)
Kochan, ed., The Jews in Soviet Russia Since 1917
(2d ed. 1972) ............................................. 5
Segal, TL
Sowell, “
lie In
Sowell, Bl
Steinberg.
67 (S
PAGE
2, 10
10
10
v, i
27
27
27
2, 8, 27
12
icts
5
9,12, 30
• 24
'66) 25
18
,'ort
uca-
5
)73) 5
v of
5
1917
5
PAGE
Kramer, What Lowell Said, Tlie American Hebrew
(1923) .................................................................... 6
Leonard, Placement and the Minority Student: New
Pressures and Old Hang-Ups U. Tol. L. Rev.
583 (1970) ............................................................. 20
Marcus, The Rise and Destiny of the German Jew
(1934) .................................................................... 5
McPherson, The Black Law Student: A Problem of
Fidelities, Atlantic 93 (April 1970) ..................... 16
New York Times, 1 May 1977 ..................................... 12
Report on Special Admissions at Boalt Hall After
Bahke .................................................................... 23
Segal, The New Poland and the Jews (1938) .............. 5
Sowell, “ Affirmative Action’ ’ Reconsidered, 42 Pub
lic Interest 47 ("Winter, 1976) .............................. 17
Sowell, Black Education; Myths and Tragedies (1972) 16
Steinberg, Hoiu Jewish Quotas Began, Commentary
67 (Sept. 1971) ...................................................... 5,6
IN THE
j§upr?m£ GJmtrt at % Imteii Btatea
October Term, 1977
No. 76-811
The Regents of the University of California,
Petitioner,
' v.
Allan Bakke,
Respondent.
BRIEF AMICI CURIAE OF ANTI-DEFAMATION
LEAGUE OF B’NAI B’RITH; COUNCIL OF
SUPERVISORS AND ADMINISTRATORS OF
THE CITY OF NEW YORK, LOCAL 1, AFSA,
AFL-CIO; JEWISH LABOR COMMITTEE;
NATIONAL JEWISH COMMISSION ON
LAW AND PUBLIC AFFAIRS ( “COLPA” );
AND UNICO NATIONAL
Opinions Below
The opinions of the California Supreme Court are
reported at 18 Cal. 3d 34, 132 Cal. Rep. 680, 553 P.2d 1152.
The trial court’s opinion is set out as Appendix P to the
Petition for Certiorari.
Jurisdiction
The jurisdiction of this Court was invoked under 28
U.S.C. §1257(0). Certiorari was granted on 22 February-
1977. ----- U.S.------ , 97 S. Ct. 1098, 51 L.Ed. 2d 535.
2
Till,
Shi
To.
p m
of
son
sh;i
tax
oth
B ’no
organiz.
League
to advo
Americ:
and roll
Defama
civil rigi
in assur
under la
Amo:
the Anti
briefs in
gality ot
cases as
Siueatt v
Educatk
tion Coh
(1963);,
Sullivan
Consent of the Parties
Petitioner and Respondent have consented to the filing
of this brief, and their letters of consent are on file with
the Clerk of the Court.
Questions Presented
May a State, consistently with the commands of the
Fourteenth Amendment, exclude an applicant from one of
its medical schools solely on the ground of the applicant’s
race?
May a State, consistently with the commands of the
national Civil Rights Acts, exclude an applicant from one
of its medical schools solely on the ground of the applicant’s
race?
Constitutional and Statutory Provisions
The Fourteenth Amendment to the Constitution of the
United States provides:
. . . nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
Title 42 U.S.C. §2000d provides:
No person in the United States shall, on the ground
of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be sub
jected to discrimination under any program or activity
receiving Federal financial assistance.
Title 42 U.S.C. $1981 provides:
filing
■ with.
if the
me of
■ •ant’s
if the
a one
'.•ant’s
Pne
f life,
; nor
equal
ground
! from
•e sub-
otivity
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of per
sons and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no
other.
Interest of the Amici Curiae
B’nai B ’rith, founded in 1S43, is the oldest civic service
organization of American Jews. The Anti-Defamation
League was organized in 1913 as a section of B ’nai B ’rith
to advance good will and mutual understanding among
Americans of all creeds and races, and to combat racial
and religious prejudice in the United States. The Anti-
Defamation League is vitally interested in protecting the
civil rights of all persons, be they minority or majority, and
in assuring that every individual receives equal treatment
under law regardless of his or her race or religion.
Among its many other activities directed to these ends,
the Anti-Defamation League has in the past filed amicus
briefs in this Court urging the unconstitutionality or ille
gality of racially discriminatory laws or practices in such
cases as, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948);
Sweatt v. Painter, 339 U.S. 629 (1950); Brown v. Board of
Education, 347 U.S. 483 (1954); Colorado Anti-Discrimina
tion Commission v. Continental Airlines, Inc., 372 U.S. 714
(1963); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968);
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969); San
Antonio Independent School District v. Rodriguez, 411 U.S.
1 (1973); De Funis v. Odegaard, 416 U.S. 312 (1974);
Runyon v. McCrary, 427 U.S. 160 (1976); McDonald v.
Santa Fe Trail Transporation Co., 427 U.S. 273 (1976).
The Council of Supervisors and Administrators of the
City of New York, Local 1, AFSA, AFL-CIO, is a labor
organization representing pedagogical supervisory and
administrative staff within the city school district of the
City of New York. Its membership, numbering about 4,500,
is professionally committed to assuring that New York City
school children receive the finest education available from
a staff recruited and promoted according to objective non
political criteria of merit and fitness.
The Jewish Labor Committee, organized in 1934, is a
national civil rights organization concerned with the preser
vation of constitutional rights for all Americans. It has,
over the years, submitted or joined in amicus curiae briefs
to various courts including the United States Supreme
Court.
The National Jewish Commission on Law and Public
Affairs (“ COLPA” ) is a voluntary association of attorneys
and social scientists organized to combat discrimination and
is committed to securing the right of observant Jews, along
with other Americans, to equality of opportunity. COLPA
is the principal non-governmental agency involved in the
protection of the legal rights of observant Jews. COLPA
has appeared in that capacity before numerous courts, in
cluding this honorable Court.
140 chr
tional i
its obje
heritage
Aincric,
the pub
55 year:
aid to
researcl
The
volvcd :
because
and otln
United
any sin:
society
neverthi
discrim i
origins i
versitv r
the styb
those of
ties, ma>
lightenn
* Sec,
Retort o
35 (1947'i
1973); S'
(Sept. 197
A Study
Marcus, '
Segal, T:
ed., The 1
146 (2d e
Soviets 47
UNICO National is the nation’s largest Italian-Ameri
can community service and public affairs organization, with
v_,S.
1.974);
aid v.
•6) .
of the
labor
7 and
of the
4,500,
k City
' from
e non-
1, is a
n-eser-
lt has,
briefs
preme
Public
orneys
on and
. along
OLPA
in the
OLPA
rts, in-
.Lmeri-
n, with
140 chapters throughout the United States. UNICO Na
tional represents approximately 50,000 people and has as
its objectives to foster, encourage and promote the Italian
heritage and culture as a creative force for the good of all
Americans and to enhance the interest of each member in
the public welfare of his community. UNICO National is
55 years old and has been active in the areas of scholarship,
aid to the physically handicapped, and the fostering of
research in the afflictions of mental health.
The “ numerus clausus,” the racial quota that is in
volved in this case, is of particular concern to the amici
because of the long history of discrimination against Jews
and others by the use of quotas, both in Europe and in the
United States.* This brief is not an argument on behalf of
any single minority, but on behalf of the free and open
society mandated by the Constitution. It may be noted,
nevertheless, that after only three or four decades of non-
discriminatory admissions, in which creed, color, and ethnic
origins have been rejected as appropriate criteria for uni
versity admissions, the universities, which for centuries set
the style in excluding or restricting Jewish students and
those of various other religious, racial, and ethnic minori
ties, may again be able to do so, again in the name of en
lightenment and diversity, if the decision below is not af-
* See, e.g., Higher Education for American Democracy, A
Report of the President’s Commission on Higher Education
35 (1947) ; Kennedy, Jim Crow Guide to the U.SA. 92 (1959;
1973) ; Steinberg, How Jewish Quotas Began, Commentary 67
(Sept. 1971) ; see also Kisch, The Jews in Medieval Germany:
A Study of Their Legal and Social Status (2d ed. 1970) ;
Marcus, The Rise and Destiny of the German Jew 11 (1934) ;
Segal, The New Poland and the Jews 197 (1938) ; Kochan,
ed., The Jews in Soviet Russia Since 1917 1-2, 17, 90, 91, 92, 94,
146 (2d ed. 1972); Baron,-The Russian Jew under Tsars and
Soviets 47 (1964).
5
in
pi
sh
in
vii
A v
of the
of the i
in dete
nation
turn o
order t
rationr
tained
fordim
greatei
thing 1
to equ
will le
racial
itself v
Tin.
ever, n
Fourti
ficatioi
§19S1
even w
Crary,
crimin;
whites
Trans i
by this
firmed. See, e.g., Steinberg, supra; Kramer, What Lowell
Said, The Ameeican Hebbew 394 (1923).
Summary of Argument
The only question presented by this case is whether the
state University of California can utilize race as the de
terminative factor in the admission and exclusion of candi
dates for its medical school at Davis. This Court has
consistently read the Fourteenth Amendment to forbid the
use of race as a criterion for admission. Indeed, we submit
that the specific question raised here was resolved by this
Court in Sweatt v. Painter, 339 U.S. 629 (1950). Nothing
in the opinions or judgments of this Court in the interven
ing years has detracted from strict adherence to this prin
ciple.
As Mr. Justice Douglas, the only member of the Court
to address the substantive question in DeFunis v. Odegaard,
416 U.S. 312, 342-44 (1974), wrote:
The Equal Protection Clause commands the elimina
tion of racial barriers, not their creation in order to
satisfy our theory as to how society ought to be
organized. . . .
If discrimination based on race is constitutionally
permissible when those who hold the reins can come up
with “ compelling” reasons to justify it, then consti
tutional guarantees acquire an accordionlike quality.
. . . It may well be that racial strains, racial suscepti
bility to certain diseases, racial sensitiveness to en
vironmental conditions that other races do not expe
rience, may in an extreme situation justify differences
in racial treatment that no fairininded person would
call “ invidious” discrimination. Mental ability is not
well
tker the
the de-
>f candi-
■urt has
rbid the
• submit
l by this
Nothing
uterven-
lis prin-
:e Court
legaard,
.nna-
order to
t to he
itionally
come up
u consti-
quality.
suscepti-
s to en-
ot expe-
ffcrences
m would
ty is not
in that category. All races can compete fairly at all
professional levels. So far as race is concerned, any
state-sponsored preference to one race over another
in that competition is in my view “ invidious” and
violative of the Equal Protection Clause.
A variety of arguments have been advanced on behalf
of the University designed to rationalize an abandonment
of the established standards of the Equal Protection Clause
in determining the constitutionality of the racial discrimi
nation practiced against Eespondent here. All of them
turn on the fact that Bakke is white and was' excluded in
order to make a place for nonwhite students. Whatever the
rationalization, however, this approach can only be sus
tained if the Fourteenth Amendment be construed as af
fording members of certain racial and ethnic groups
greater Constitutional rights than it affords others. Any
thing less than a reaffirmation of the right of the individual
to equal treatment under law, whatever his or her race,
will lead to- further arbitrary state action, to increased
racial tensions, and to a loss of faith in the rule of law
itself with untold damage to the fabric of society.
The constitutional question presented by this case, how
ever, need not be decided here. For, whether or not the
Fourteenth Amendment bars this form of racial classi
fication, the laws of the United States do. Title 42 U.S.C.
§1981 forbids exclusion from schools on a racial basis
even where the school is a private school. Runyon v. Mc
Crary, 427 U.S. 160 (1976). And the rights to nondis
crimination afforded by §1981 are granted equally to all,
whites as well as blacks. McDonald v. Sante Fe Trail
Transp. Co., 427 U.S. 273 (1976). The reading given §1981
by this Court’s recent decisions is even more appropriate
7
8
tuti
cau
sole
hibi
gro
sim
gro-
ticu
Moi
like
to {'
1
Prt>-
tion
whii
r
righ
segr
quo*-
ticei
rem-
raci;
coup
Clio.
16 (
B a y :
op., :
then
rejer
by I
to the language of 42 TJ.S.C. $2000d, and the question raised
below under that statute should be resolved in favor of
Respondent as it was by the trial court below. (App. F. to
Petition for Certiorari at 117A.) This can be done without
reaching the merits of the constitutional question and
despite the fact that the opinion below did not address the
statutory issues.
A R G U M E N T
I
Statement of Issues and Non-Issues
A detailed restatement of the facts here is neither ap
propriate nor necessary. It only need be said that sixteen
places in Petitioner’s entering class at the medical school
at Davis were closed to Respondent and all other white
applicants because of their race. In light of the numerous
issues proferred by Petitioner and the numerous amicus
briefs in support' of the Petitioner, however, it is appro
priate and necessary to state what the single issue before
this Court is and also what issues are not presented to this
Court on the facts and record of this case.
Respondent Bakke was precluded from admission to the
state medical school because he is white. The sole ques
tion for adjudication here is whether such exclusionary ac
tion by the State of California on the ground of Respond
ent’s race is invalid under the Constitution and laws of the
United States.
Had Mr. Bakke been excluded because he was black,
there could be no question of the invalidity of the state ac
tion. Sweatt v. Painter, 339 U.S. 629 (1950). The Consti-
tution and laws which forbid exclusion of blacks solely be
cause they are black do not permit exclusion of whites
solely because they are white. “ If the Constitution pro
hibits exclusion of blacks and other minorities on racial
grounds, it cannot permit the exclusion of whites on
similar grounds; for it must be the exclusion on racial
grounds which offends the Constitution, and not the par
ticular skin color of the person excluded.” Bickel, The
Morality" of Consent 132-33 (1975). The Constitution,
like the Civil Rights Laws, speaks to equal protection not
to preference.
Perhaps because the answer to the essential question
presented by this case is so plain, a multitude of other ques
tions have been offered to the Court for resolution, none of
which is relevant to this case.
This is not a case concerned with framing a remedy to
right a constitutional wrong. Unlike the public school de
segregation cases brought before this Court, there is no
question here of any segregation or racial exclusion prac
ticed by the University of California that could call for
remedy. In the case of a constitutional violation, a
racial remedy might be directed, but it would have to be
confined to a cure of the constitutional violation. Swann v.
Charlotte-Meclclenburg Board of Education, 402 U.S. 1,
16 (1971); Millilcen v. Bradley, 418 U.S. 717, 744 (1974);
Dayton Board of Education v. Brinkman, Uo. 76-539, Slip
op., at 13-14, 45 U.S.L.'W. 4910, 4913 (27 June 1977). Since
there is no such violation to be cured here, these precedents
reject rather than justify the racial discrimination imposed
by Petitioner.
9
tv on raised
l in favor of
. (App. F. to
done without
question and
>t address the
les
is neither ap-
l that sixteen
tedical school
1 other white
the numerous
erous amicus
^ t is appro-
^ ^ u c before
rented to this
i fission to the
he sole ques-
lusionary ac-
1 of Respond
'd laws of the
le was black,
■’ the state ac-
The Consti-
The question in this case is also not whether the Uni
versity of California is restricted in its admissions stand
ards to such matters as the applicant’s Medical College Ad
missions Test and college record. Nor does the case test the
validity of these criteria as measures of potential achieve
ment in medical school or medical practice. And there is
no suggestion in the record of any evidence that the college
grades and/or MCAT scores are invalidly biased in favor
of or against any racial group. By the judgment below,
the choice of criteria for admission, except for the criterion
of race, is left totally to the University, including special
privileges for the socially or economically deprived. It is
the University that has chosen to utilize scholastic records
and tests for all applicants, and it chooses among black
applicants, albeit separately, as it chooses among white
applicants, on the basis of these standards. Presumably
the University considers these standards relevant for all
applicants. The judgment below doesn’t require adher
ence to any particular criteria, but only abstention from
admission or exclusion by race.
Nor is the question in this case whether the national
government may, under certain circumstances, constitu
tionally indulge, or compel states to indulge, racial classi
fications pursuant to Congress’s constitutional powers,
whether under Article I, or §5 of the Fourteenth Amend
ment, or §2 of the Fifteenth Amendment. United Jewish
Organizations of Williamsburgh Inc. v. Carey, ------ U.S.
------, 97 S.Ct 996, 51 L. Ed. 2d 229 (1977). It is clear from
this Court’s judgments that the restraints on the states, to
which the Fourteenth Amendment’s strictures are directed,
are greater than the limits placed on the national govern
ment by the Fifth Amendment. Hampton v. Moiv Sun
10
Wong, 42'
conscious
tioned in
to vote oi
and other
Medical S
Neither is
rights. 9
tioner to
tional rig
This c
or state 1
legislatui
whites to
legislativ
will of tl
had been
Equal Pi
sembly, l
Final!
number <
cial intoi
ciples of
desirable
the attiti
ences of
hand, a ;
special p
able. Ai
whites,
tion reje>
i w i the Uui-
issions stand-
il College Ad-
13 case test the
■ntial achieve-
And there is
■ at the college
used in favor
igment below,
r the criterion
hiding special
prived. It is
•lastic records
among black
among white
Presumably
ievant for all
•quire adher-
stention from
^^ ê national
ces, constitu-
. racial classi-
ional powers,
eenth Amend-
rJnited Jewish
'ey, ------U.S.
t is clear from
i the states, to
s are directed,
tional govern-
v. Moiv Sun
Wong, 426 U.S. S8, 100 (1976). Furthermore, the racially
conscious redistricting under the Voting Rights Act sanc
tioned in WUliamsburgh deprived no individual of the right
to vote on account of race. Here, by contrast, Respondent
and other white applicants were displaced from the Davis
Medical School’s entering class solely because of their race.
Neither is there a question here of conflicting constitutional
rights. There is no constitutional right asserted by Peti
tioner to be balanced against Respondent’s clear constitu
tional right to equal protection of the laws.
This case does not raise the question whether a national
or state legislature can, by majority action of the relevant
legislature, purport to waive the constitutional rights of
whites to equal protection of the laws. There was here no
legislative action that could be deemed to represent the
will of the majority of the people of California. If there
had been, it could not suffice to avoid the commands of the
Equal Protection Clause. Lucas v. Colorado General As
sembly, 377 U.S. 713 (1964).
Finally, the question in this case is not whether a large
number of medical and law associations and other spe
cial interest groups think the departure from the prin
ciples of the Constitution’s Equal Protection Clause is
desirable. The plethora of amicus briefs do not reveal
the attitudes of the public, but only the particular prefer
ences of those who caused them to be written. On the other
hand, a public opinion poll makes clear that this form of
special preference for minorities is regarded as undesir
able. And this is the point of view of nonwhites as well as
whites. A Gallup Poll revealed that 83% of the popula
tion rejected the concept of special preferences for minori-
11
The
tioner <
to equa
The
admissi<
at Davi
he woul
white, lit
33!) U.S.
is whetb
tected b
to be dei
Does
Fourteei
whites r
whites a
to what .
rights ol
equal if >
lationshi
equally 1
Clause n>
not depei
Thus,
to whites
law. Me
273 (1976
to one pe
ties, including 64% of nonwhites. See New York Times,
1 May 1977, p. A33, col. 1. Indeed, in November, 1976, the
Constitution of California was amended to provide that
“ no person shall be debarred admission to any department
of the university on account of race, religion, ethnic heri
tage, or sex.” Calif. Const. Art IX, §9(F). (The itali
cized words were added by the amendment.) This should
leave no doubt that the people of California have spoken
against the utilization of race as a standard for admission
such as occurred in this case.
The sole question before this Court is whether the re
verse discrimination attempted here by the University of
California is inconsistent with the mandates of the Four
teenth Amendment’s Equal Protection Clause and of Con-
gressionally enacted civil rights acts prohibiting racial dis
crimination. Although the issue is a narrow one, its reso
lution has profound implications for the future of our
society. As Professor Bickel put it, Bickel, supra at 133:
The lesson of the great decisions of the Supreme
Court and the lesson of contemporary history have
been the same for at least a generation: discrimination
on the basis of race is illegal, immoral, unconstitu
tional, inherently wrong, and destructive of democratic
society. Now this is to be unlearned and we are told
that this is not a matter of fundamental principle but
only a matter of whose ox is gored. Those for whom
racial equality was demanded are to be more equal
than others. Having found support in the Constitu
tion for equality, they now claim support for inequality
under the same Constitution.
12
13
rk Times,
iber, 1976, the
provide that
iy department
i, ethnic heri-
). (The itali-
This should
i have spoken
for admission
hether the re-
University of
of the Four-
e and of Con
ing racial dis-
one, its reso-
'uture of our
supra at 133:
the Supreme
torv have
^Rrimination
1, unconstitu-
of democratic
d we are told
principle but
ose for whom
e more equal
the Constitu
tor inequality
II
The racial admission quota utilized by the Peti
tioner deprived Respondent of his constitutional right
to equal protection of the laws.
The fact is that Respondent has been excluded from
admission to the University of California’s medical school
at Davis because he is white. Had he been a nonwhite
he would not have been excluded. Had he been a non
white, he could not have been excluded. Siveatt v. Painter,
339 U.S. 629 (1950). The question before this Court then
is whether the constitutional rights of all “ persons” pro
tected by the terms of the Equal Protection Clause are
to be denied to Respondent because of his race.
Does equal protection by the State, commanded by the
Fourteenth Amendment, mean one thing as applied to
whites and another when applied to nonwhites? Since
whites and nonwhites, by definition, exhaust the universe,
to what are the rights of nonwhites to be equal, if not the
rights of whites? To what are the rights of whites to bo
equal if not to those of nonwhites? Equality denotes a re
lationship between or among those who are to be treated
equally by the government. And the Equal Protection
Clause means that the constitutional rights of a person can
not depend on his race, or it means nothing.
Thus, to grant privileges to nonwhites but to deny them
to whites is an invalid denial of equal treatment under the
law. McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273 (1976). To afford admission to a state medical school
to one person because he is nonwhite and to deny it to an-
interest
under th
cial quo;,
prived, i
economic
Clause si
of other
true, adi
Clause.
A. Rac:
In wl
racial cl;
the Equ
thing as
benefitin
B v defin:
goods, o
fornia’s
vantage
quota ai
equal tri
nying th'
an indivi
in fact a
that 16 o'
special ad;
appeal, th;
from parti
P. 2d at I
“constitut;
number of
not const i
little worn
semantic t
other because he is white must also be a denial of equal
protection of the laws. The Equal Protection Clause com
mands that state governments treat persons equally unless
their personal attributes or actions afford justification for
different treatment. A difference in race cannot be an
appropriate justification for different treatment by the
state. As Mr. Justice Douglas said in DeFunis: “ There
is no constitutional right for any race to be preferred. . . .
A DeFunis who is white is entitled to no advantage by rea
son of that fact; nor is he subject to any disability, no mat
ter what his race or color. Whatever his race, he had a
constitutional right to have his application considered on
its individual merits in a racially neutral manner.” 416
• U.S. at 336-37.
The essential arguments on behalf of Petitioner, how
ever, are really not that race is a constitutional basis for
differential state treatment or that the Equal Protection
Clause condones different governmental treatment of dif
ferent races, but rather that the commands of the Equal
Protection Clause are to be subordinated to “ higher
values,” higher than any that have a constitutional source.
The arguments for Petitioner suggest that the racial
discrimination practised by the State of California here
may be justified, despite the principles of the Equal Pro
tection Clause, for any or all of four reasons. First, be
cause what is involved here is a “ benign” racial quota,
euphemistically referred to by Petitioner and its amici as
a “ goal” .* Second, because there is a compelling state
* The brief filed on behalf of the American Bar Association goes
so far as to disavow support for “ the use of quotas in admissions
programs” (Brief, p. 20). However, ignoring an express finding
( fo o tn o te continued on n ex t p a g e)
14
?u >f equal
Jlause corn-
tally unless
ificatiou for
imot be an
ient by the
is: “ There
ferred. . . .
I age by rea
lity, no mat-
e, he had a
nsidered on
uner.” 416
tioner, how-
:al basis for
l Protection
ment of dif-
>f the Equal
“ higher
iBrxl source.
it the racial
'ifornia here
i Equal Pro-
<. First, be-
racial quota,
i its amici as
pelling state
Vssociation goes
> in admissions
express finding
/ on n e x t p a g e)
interest that overrides the command for equal treatment
.under the Equal Protection Clause. Third, because the ra
cial quota here succors the socially or economically de
prived, presumably only at the expense of the socially or
economically affluent. Fourth, because the Equal Protection
Clause should be read to protect only blacks and not those
of other races. None of these is either factually true or, if
true, adequate reason to override the Equal Protection
Clause.
A. Racial quotas are intrinsically malign.
In what sense can a racial quota be benign so that a
racial classification can be immune from the strictures of
the Equal Protection Clause? Surely, there is no such
thing as a benign racial quota if that means a measure for
benefiting some races while imposing a disability on others.
By definition a quota is a means of allocating scarce rights,
goods, or services. If there were enough places at Cali
fornia’s medical schools for all who -wished to take ad
vantage of them, there would be no need for a quota. A
quota arbitrarily—i.e., on grounds inconsistent with the
equal treatment of equals—grants benefits to some by de
nying them to others. A racial quota is a measurement of
an individual by a standard that must be wholly irrelevant
in fact as well as law to the function for which the indi-
that 16 out of 100 places in each entering class were reserved for
special admission applicants and a further finding, not challenged on
appeal, that “ applicants who are not members of a minority are barred
from participation IS Cal. 3d at 44, 132 Cal. Rep. at 6S7, 553
P. 2d at 1159, the ABA concludes that the Davis program utilized a
“ constitutionally permissible” goal and that the reservation of a fixed
number of places for which white applicants could not compete “ does
not constitute a quota” (p. 20). With such “ doublethink” it is
little wonder that goals and quotas have conic to be recognized as
semantic equivalents.
15
16
tha
pie
stri
risi
bla<
whi
mei
Sowell 1
cial adt
ate[s] I
[minori
case of i
lowing i
Action’
1976).
The.-
attested
supra, 4
in “ a
“ that b
merit,”
is not ;
Justice
William
996, 101
preferci
groups,
tutional
recipien
EatL
tween w
vidual is being measured, the benefit he is to receive, or the
hardship that is to be imposed.
A racial quota is, therefore, not benign with regard to
the individual who is deprived of benefits he would have
had were he only of the preferred racial group. But a
racial quota is not necessarily benign even for the indi
vidual or the group that is purportedly the beneficiary of
the quota. The individual admitted under the quota will
bear the stigma of one who could not “ make it” under
standards applicable to his fellow students. And fellow
students of the same race will be stigmatized by the sus
picion, however mistaken, that they were enrolled for pro
fessional study under diluted standards of admissions.
Thus, a recently graduated black law student wrote:
Traditionally, first-year law students are supposed to
be afraid, or at least awed; but our fear was com
pounded by the uncommunicated realization that per
haps we were not authentic law students and the un-
easv suspicion that our classmates knew that we were
not, and, like certain members of the faculty, had de
veloped paternalistic attitudes toward us. [McPherson,
The Black Law Student: A Problem of Fidelities,
Atlantic 93, 99 (April 1970).]
The problem was stated in broader terms in 1972, by
Professor Thomas Sowell, in his book Black Education,
Myths and Tragedies 292:
What all the arguments and campaigns for quotas arc
really saying, loud and clear, is that black people just
don’ t have it, and that they will have to be given some
thing in order to have something. The devastating im
pact of this message on black people—particularly
black young people—will outweigh any few extra jobs
that may result from this strategy. Those black peo
ple who are already competent, and who could be in
strumental in producing more competence among the
rising generation, will be completely undermined, as
black becomes synonymous—in the minds of black and
white alike—with incompetence, and black achieve
ment becomes synonymous with charity or payoffs.
Sowell reiterated his point in 1976, when he wrote that spe
cial admission policies limited to certain minorities “ cre
ate [s] the impression that the hard-won achievements of
[minority] groups are conferred benefits. Especially in the
case of blacks, this means perpetuating racism instead of al
lowing it to die a natural death. . . . ” Sowell, “ Affirmative
Action” Reconsidered, 42 Public Interest 47, 63 (Winter,
1976).
These nonbenign results of a “ benign” racial quota are
attested by Mr. Justice Douglas’s opinion in DeFunis,
supra, 416 U.S. at 343. Pointing to the “ stigma” inherent
in “ a segregated admissions process,” the implication
“ that blacks or browns cannot make it on their individual
merit,” he stated “ is a stamp of inferiority that a State
is not permitted to place on any lawyer. ” And as Mr.
Justice Brennan said in United Jewish Organizations of
Williamsburgh, Inc. v. Carey,------U.S.-------, ------, 97 S.Ct.
996, 1014, 51 L.Ed.2d 229, 251 (1977): “ Furfhc rmore, even
preferential treatment may act to stigmatize its recipient
groups, for although intended to correct systemic or insti
tutional inequities, such a policy may imply to some the
recipients’ inferiority and especial need for protection.”
Rather than contributing to the reduction of strife be
tween whites and nonwhites, a “ benign” racial quota ex-
17
V the
egard to
uld have
But a
ihe indi-
iciary of
iota will
” under
>d fellow
the sus-
for pro
missions,
e:
'posed to
■*as com-
that per-
l the un-
we were
A d de-
^^^rson,
'idelities,
1972, by
ducation,
uotas are
ople just
en some-
ating im-
rticularly
■xtra jobs
18
ben
tioi
ciet
mal
pro
bee.-
col<
nan
whi
sha
B.
the
poll
con
mit
at 1
sist
ove
See
(!!'
P a l
U.S
Eu
hub
Ani
SCO'
rac*
heh
quo
acerbates it. As Professor Nathan Glazer has told us in
his book Affirmative Discrimination 200-201 (1975):
The gravest political consequence is undoubtedly
the increasing resentment and hostility between groups
that is fueled by special benefits for some. The statis
tical basis for redress makes one great error: All
“ whites” are consigned to the same category deserv
ing of no special consideration. That is not the way
“ whites” see themselves, or indeed are, in social
reality. Some may be “ whites,” pure and simple.
But almost all have some specific ethnic or religious
identification, which, to the individual involved, may
mean a distinctive history of past—and perhaps some
present—discrimination. We have analyzed the posi
tion and attitudes of the ethnic groups formed from the
post-1880 immigrants from Europe. These groups
were not particularly involved in the enslavement of
the Negro or the creation of the Jim Crow pattern in
the South, the conquest of part of Mexico, or the near-
extermination of the American Indian. Indeed, they
settled in parts of the country where there were few
blacks and almost no Mexican Americans and Ameri
can Indians. They came to a country which provided
them with less benefits than it now provides the pro
tected groups. There is little reason for them to feel
they should bear the burden of the redress of a past
in which they had no or little part, or to assist those
who presently receive more assistance than they did.
We are indeed a nation of minorities; to enshrine some
minorities as deserving of special benefits means not
to defend minority rights against a discriminating ma
jority but to favor some of these minorities over others.
It is indeed difficult to discover where the benignity of
a racial quota is to be found. Not in the deprivation of
19
3 m
mbtedly
igroups
0 statis-
ir: All
deserv-
the way
u social
simple,
religious
ed, may
ps some
he posi-
from the
groups
■inent of
ittern in
he near
ed, they
vere few
1 Ameri-
•vided
pro-
u to feel
if a past
ist those
ihey did.
ine some
cans not
iting ma-
■r others.
lignity of
ration of
benefits to the non-preferred race; not in the stigmatiza
tion of the preferred race; not in the effects on a riven so
ciety. A racial quota cannot be benign. It must always be
malignant, malignant because it defies the constitutional
pronouncement of equal protection of the laws; malignant
because it reduces individuals to a single attribute, skin
color, and is the very antithesis of equal opportunity; malig
nant because it is destructive of the democratic society
which requires that in the eyes of the law every person
shall count as one, none for more, none for less.
B. There is no state interest that can justify
the use of a racial admissions quota.
The second argument for overriding the application of
the Equal Protection Clause here is that there is a com
pelling state interest that warrants subordination of the
constitutional command to the policy of the admissions com
mittee of the medical school of the University of California
at Davis. It is appropriate to note that this Court has con
sistently refused to credit any state policy as sufficient to
overcome the invalidity of a state’s racial classification.
See, e.g., Missouri ex rel. Gaines v. Canada, 305. U.S. 337
(1938); Oyama v. California, 332 U.S. 633 (194S); Sivcatt v.
Painter, 339 U.S. 629 (1950); McLaughlin v. Florida, 379
U.S. 184 (1964); Loving v. Virginia, 38S U.S. 1 (1967);
Hunter v. Erickson, 393 U.S. 385 (1969). There would,
indeed, be irony in any conclusion that the Fourteenth
Amendment which, in its origins, whatever its present
scope, was directed against state policies that called for
racial classifications and racial inequalities should now be
held subordinate to such state policies as mandate racial
quotas.
20
But what is the state policy here that calls for overrid
ing the Equal Protection Clause’s ban on classifications by
race? The first offered is a strange one, for it is itself
based on racial categorization. The argument is that the
black community needs more black doctors, the brown com
munity more brown doctors, etc. Not more doctors, but
more black and brown doctors. There is, of course, no evi
dence to support the argument for such a need. There is
simply no basis, for example, for the inference that raciaF
minority doctors will be more familiar with the health prob
lems of the racial minorities from which they derive. Nor
is there any basis in the record to show that training mi
nority doctors will serve to increase the amount of health
care available to racial minorities. See Leonard, Placement
and the Minority Student: New Pressures and Old Hang-
Tips, 1970 U. T ol L. B e v . 583.
The state policy of black doctors for black patients is
itself at least suspect under the Equal Protection Clause
and can. hardly afford a principled exception to the ban on
racial quotas. As Mr. Justice Douglas stated in his DeFunis
opinion, supra, 416 U.S. at 342:
The purpose of the University of 'Washington cannot
be to produce black lawyers for blacks, Polish lawyers
for Poles, Jewish lawyers for Jews, Irish lawyers for
Irish. It should bo to produce good lawyers for Amer
icans and not to place First Amendment barriers
against anyone.
The argument that the objective of the state is to afford
more health care for the poor is no better. First it fails
because, even if one assumes contrary to fact that poor
medical students will necessarily attend poor patients, there
is no basis
Such a cla.
gory of no
and underi
includes m
I f the s
versant wi
do so by o
ology dim
diseases of
doctors for
rewards fo
or even by
the poor to
do so by in-
able with \
medical sell
ate means
poverished.
C. The ra
benefit
This lac
poor, recog
U.S.137 (T
trict v. Rod
the third ai
quota but n
tion must f
precludes a
prived back
>.. werrid-
eations by
it is itself
is that the
t o w h com-
ictors, but
rse, no evi-
. There is
that racial
ealth prob-
'rive. Nor
aining mi-
t of health
Placement
Old Hang-
patients is
ion Clause
the ban on
eFunis
ton cannot
;sh lawyers
awyers for
for Amer-
\t barriers
is to afford
i rst it fails
f that poor
ients, there
is no basis for the equation of racial minorities and poverty.
Such a classification is both ovcrinclusive because the cate
gory of nonwhites include many who are certainly not poor
and underinclusive because the category of whites certainly
includes many who are poor.
If the state is concerned to train medical personnel con
versant with the diseases of the proverty-stricken, it can
do so by offering curricula in public health and epidemi
ology directed to the understanding and treatment of the
diseases of the poor. If the state is concerned to provide
doctors for the poor, there are many means for it to afford
rewards for those who will undertake to treat the poor,
or even by providing, as it in fact does, the wherewithal for
the poor to purchase needed medical services. It need not
do so by invidious racial discrimination. Race is not equat-
able with poverty and the utilization of racial quotas for
medical school admission is neither a real nor an appropri
ate means for enhancing the medical treatment of the im
poverished.
C. The racial admissions quota is not addressed to the
benefit of the socially and economically deprived.
This lack of equation between racial minorities and the
poor, recognized by this Court in James v. Valtierra, 402
U.S. 137 (1971), and San Antonio Independent School Dis
trict v. Rodriguez, 411 U.S. 1 (1973), is also the reason why
the third argument, that the quota imposed is not a racial
quota but a quota based on social and economic depriva
tion must fail. There is nothing in the ruling below that
precludes an admissions policy that favors those of de
prived backgrounds, so long as it doesn’t favor only whites
21
22
basis, rather
fortunately,
with special
is no real bo
ment or otln
Affirmant
to affirmativi
Only after tl
with racially
there be the i
are both nom
such procedu
become a livi
D. The Eqi
not affo
Finally, ii
originally wn
newly emanci
The inference
equal protect
this Court sa
4S3, 4S9 (15)5-1
of the postAV
remove all le
naturalized ii
as certainly,
spirit of the A
* DcFunis v
senting).
** See Rcpor.
at 8.
or nonwhites of deprived backgrounds. Nonwhites who are
from deprived backgrounds are admissible under the racial
quota imposed by California here. Whites who are from
deprived backgrounds do not qualify for admission under
the racial quota imposed by California here. The quota
is not fixed by measurement of social and economic depri
vation, it is measured by race and solely by race.
The suggestion that the Equal Protection Clause should
be temporarily suspended in order to determine whether
the state’s experiment has a beneficial result, is only a plea
for ignoring the commands of the Equal Protection Clause
rather than abiding them. See Lucas v. Colorado General
Assembly, 377 U.S. 713, 738 n. 31 (1964), quoted at p. 26,
infra. As Mr. Chief Justice Hughes said in Missouri ex rel.
Gaines v. Canada, 305 U.S. 337, 352 (1938): “ . . . we cannot
regard the discrimination as excused by what is called its
temporary character.” And as Mr. Justice Jackson said
in another context, “ Such power [to suspend the Constitu
tion] either has no beginning or it has no end. If it exists,
it need submit to no legal restraint.” Youngstown Sheet <&
Tube Co. v. Saxvyer, 343 U.S. 579, 653 (1952).
There is a constitutionally permissible and socially
compelling need for experimentation with non-discrimina-
tory approaches to University admissions that will afford
the disadvantaged in our society better access to a higher
education and the professions. There is a need for broader
recruitment of, and compensatory training for, individuals
who have not had adequate primary and secondary school
education, for whatever reason. Finally, there is a need to
develop university admissions criteria that can determine
the true potential of such applicants “ on an individual
L .re
racial
■ from
under
quota -
depri-
.-.hould
liether
a plea
Clause
>' eneral
'■ P- 26,
ex rel.
cannot
'.led its
in said
mstitu-
exists,
ft <&
socially
rimina-
1 afford
higher
broader
i viduals
■ school
need to
termine
lividual
basis, rather than according to racial classifications.” * Un
fortunately, Petitioner has chosen instead to experiment
with special admissions programs based on race, and there
is no real body of experience dealing with a disadvantage-
ment or other nonracial approach to such programs.**
Affirmance of the judgment below will not mean an end
to affirmative action. Rather it will mean a true beginning.
Only after this Court had made clea.r that experimentation
with racially discriminatory programs is impermissible will
there be the impetus to develop admissions procedures that
are both uondiscriniinatory and humanitarian; only through
such procedures can equal opportunity in higher education
become a living reality for all people.
D. The Equal Protection Clause does
not afford rights to blacks only.
Finally, it is argued that the Equal Protection Clause
originally was written primarily for the protection of the
newly emancipated blacks. Of this there can be no doubt.
The inference sought to be drawn, that it does not afford
equal protection to others, however, is without merit. As
this Court said in Brown v. Board of Education, 347 U.S.
4S3, 489 (1954) (“ Brown I ” ) : “ The most avid proponents
of the post-War Amendments undoubtedly intended them to
remove all legal distinctions among ‘ all persons born or
naturalized in the United States.’ Their opponents, just
as certainly, were antagonistic to both the letter and the
spirit of the Amendments and -wished them to have the most
* DeFunis v. Odegaard, 416 U.S. 312, 341 (Douglas, J., dis
senting).
** See Report on Special Admissions at Boalt Hall after Bakke
at 8.
limited effect. What others in Congress and the state legis
latures had in mind cannot be determined with any degree
of certainty.” See also Harper v. Virginia State Bd. of
Elections, 3S3 U.S. 6G3, 669-70 (1966); Bickel, The Original
Understanding and the Segregation Decision, 69 H a k v . L.
Rev. 1 (1955).
Even if one takes some Radical Republican minority’s
expressions as the voice of the Equal Protection Clause,
however, there is no evidence that the Equal Protection
Clause can still be interpreted to protect only blacks. For
such a construction has the Orwellian flavor of requiring
that blacks be treated as equal to members of all other races,
but no person of another race would be constitutionally en
titled to equality with the blacks. Surely it is too late in the
day for such an interpretation of the Equal Protection
Clause. “ [W]e cannot turn the clock back to 1868 when the
Amendment was adopted. . . . ” Brown I, 347 U.S. at 492.
For as this Court said in Buchanan v. Warley, 245 U.S. 60,
76 (1917): “ WTiile a principal purpose of the [Fourteenth]
Amendment was to protect persons of color, the broad lan
guage used was deemed sufficient to protect all persons,
white or black, against discriminatory legislation by the
States.”
Asians, e.g., Tick Wo v. Hopkins, 118 U.S. 356 (1SS6);
Oyama v. California, 332 U.S. 633 (1948); corporations,
e.g., Smith v. Cahoon, 283 U.S. 553 (1931); aliens, e.g.,
Graham v. Richardson, 403 U.S. 365 (1971); Sugarman v.
Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717
(1973); illegitimates, e.g., Levy v. Louisiana, 391 U.S. 68
(1968); Gomez v. Perez, 409 U.S. 535 (1973); nonresidents,
e.g., Me.
(1974);
618 (196
within tl
state dis'
1866 Civ
of Senai
black mi
Sess. (18
More'
to a pers
sular mil
gation ca
discrimir
vocation
this Coui
are to be
204-08 (:
(1964).
A stal
Not only
states to
equal” dr
invalid. '
ual, a “ p
tioner’s r
that he wr
Missouri <
Where
of the Eq
degree
Bd. of
riginal
V R V . L.
ority’s
( 'lause,
tcction
For
pairing
r races,
illy en-
e in the
itcction
hen the
at 492.
US. 60,
tcenth]
lan-
tcrsons,
by the
(1886);
rations,
ns, e.g.,
nnan v.
rj.S. 717
U.S. 68
■sidents,
e.g., Memorial Hospital v. Maricopa County, 415 U.S. 250
(1974); new residents, e.g., Shapiro v. Thompson, 394 U.S.
618 (1969), and many others, most of them whites, all come
within the protection of the Equal Protection Clause against
state discrimination. The Equal Protection Clause, like the
1866 Civil Rights Act from which it derives, in the words
of Senator Trumbull, “ applies to white men as well as
black men.” Congressional Globe 599, 39th Cong., 1st
Sess. (1866).
Moreover, the right to equal protection does not come
to a person because he is a member of “ a discrete and in
sular minority.” Such membership, as in school desegre
gation cases, may establish the fact that he was among those
discriminated against. It cannot be a requirement for in
vocation of the Equal Protection Clause unless most of
this Court’s interpretations of the meaning of that Clause
are to be overruled. See, e.g., Balcer v. Carr, 369 U.S. 186,
204-08 (1962); Reynolds v. Sims, 377 U.S. 533, 562-68
(1964).
A state’s racial classification is necessarily “ suspect.”
Not only has this Court found all racial classifications by
states to be suspect, since the demise of the “ separate but
equal” doctrine, it has held them all to be constitutionally
invalid. The constitutional right is the right of an individ
ual, a “ person,” not the right of a class. “ Here, peti
tioner’s right was a personal one. It was as an individual
that he was entitled to the equal protection of the laws.. . . ”
Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351 (1938).
Where, as here, a state sought to justify its violation
of the Equal Protection Clause on the ground that it was
26
iSSl
\a
necessary for the protection of “ insular minorities,” this
Court gave the argument short shrift: “ Also, the court
below stated that the disparities from population-based
senatorial representation were necessary in order to pro
tect ‘ insular minorities’ and to accord recognition to the
‘ state’s heterogeneous characteristics.’ Such rationales
are, of course, insufficient to justify the substantial devia
tions from population in the apportionment of seats in the
Colorado Senate under Amendment No. 7, under the views
stated in our opinion in Reynolds [v. Sims, 377 U.S. 533
(1964)].” Lucas v. Colorado General Assembly, 377 U.S.
713, 73S n.31 (1964).
Indeed, the history of this Court’s adjudications on the
meaning of the Equal Protection Clause for the past quar
ter century disposes of the possibility of adopting the
“ blacks only” interpretation offered on behalf of the Pe
titioner here. The expression by this Court now of a con
cept of a black monopoly on the Equal Protection Clause
must destructively tear the fabric that this Court has so
carefully woven in recent years, woven for the purpose of
establishing black equality but not for the purpose of es
tablishing black privilege. Neither history, nor precedent,
nor common sense can support such a judicial retreat from
the established meaning of the Equal Protection Clause.
The (
utilized 1
The pr
is not onh
command ;
Act, 42 U.:
demnation
. . . or nail
2000d.
Thus, 4:
All
lishruc
of any
nation:
is or p
dinanci
agency
Unlike §201
public acco
“ any estab
university
Creek Cons■
1975) (“ es
clearly fall
crimination
No i
of race,
particip
this
lie court
on-based
r to pro-
m to the
ationales
al devia-
■ ts in the
he views
U.S. 533
377 U.S.
I l l
The Civil Rights Acts prohibit the racial quota
utilized by Petitioner in this case.
The principle of nondiscrimination on the basis of race
is not only a mandate of the Constitution but a legislative
command as well. The provisions of the 1964 Civil Rights
Act, 42 U.S.C. §§2000a et seq., are of a piece in their con
demnation of discrimination “ on the ground of race, color,
. . . or national origin.” 42 U.S.C. §§2000a, 2000a-l, 2000b,
2000d.
is on the
ist quar-
iting the
f the Pe-
of a con-
u Clause
,-t has so
^fc'ise of
of es-
'recedent,
eat from
Clause.
Thus, 42 U.S.C. §2000a-l provides:
All persons shall be entitled to be free, at any estab
lishment or place, from discrimination or segregation
of any kind on the ground of race, color, religion, or
national origin, if such discrimination or segregation
is or purports to be required by any law, statute, or
dinance, regulation, rule, or order of a State or any
agency or political subdivision thereof.
Unlike §2000a, §2000a-l, does not speak of “ any place of
public accommodation, as defined in this section,” but of
“ any establishment or place.” Whether or not a public
university is an “ establishment,” cf. Brennan v. Goose
Creek Consolidated hid. School Dist., 519 F.2d 53 (5th Cir.
1975) (“ establishment” for purposes of F.L.S.A.), it
clearly falls within the interdiction against racial dis
crimination contained in 42 U.S.C. §2000d:
Uo person in the United States shall, on the ground
of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be sub-
w
m
jectcd to discrimination under any program or activity
receiving Federal financial assistance.
This Court has made it clear that under the Civil Rights
Acts, exclusion even from a private school on the ground
of race is a violation of federal law. Runyon v. McCrary,
427 U.S. 160 (1976). Since the university involved here is
a public one, the ruling in Runyon is a fortiori applicable
to it. See id. at I6811.8. That the Civil Rights laws protect
whites as-well as racial'minorities from discrimination on
the basis of race was established by this Court in McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976).
A decision by this Court that the actions of the Uni
versity of California in establishing its racial quota for
admission to the medical school at Davis violates the civil
rights laws of the United States would avoid the necessity
for any constitutional adjudication. As Mr. Justice Bran-
deis said in his classic concurring opinion in Ashwander v.
T.V.A., 297 U.S. 288, 347 (1936): “ The Court will not pass
upon a constitutional question although properly presented
by the record, if there is also present some other ground
upon which the case may be disposed of. This rule has
found most varied application. Thus, if a case can be
decided on either of two grounds, one involving a consti
tutional question, the other a question of statutory con
struction or general law, the Court will decide only the
latter.”
The esse
is not that t
Protection (
be bent, str
asserted to
Even if the 1
the fundann
race is an in
to base stai
public schor
missed. Th:
constitution
ment officer:
what they i
remind the
another casi
ends justific
Sawyer, 343
it would plr
at least a st>
Frankfurter
accretion of
does come,
unchecked c
the most dis
The “ nn
likewise “ a
primatur of
steps “ in tl
The langua
Court, and
, "\
L .vity
l Rights
ground
IcCrary,
l here is
iplicable
; protect
ation on
cDonald
the Uni-
uota for
the civil
necessity
r'e Bran-
ctnder v.
not pass
■ resented
«ound
s has
■ can be
a consti-
ory con-
only the
Conclusion
The essential argument made on behalf of the Petitioner
is not that the racial quota here does not violate the Equal
Protection Clause but rather that the Constitution should
be bent, stretched, or broken in order to achieve what is
asserted to be a worthy end in this particular instance.
Even if the worthiness of the ends were to be acknowledged,
the fundamental principle established by this Court that
race is an invidious as well as an irrelevant factor on which
to base state action—certainly in terms of admissions to
public schools and universities—can not be so lightly dis
missed. This nation has just been through a devastating
constitutional crisis that resulted from actions of govern
ment officers who would justify unconstitutional means by
what they perceived as desirable ends. Suffice it here to
remind the Court of Mr. Justice Jackson’s statement in
another case in which the essential argument was that the
ends justified the means, Youngstown Sheet <& Tube Co. v.
Sawyer, 343 U.S. 579, 653 (1952): “ l a m not alarmed that
it would plunge us straightway into dictatorship, but it is
at least a step in that wrong direction.” Or, in Mr. Justice
Frankfurter’s words in the same case, id. at 594: “ The
accretion of dangerous power does not come in a day. It
does come, however slowly from the generative forces of
unchecked disregard of the restrictions that fence in even
the most disinterested assertion of authority.”
The “ numerus clausus” imposed by Petitioner here is
likewise “ a step in that wrong direction.” And the im
primatur of this Court would afford legitimacy to further
steps “ in that wrong direction” toward a quota society.
The language of the Constitution, the decisions of this
Court, and its acknowledgment of the need to maintain
29
“ the restrictions that fence in even the most disinterested
assertion of authority,” all call for affirmance of the judg
ment below.
As Professor Bickel said, Bickel, supra, at 133, “ [A]
racial quota derogates the human dignity and individuality
of all to whom it is applied; it is invidious in principle as
well as in practice. Moreover, it can as easily be turned
against those it purports to help. The history of the racial
quota is a history of subjugation, not beneficence. Its evil
lies not in its name but in its effect; a quota is a divider of
society, a creator of castes, and it is all the worse for its
racial base, especially in a society desperately striving for
an equality that will make race irrelevant.”
Respectfully submitted,
Philip B. Kurland
Daniel D. Polsby
Rothschild, Barry & Myers
Two First National Plaza
Chicago, Illinois 60603
(312) 372-2345
Attorneys for Amici Curiae
Larry M. Lavinsky
Arnold Forster
Anti-Defamation League of B'nai B’rith
315 Lexington Avenue
New York, New York 10016
Leonard Greenwald
Council of Supervisors and Adminis
trators of the City of New York,
Local 1, AFSA, AFL-CIO
80 Eighth Avenue
New York, New York 10011
Davtd I. Ashe
Jewish Labor Committee
25 East 78th Street
New York, New York 10021
Dennis Rapps
National Jewish Commission on
Law and Public Affairs ( “ COLPA” )
66 Court Street
Brooklyn, New York 11201
Renato R. Biribin
Anthony J. Fornelli
UNICO National
72 Burroughs Place
Bloomfield, New Jersey 07003
Of Counsel
R
Howard L. Greenberger
Samuel Rabinove
American Jewish Committee
165 East 56th Street
New York, New York 10022
nr the
GJrntrt nf tip Ini&ii §tatrs
October Term, 1977
No. 76-811
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Petitioner,
v.
ALLAN BAKKE, Respondent.
On Writ of Certiorari to the Supreme Court of California
BRIEF OF AMERICAN JEWISH COMMITTEE,
AMERICAN JEWISH CONGRESS,
HELLENIC BAR ASSOCIATION OF ILLINOIS, ITALIAN-AMERICAN
FOUNDATION, POLISH AMERICAN AFFAIRS COUNCIL, POLISH
AMERICAN EDUCATORS ASSOCIATION, UKRAINIAN CONGRESS
COMMITTEE OF AMERICA (CHICAGO DIVISION) AND
UNICO NATIONAL, AMICI CURIAE
Themis N. Anastos
Philip S. Makin
Hellenic Bar Association of Illinois
120 West Madison Street
Chicago, Illinois 60602
Anthony P. Krzywicki
Polish American Affairs Council
1600 Philadelphia
National Bank Building
Broad and Chestnut Streets
Philadelphia, Pennsylvania 19107
Julian E. Kulas
Ukrainian Congress Committee
of America (Chicago Division)
2236 West Chicago Avenue
Chicago, Illinois 60622
Alan M. Dershowitz
Of Counsel
Attorneys for Amici Curiae
Abraiiam S. Goldstein
Nathan Z. Dershowitz
American Jewish Congress
15 East 84th Street
New York, New York 10028
(212) S79-4500
Arthur J. Gajarsa
Italian-American Foundation
1019-19th Street. N.W.
Washington, D. C. 20036
T iiaddeus L. Kowalski
Polish American Educators
Association
120 South LaSalle Street
Chicago, Illinois 60602
Anthony J. Fornelli
LTnico National
188 West Randolph Street
Chicago, Illinois 60601
l’AHH
Statement of the Case.................................................. 2
1. Introduction .................................................... 2
2. The Medical School’s Admissions Policy...... 3
3. The Regular Admissions Program................. 4
•4. The Special Admissions Program ................ 5
5. Bakke’s Application........................................ 6
Question to Which This Brief Is Addressed............... 8
Interest of the Am ici.................................................... 8
Summary of Argument................................................... 11-
Argument
Point One—Racial discrimination by a government
agency can be upheld, if at all, only upon a
showing that it was compelled by pressing pub
lic necessity ........................................................ 15
A. Equal Protection as an Individual Right .... 15
B. The Presumptive Illegality of Racial Dis
crimination ................................................ 16
C. Applicability of the Equal Protection Prin
ciple to All Forms of Racial Discrimination 19
D. Quotas and Reverse Discrimination............ 21
Point Two—Petitioner has failed to show a pressing
public necessity for its admitted course of ra
cial discrimination ............................................. 25
A. Petitioner’s Claim of Pressing Public N’cc-
■ essity ............................................................ 25
t M
'M
.:
\
PAGE
B. The Harmful Effects of Racial Quotas in
University Admissions ............................ 4 1
C. Statutory Condemnation of Racial Quotas 46
D. Violation of Individual Rights ................ 5 0
Point Three—The legitimate objectives of peti
tioner’s admission policy can and should be
achieved without making admission depend to
any extent on race...........................
Point Four—The racial preferential treatment pol
icy of the Medical School is not sanctioned bv
past decisions dealing with correction of illegal
discrimination ...................................
A. The School Cases ...........................
B. Employment Cases
C. The Other Cases ..............
TAB1
Cases:
Anderson v. San Fi
357 F. Supp. 248
Associated Gen. Cont
490 F. 2d 9 (1st
(1974) ............
Bridgeport Guardiai
sion, 482 F. 2d 1
Brooks v. Beto, 366 1
Brown v. Board of E
(1954) .............
Buchanan v. Warley,
Castro v. Beecher, 4'
Contractors Ass’n ot
bor, 442 F. 2d 1
U.S.. 854 .......
DcFunis v. Odcgaani
DeFunis v. Odogaan
(1973), vacated <
DeLeo v. Board of K
rado, Index No.
Flanagan v. Preside!)
versity, 417 F. S
Florida ex rel. Hawk:
413 (1956) ....
Franks v. Bowman Ti
747 (1976) .....
Fronticro v. Richard.'
Gautreaux v. Chicn;
Supp. 736 (N.D.
Goniilliou v. Lightfoo
Goss v. Board of Edu
Conclusion
111
PAGE
PAGE
otas in
........... . 41
Quotas 46
........... 50
■f peti-
>uld be
pend to
.......... 52
'nt pol-
> tied by
f illegal
............ 59
........... 59
......... 64
........... 67
q ..... 69
TABLE OF AUTHORITIES
Cases:
Anderson v. Sail Francisco Unified School District,
357 F. Supp. 24S (N.D. Cal. 1972) ..................24, 47,43
Associated Gen. Contractors of Mass. Inc. v. Altshuler,
490 F. 2d 9 (1st Cir. 1973), cert. den. 416 U.S. 957
(1974) ................................................................. 64
Bridgeport Guardians, Inc. v. Civil Service Commis
sion, 432 F. 2d 1333 (2nd Cir. 1973) .................... 65
Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966) ................ 67
Brown v. Board of Education of Topeka, 349 U.S. 473
(1954) .......................................................20,29,36,67
Buchanan v. War ley, 245 U.S. 60 (1917) .................... 20
Castro v. Beecher, 459 F. 2d 725 (1972) .................... 65
Contractors Ass’n of Eastern Pa. v. Secretary of La
bor, 442 F. 2d 159 (3d Cir. 1971), cert. den. 404
U.S. 854 ..................... r...................................... 64
DeFunis v. Odcgaard, 416 U.S. 312 (1974) ......21, 27, 43, 47
DeFunis v. Odcgaard, S2 Wash. 2d 11, 507 P. 2d 1169
(1973), vacated as m oot, 416 U.S. 312 (1974) ...... 34
DeLeo v. Board of Regents of the University of Colo
rado, Index No. 2745-5, Colorado S. Ct.............. 42
Flanagan v. President & Directors of Georgetown Uni
versity, 417 F. Supp. 377 (D.D.C. 1970) .............24,48
Florida ex rel. Hawkins v. Board of Control, 350 U.S.
413 (1956) .......................................................... 23
Franks v. Bowman Transportation Company, 424 U.S.
747 (1976) .......................................................... 8̂, 64
Frontiero v. Richardson, 411 U.S. 677 (1973) ............. IS
Gautreaux v. Chicago Housing Authority, 304 F.
Supp. 736 (N.D. 111. 1969) ............................. ...... 67
Gomilliou v. Lightfoot, 364 U.S. 339 (1960) ............... 25
Goss v. Board of Education, 373 U.S. 683 (1963) ...... 16
I V
Green v. County School Board, 391 U.S. 430 (196S)
Hughes v. Superior Court of California, 339 U.S. 460
(1950) ..........................
Kirkland v. Hew York State Dept, of Correctional
Services, 520 F. 2d 420 (2nd Cir.), reh. den. 531
F. 2d 5 (1975), cert. den. 97 S. Ct. 1122 (1976)
McCabe v. Atchison, Topeka & Santa Fe Railway, 235
U.S. 151 (1914) ...............................
McDonald v. Santa Fe Trail Transportation Co , 427
U.S. 273 (1976) ...................................
McLaughlin v. Florida, 379 U.S. 184 (1964) .. 17, IS,:
McLaurin v. Oklahoma State Regents, 339 U S ' 637
(1950) ................................
Mitchell
(1974)
Mulkcy v. Reitman, 64 Cal. 2d 529, 413 P ‘\1 S>5
(1966), aff’d 3S7 U.S. 369 (1967) ....................“
NAACP v. Imperial Irrigation District, No. 70-302-
w D-C-’ Southern District of California)
North Carolina State Board of Education v. Swann
ano TTQ ,10 / i m I N o w a n n ,
PAOB
61 Otero v. New Y
19 1122 (2d C
.46, 47 Oyama v. Calif
15 Pasadena Citv
67 U.S.---------(
17, 20 Patterson v. A
1
23
257 (4th Ci
Porcelli v. Titu
IS
64
Shelley v. Krai
Shield Club v.
65
(N.D. Ohir
Sibley Memori;
(D.D.C. 19'
Southern Illino
16,17 6S0 (7th C
20, 21
Steele v. Louis
(1944) ...
15
Swann v. Chari
402 U.S. 1
Sweatt v. Paint
19, 49 Teamsters (IB'
20, 21 396 (1977)
15
Trans World .
---------, 53 L.
57 Truax v. Raich.
67
15 United Jewish
66 Carey,-------
25
United States
U.S. 144 ( !
35
United Stales v
(9th Cir. 19
United States v
. 61
hood of El
Cir. 1973)
Sf&gSl
PAGE
0 (1968) .... 61
19
*71) .......... 46,47
(1950) ...... 15
67
(1943) ...... 17, 20
39 U.S-460
23
18
.J. 1970) .... 64
orrectional
h. den. 531
2 (1976) .... 65
1944) ...... 16,17
.... 16,18, 20, 21
ailway, 235
15
W To., 427
19, 49
■ ...17,18, 20, 21
9 U.S. 637
15
■) ............. 57
67
1) .................. 15
66
P. 2d 825
25
Jo. 70-302-
California) 35
v . Swann,
. 61
Otero v. New York City Housing Authority, 4S4 F. 2d
1122 (2d Cir. 1973) ..... :....................................... 67
Oyama v. California, 332 U.S. 633 (1948) .................. 19
Pasadena City Board of Education v. Spangler,-----
U.S.----- - (1976), 44 USLW 5114....................... 61
Patterson v. American Tobacco Company, 535 F. 2d
257 (4th Cir. 1976), cert. den. 97 S. Ct. 314 (1976) 64
Porcclli v. Titus, 431 F. 2d 1254 (3d Cir. 1970) ......... 67
Shelley v. Kracmcr, 334 U.S. 1 (194S) ....................... 15, 20
Shield” Club v. City of Cleveland, 370 F. Supp. 251
(N.D. Ohio 1973) ............................................... 65
Sibley Memorial Hospital v. Wilson, 488 F. 2d 1338
(D.D.C. 1973) ....................................................... 33
Southern Illinois Builders Ass’n v. Ogilvic, 471 F. 2d
680 (7th Cir. 1972) .............................................. 64
Steele v. Louisville & Nashville R. Co., 323 U.S. 192
(1944) ................................................................. 16
Swann v. Charlottc-Mccklcnburg Board of Education,
402 U.S. 1 (1971) ................................................ 61
Sweatt v. Painter, 339 U.S. 629 (1950) ..................... 15, 23
Teamsters (IBT) v. U.S.,----- U.S. -------, 52 L. Ed.
396 (1977) .......................................................... 49,50
Trans World Airlines, Inc. v. Hardison, ----- U.S.
----- , 53 L. Ed. 113 (1977) ................................... 19
Truax v. Raich, 239 U.S. 33 (1915) ............................. 23
United Jewish Organizations of Williatnsburgh v.
Carey,----- U.S.------ , 97 S. Ct. 1251 (1976) ... 6 S, 69
United States v. Cnrolene Products Company, 304
U.S. 144 (193S) ................................................... 2 0
United States v. Ironworkers Local S6 , 443 F. 2d 544
(9th Cir. 1971), cert. den. 404 U.S. 984 ................ 64
United States v. Local Union No. 212, Int’l Brother
hood of Electrical Workers, 472 F. 2d 634 (6 th
Cir. 1973) ............................................................ 64
V
PAGE
Coleman, F r o m U v
Press, “ Prefer
Nov. 15, 1973
American Jewish C'
A T a sk F o rc e 1
Fleischinan, L e t ’s i
ary 1974 .......
T h e Gallup Opinion
G Inzer, T h e F e w IT
Grodinz, A m erica n s
anese E va cu a ti•
Kaufert, Martinez
Study of Mexic
50 Journal o f
1975) .............
Odegaard. M in o rity
P a s s iv ity to P o
O’Neil, “ Prcferenti;
to Legal Educal
Raab, “ Quotas by .
January 1972
Report of Progros
Against Discri
Inc.” (1948), p.
Rostov, T h e Japan •
54 Yale L.J. 481
Rustin, “ In Memor\
from the A. Phi
29, 1973 ..........
Sowell, Black E d n a
Ten Brock, Barnbar
the C onstitution
Thompson, Curbing
Shortage, 49 Joi
Wilkins, New York i
United States v. Wood, Wire and Metal Lathers Inter
national Union, Local No. 4G, 471 F. 2d 408 (2nd
PAGE
Cir. 1973), cert. den. 412 U.S. 939 (1973) .............64, 65
Vulcan Society v. Civil Service Commission, 360 F.
Supp. 1265 (S.D.N.Y. 1973), a ff ’d 490 F. 2d 387
(2d Cir. 1973) ..................................................... 65
Washington v. Davis, 436 U.S. 229 (1976) ................ 64
Weiner v. Cuyahoga Community College District, 19
Ohio St. 2d 35 (1969) (249 N.E. 2d 907) ............. 64
Yick Wo. v. Hopkins, US U.S. 356 (1886) .................. 19
Statutes:
42 U.S.C. Sec. 2000d ................................................. 48
42 U.S.C. Sec. 2000c-2(e) ......................................... 46
42 U.S.C. Sec. 2000e-2(a) ( 1 ) .................................... 19
42 U.S.C. Sec. 2000e-2(j) .......................................... 46,47
42 U.S.C. Sec. 2000e-15 ............................................. 46
Executive Order:
Executive Order 11246, 30 C.F.R. 12319, as am ended
32 C.F.R. 14303, 34 C.F.R. 12985 ...... 64
Other Authorities:
Barta, Report prepared by The Institute of Urban
Life for the National Center for Urban Ethnic
Affairs (1973) ..................................................... 42
Calm, T h e F ir s tn e ss o f the F ir s t A m en d m en t, 65 Yale
L.J. 464 (1956) ................................................... 20
Calm, T h e S en se o f In ju stice , New York University
Press (1949), p. 15 .............................................. 4 3
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IN THE
Bvupxzm G J m ir t at t h ? lU tt ite ii S t a t e s
October Term, 1977
No. 76-811
T he Regents of the U niversity of California,
Petitioner,
v.
Allan Bakke,
Respondent.
On Writ of Certiorari to the
Supreme Court of California
BRIEF OF AMERICAN JEWISH COMMITTEE,
AMERICAN JEWISH CONGRESS,
HELLENIC BAR ASSOCIATION OF ILLINOIS, ITALIAN-
AMERICAN FOUNDATION, POLISH AMERICAN
AFFAIRS COUNCIL, POLISH AMERICAN EDUCATORS
ASSOCIATION, UKRAINIAN CONGRESS COMMITTEE
OF AMERICA (CHICAGO DIVISION) AND UNICO
NATIONAL, AMICI CURIAE
This brief is submitted with the consent of the parties.
SgjjfiBBS
{SSSftgSj
If
the trial court’s ch
that it had improp<
The University
meat of the decis
that, given Bakke'
ess, it would be un;
Bakke would not ha
no special admissi
The California Sip
and modified its ii
admitted.
On February 22
2. The Medical St
The Medical Sci
Davis opened in !
students. Of the i
cording to the Unh
and three were accc
applicants- applied
silent as to whethei
ered any special pr
number of minorii.
during these two ye
the breakdown of s
nomically disadvan
thereupon establislu
program is being ci
1. Of the minority :
and eighteen were Asiai
2. Two of the six bl
who applied were accep
Statement of the Case
1. Introduction
In 1973 and again in 1974, respondent-Allan Bakke, ap
plied for and was denied admission to the recently estab
lished Medical School of the University of California at
Davis (“ the Medical School” ). Bakke thereafter brought
suit, claiming that he had been denied admission solely by
reason of his race. The Regents of the University of Cali
fornia (“ the University” ), on behalf of the Medical School,
denied Bakke’s claims and filed a cross-complaint for a de
claratory judgment that the admissions policy of the Med
ical School was lawful.
The trial court found that the Medical School’s admis
sions policy, through its special admissions program, uti
lized a racial quota and had discriminated against Bakke
because of his race. It enjoined the Medical School from
considering respondent’s “ race or that of any other ap
plicant in passing upon his application for admission.”
The trial court also determined that Bakke had not carried
the burden of proving that he would have been admitted
had the Medical School not discriminated, and denied that
part of his petition seeking an injunction ordering his
admission.
The University appealed the trial court’s holding that
the Medical School’s admissions policy was unconstitu
tional and Bakke appealed the trial court’s denial of an
order requiring his admission. On September 26, 1976,
the Supreme Court of California, with one judge dissent
ing, affirmed the trial court’s judgment that'the Medical
School’s admissions policy violated the Equal Protection
Clause of the Fourteenth Amendment. It also reversed
2
'ase
ont Allan Bakke, ap-
o the recently estab-
ity of California at
e thereafter brought
' admission solely by
e University of Oali-
f the Medical School,
s-complaint for a de-
s policy of the Med-
lical School’s admis
sions program, uti-
tated against Bakke
Medical School from
at of any other ap-
• for admission.”
i had not carried
have been admitted
ted, and denied that
aiction ordering his
court’s holding that
!icy was unconstitu-
court’s denial of an
September 26, 1976,
li one judge dissent-
nit that the Medical
he Equal Protection
it. It also reversed
the trial court’s denial of an injunction to Bakke, finding
that it had improperly allocated the burden of proof.
The University sought rehearing and a stay of enforce
ment of the decision. In that application, it conceded
that, given Bakke’s high rating in the admissions proc
ess, it would be unable to sustain its burden of proof that
Bakke would not have been admitted eveii if there had been
no special admissions program for minority applicants.
The California Supreme Court denied a stay or rehearing
and modified its initial opinion to direct that Bakke be
admitted.
On February 22, 1977, this Court granted certiorari.
2. The Medical School’ s Admissions Policy
The Medical School at the University of California at
Davis opened in 196S. In its first year, it accepted 50
students. Of the 564 who applied, 22 were classified ac
cording to the University’s records as minority applicants,
and three were accepted.1 The following year, 34 minority
applicants applied and 14 were accepted." The record is
silent as to whether the University engaged in or consid
ered any special programs directed toward increasing the
number of minority applicants or minority acceptances
during these two years. Further, the record is silent as to
the breakdown of students in terms of culturally or eco
nomically disadvantaged backgrounds. The University
thereupon established its special admissions program which
program is being challenged by this action.
1. Of the minority applicants, three were blacks, one was Chicano
and eighteen were Asians.
2. Two of the six blacks who applied and one of the tour Chicanos
who applied were accepted.
For 1973 and 1974, there were 100 places in the entering
class of the Medical School. Applications for these places
were processed under one of two sets of procedures con
taining separate sets of standards. Applicants processed
through the regular admissions program competed for S4
of the places in the entering class. Applicants processed
through the special admissions program competed for Id
of the places in the entering class. The faculty by resolu
tion adopted the immber 16. The record docs not reveal
the basis for this choice.
3. The Regular Admissions Program
For the years 1973 and 1974, the University received
2,464 and 3,737 applicants respectively. Over-all grade-
point average (OGPA) and scores on the Medical College
Admissions Test (MCAT) were the major factors con
sidered for admission. An applicant with an over-all grade
point average below 2.5 on a scale of 4.0 was summarily
rejected. Those applicants with higher averages were
evaluated and some were selected for interviews.
In 1973, applicants invited for interviews were inter
viewed by a faculty member of the Admissions Committee.
In 1974, a student member of the Committee also inter
viewed applicants. Following the interview, each appli
cant was rated. The ratings considered the applicant’s
overall grade-point average, his grade-point average in
science courses (“ SGPA” ), his medical admissions test
scores, his letters of recommendation, and the interviewers’
evaluations. The ratings were then ranked and letters of
acceptance were sent out based primarily upon this
ranking.
4 .
4. The Spc
The spc
1969, purpo
students at
only to im
groups. N
A special si
marily froi
from minor
such applic.
In 1973.
their appli<
crcd by a
tionally dh
formula an
of the phr;
prepared 1
Service, api
to be consul
themselves
Wliito/Can
Asian Ann
(Commonv
extended ti
3. For i!
who were n
4. Appa-
the applicaii
kept for 197.
nomic Disaci
from these st
that they we
cants.
4. The Special Admissions Program
The special admissions program was implemented in
1969, purportedly to increase the number of disadvantaged
students attending the University. In fact, it was open
only to members of stated racial and ethnic minority
groups. No whites were admitted under this program.3
A special subcommittee composed of faculty members pri
marily from minority backgrounds and students entirely
from minority backgrounds were responsible for processing
such, applicants.
In 1973, the practice was for applicants to indicate on
their application form whether they wanted to be consid
ered by a special committee as “ economically or educa
tionally disadvantaged.” The form did not define this
formula and the University never reduced any definition
of the phrase to writing. On the 1974 application form,
prepared by the American Medical College Application
Service, applicants, in addition to being asked if they wished
to be considered minority applicants, were asked to describe
themselves as “ Black/Afro-American, American Indian,
White/Caucasian, Mexican/American or Chicano, Oriental/
Asian American, Puerto Rican (Mainland), Puerto Rican
(Commonwealth), Cuban or other.” ' Invitations were then
extended to such applicants for interviews by the subcom-
3. For the years 1971 through 1974, 272 white applicants applied
who were regarded by the University as disadvantaged. 4
4. Apparently, the University did not keep statistics keyed to
the application forms. Rather, applications and acceptances were
kept for 1973 and 1974 in categories of “ Black. Chicano, White Eco
nomic Disadvantaged, American Indian and Asian." It would appear
from diese statistics that either no Puerto Ricans or Cubans applied or
that they were not considered by the University as minority appli
cants.
5
it me entering
r these places
ocedures con-
mts processed
upeted for S4
mts processed
upeted for 16
dty by resolu-
oes not reveal
■rsity received
»vor-all grade-
mdical College
r factors con-
over-all grade
•as summarily
iverages were
—̂/
vs were inter
ms Committee,
tee also inter-
tv, each appli-
* he applicant’s
int average in
Amissions test
•e interviewers’
i and letters of
ily upon this'
SGP
Respondent 3.45
Regular
Program
(Average) 3.51
Regular 2.57
Program to
(Range) 4.00
Special
Program
(Average) 2.62
Special 2.11
Program to
(Range) 2.93
SGP.
Respondent 3.45
Regular
Program
(Average) 3.36
Regular 2.50
Program to
(Range) 4.00
Special
Program
(Average) 2.42
Special 2.20
Program to
(Range) 3.89
mittee without regard to the 2.5 summary rejection stand
ard applicable to those applying under the general admis
sions program.
Following the interviews, the subcommittee rated its
special applicants and made recommendations to the full
Admissions Committee. The Admissions Committee gen
erally followed the subcommittee’s recommendations. The
subcommittee continued to make recommendations until all
16 places reserved for minority applicants were tilled.
For 1973, students were admitted under the special
program with overall grade-point averages as low as 2.11.
In 1974, the low was 2.21. These ligures wese substantially
below the figures applicable to those admitted under the
regular program and even well below the summary rejection
point of 2.5 applicable to those seeking admission under that
program.
5. Bakke’s Application
In 1973 and 1974, when Balcke submitted his applications
for admission to the Medical School, he did not apply for
the special admissions program. His overall grade-point
(OGPA) average was 3.51 (on a scale of 4.0), with an aver
age of 3.45 in science courses (SGPA). His Medical Col
lege Admission Test percentile (MCAT) scores wore:
Verbal—9 6%; Quantitative—94%; Science—97%; and
General—72%. A comparison between Bakke and those
admitted under the regular program and those admitted
under the special program is shown by the following chart:
mary rejection stand-
ler the general admis-
ubcommittee rated its
nendations to the full
-sions Committee gcn-
ecommendations. The
ommendations until all
icants wore filled.
ted under the special
v-orages as low as 2.11.
ures wese substantially
se admitted under the
the summary rejection
ig admission under that
1973
.cted his applications
1, he did not apply for
'Lis overall grade-point
le of 4.0), with an avcr-
1’A). His Medical Col-
iMCAT) scores were:
; Science—97 % ; and
ween Bakke and those
am and those admitted
i by the following chart:
SGPA OGPA
Verbal
MCAT percentile
Quantitative Science General
Respondent 3.45 3.51 96 94 97 72
Regular
Program
(Average) 3.51 3.49 81 76 83 69
Regular
Program
(Range)
2.57
to
4.00
2.81
to
3.99
Special
Program
(Average) 2.62 2.SS 46 24 35 33
Special
Program
(Range)
2.11
to
2.93
2.11
to
3.76
1974
SGPA OGPA
Verbal
MCAT percentile
Quantitative Science General
Respondent 3.45 3.51 . 96 94 97 72
Regular
Program
(Average) 3.36 3.29 69 67 S2 72
Regular
Program
(Range)
2.50
to
4.00
2.79
to
4.00
Special
Program
(Average) 2.42 2.62 34 30 37 18
Special
Program
(Range)
2.20
to
3.89
2.21
to
3.45
8
The Amcrie
(ion of A mo riot
tlio preservai.it
of American Jc
Americans. Si
racial and relit
tion, housing ai
programs whirl
taged miiioriti'
may enjoy full
The Ilelleni
zalion of attor
descent. Its es
between attorm
The Italian-
areas of concc
.Americans in
States; stimula
the role of Itnli
educaiion-rolnlt
rials for use in
ence and contri'
The Polish /
in the metropoli
the formulation
policy that tak<
the Polish Ame
state and fedcr;
tors of society.
In 1973, Bakke’s interviewer stated that Bakke must
be considered a “ very desirable applicant.” lie was none
theless rejected and was again rejected in 1974/'
Question to Which This Brief Is Addressed
Is petitioner’s special admission quota system, which
discriminates on the basis of race, violative of the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution?
Interest of the Amici
The American Jewish Committee is a national organiza
tion which was founded in 190(5 for the purpose of protect
ing the civil and religious rights of Jews. It has always
been the conviction of this organization that the security
and the constitutional rights of American Jews can best be
protected by helping to preserve the security and the con
stitutional rights of all Americans, irrespective of race,
creed or national origin, including specifically the right to
equal educational opportunity for all individuals.
5. After the rejection in 1973, Bakke protested the Medical
School’s admissions policy. In 1974, he was interviewed by Dr.
Lowrey, to whom he had written protesting the Medical School’s
admissions policy. Dr. Lowrey and Bakke discussed among other
things the University's quota system. Dr. Lowrey thereupon found
that Bakke was “ rather limited in his approach” and that he had
“ very definite opinions which were based more on his personal
viewpoint than upon a study of the total problem” (Record on Ap
peal, page 226. Hereinafter R.) Unlike the other two interview
ers, Dr. Lowrey gave Bakke a very low rating. To the extent
Bakke’s second rejection was predicated upon his political opposition
to the University’s special admission program, the rejection raises
serious First Amendment questions.
t
1 tliat Bakke must
at.” Ho was none-
d in 1974.’
Is Addressed
uota system, which
■lativc of the Equal
Amendment to the
rex
a national organiza-
■ purpose of protect-
.•ws. It has always
on that the security
■an Jews can best be
ocurity and the con-
f pectivc of race,
ally the right to
individuals.
protested the Medical
vas interviewed by Dr.
•<r the Medical School’s
discussed among other
.owrey thereupon found
-oach” and that he had
more on his personal
oblem” (Record on Ap-
he other two interview-
rating. To the extent
u his political opposition
am, the rejection raises
The American Jewish Congress is a national organiza
tion of American Jews founded in 191S and concerned with
the preservation of the security and constitutional rights
of American Jews through preservation of the rights of all
Americans. Since its creation, it has vigorously opposed
racial and religious discrimination in employment, educa
tion, housing and public accommodations and has supported
programs which would increase opportunities for disadvan
taged minorities to speed the day when all Americans
may enjoy full equality without regard to race.
The Hellenic Bar Association of Hlinois is an organi
zation of attorneys in that state of Greek extraction or
descent.. Its essential purpose is lo foslcr better relations
between attorneys and the communities which they serve.
The Italian-American Foundation identifies issues and
areas of concern that are of interest and affect Italian-
A morion ns in their communities throughout the United
States; stimulates and examines issues which emphasize
the role of Italian-Americans in government, industry and
education-related areas; and develops curricula and mate
rials for use in schools on all levels in the history, experi
ence and contributions to culture of Italian Americans.
The Polish American Affairs Council is an organization
in the metropolitan Philadelphia area which works toward
the formulation and the implementation of domestic public
policy that takes into account the needs and concerns of
the Polish American Community on the local, municipal,
state and federal levels in both the public and private sec
tors of society.
10
the basic pr
short term ;
stereotypes
concepts mu
factually, ei
gaily and coi
ing to the fa
I. A. T1
Clause of th
personal. T!
the Uni vers i
tion without
prima facie \
B. Racia
sumptively u
only by pres
C. The F.
racial diserin
it protects on
discriminatio
D. The C
may be disg’
room for imp
II. A. P<
legitimacy, u'
The Polish American Educators Association is an or
ganization of those of Polish descent who have an interest
in education in order to serve the needs of the members and
the needs of the Polish American community within the
framework of American society.
The Ukrainian Congress Committee of America, Chi
cago Division, is an umbrella organization of all Ukrainian-
American civic, church, educational, cultural, sports and
youth organizations in the Chicago metropolitan area. The
organization represents the interests of the Ukrainian com
munity at the city~, state and federal government levels and
is also engaged in charitable activities by assisting needy
immigrants.
Unico National is a service organization of Italian-
Americans with chapters throughout the United States.
The primary purposes of this organization are to foster the
Italian-American heritage and culture, and to provide need
ed services for people of all nationalities, races or creeds.
During the past few years, Unico National has been seri
ously engaged in a campaign to alleviate problems due to
mental health, as well as Cooley’s Anemia, a disease which
affects Mediterranean people in particular.
We submit this brief because we believe that our system
of constitutional liberties would be gravely undermined if
the law were to give sanction to the use of race in the deci
sion-making processes of governmental agencies and be
cause we believe that disadvantaged students can be aided
by other procedures that are both constitutional and prac
tical. We believe that petitioner’s position would sacrifice
I
11
-ooiation is an or-
io have an interest
the members, and
ununity within the
i> of America, Chi
nn of all Ukrainian-
ultural, sports and
opolitan area. The
the Ukrainian com-
ernment levels and
by assisting needy
nization of Italian-
the United States,
ion are to foster the
and to provide need-
ies, races or creeds,
'^fel has been seri-
aWproblems due to
mia, a disease which
eular.
Hove that our system
avely midermined if
e of race in the ded
al agencies and be-
tudents can be aided
istitutional and prac-
dtion would sacrifice
the basic principles of racial equality for expediency and
short term advantage. It would use the grossest sort of
stereotypes to decide who “ deserves"’ an advantage. The
concepts underlying petitioner’s position, we believe, are
factually, educationally and psychologically unsound, le
gally and constitutionally erroneous and profoundly damag
ing to the fabric of American society.
Summary of Argument
I. A. The rights guaranteed by the Equal Protection
Clause of the Fourteenth Amendment are individual and
personal. The Clause does not create group rights. Ileuce,
the University’s refusal to consider respondent’s applica
tion without regard to his race constituted at least a
prima facie violation of the Clause.
B. Racial distinctions made by state agencies are pre
sumptively unconstitutional and can be justified, if at all,
only by pressing public necessity.
C. The Equal Protection Clause applies to all forms of
racial discrimination. There is no basis for any claim that
it protects only minorities or that it bars only “ invidious”
discrimination.
D. The Clause bars racial quotas, no matter how they
may be disguised. The decisions of this Court leave no
room for imposition of such quotas by state universities.
H. A. Petitioner has failed to show that element of
legitimacy, urgency and pressing need that is essential to
C. The cent'
for any profes
domuod by
agencies.
D. The vio
equal protectio
admissions sys
ness only by ig
centrating on h
Clause does no
III. Petitio-
be achieved wii
mission depend
vould not bar C'
advantage—cult
not bar special
taged applicant
ceduros to dim
culturally biasc
steps to overcoi
Petitioner m
been tried. The
moved directly 1
on race. Its bri
tween its quota
scores. A midd
IV. Petition
justified by pric
which it cites II
nullify the constitutional condemnation of quotas and other
racially discriminatory practices.
There is little or no support for, and substantial evi
dence against, the four assumptions on which petitioner’s
case is based: (1) that minority applicants have special
skills; (2) that the special program will supply needed
medical care to minority communities; (3) that the pro
gram will increase the awareness of non-minority doctois;
and (4) that it •will encourage them to locate in minority
communities.
Petitioner’s argument necessarily means that there is
a “ proper” proportion of representation of each group
in each profession or calling. Acceptance of this concept
would profoundly damage the fabric of our society.
Although petitioner asserts that the special program
is necessary to undo the effects of past societal discrimina
tion, its program embodies a blunderbuss approach which
is not narrowly drawn to achieve a legitimate end. The
Constitution gives no warrant for the adoption of snch
programs by administrative officials, -without legislative
authority, carefully drawn standards and appropriate lim
itations on possible abuses.
B. Quotas can be upheld as appropriate only if their
harmful effects are ignored. Petitioner’s case requires
ignoring the injustice done to individuals such as respond
ent. Its special program benefits many who need no special
favors and passes over others who do. It reduces the
value of professional education for both majority and
minority students.
of quotas and other
and substantial evi-
>n which petitioner’s
[ilicants have special
will supply needed
s; (3) that the pro-
lon-minority doctors;
to locate in minority
means that there is
ation of each group
dance of this concept
of our society.
the special program
-:t societal discrimina-
•buss approach which
^^itimate end. The
Uie adoption of such
s, without legislative
; and appropriate lim-
ropriate only if their
' ioner’s case requires
duals such as respond-
uy who need no special
o do. It reduces the
ir both majority and
C. The concept that race is an appropriate qualification
for any profession or occupation lias been expressly con
demned by Congress and by state anti-discrimination
agencies.
D. The violation here of Bakkc’s individual right to
equal protection of the laws is clear. The preferential
admissions system operated by petitioner can claim fair
ness only by ignoring how it injures individuals and con
centrating on how it affects groups. The Equal Protection
Clause does not permit such an approach.
III. Petitioner’s legitimate objective can and should
be achieved without the use of procedures that make ad
mission depend on race. Barring use of such procedures
would not bar consideration of such factors as genuine dis
advantage—cultural, educational and economic. It would
not bar special procedures designed to seek out disadvan
taged applicants or the careful review of admissions pro
cedures to eliminate tests and other factors that may be
culturally biased. A school could also take a variety of
steps to overcome the effects of educational handicaps.
Petitioner makes no effort to show that such steps have
been tried. The record makes it clear that the University
moved directly to an admissions procedure that was based
on race. Its brief repeatedly draws a false dichotomy be
tween its quota procedure and blind reliance on academic
scores. A middle road can and should be explored.
TV. Petitioner’s special admissions procedure is not
justified by prior decisions of this Court. The decisions
which it cites that deal with public school desegregation
13
f'1
jk;
r
Racial c
can be uphei
compelled b
A. Equal P
It is well
granted by t
and personal
Shelley v. Kr
The rig-li
teenth A
the indiv
rights. 1
to say (1
white pei
grounds i
is not ae
incqualiil
Other deei
personal natr
Protection Cl;
(1950); McL
637, 642 (1950
824, 825 (195(
(1941); and 3.
way, 235 U.S.
If a given-
membership a
are distinguishable both on the ground that all the persons
involved in those cases did in fact get a public school edu
cation and on the ground that consideration of race was
permitted in those cases only to the extent that it was
necessary to correct past segregatory practices by the
school districts involved. There is no evidence of racial
segregation or discrimination by the Medical School. Fur
ther, the employment cases relied on all dealt with the
correction of past wrongs by the employer involved. And
the courts have repeatedly stressed that relief is to be
granted only when it cannot be avoided. The cases in
other areas cited by petitioner are distinguishable on sim
ilar grounds.
14
tiiat all the persons
■\ public school edu
cation of race was
extent that it was
y practices by the
> evidence of racial
edical School. Fur-
i all dealt with the
oyer involved. And
that relief is to be
ded. The cases in
tinguishable on sim-
A R G U M E N T
P O I N T ONE
Racial discrimination by a government agency
can be upheld, if at all, only upon a showing that it was
compelled by pressing public necessity.
A. Equal Protection as an Individual Right
It is well settled that the right to equal protection
granted by the Fourteenth Amendment is an individual
and personal one, not a group right. For example, in
Shelley v. Kraemer, 334 U.S. 1, 22 (1948), this Court said:
The rights created by the first section of the Four
teenth Amendment are, by its terms, guaranteed to
the individual. The rights established are personal
rights. It is, therefore, no answer to these petitioners
to say that the Court may also be induced to deny
white persons rights of ownership and occupancy on
grounds of race or color. Equal protection of the laws
is not achieved through indiscriminate imposition of
inequalities.
Other decisions of this Court which have stressed the
personal nature of the rights guaranteed by the Equal
Protection Clause are Sweatt v. Painter, 339 U.S. 629, 634
(1950); McLaurin v. Oklahoma State Regents, 339 U.S.
637, 642 (1950); Henderson v. United States, 339 U.S. 816,
824, 825 (1950); Mitchell v. United States, 313 U.S. SO, 97
(1941); and McCabe v. Atchisoti, Topeka & Santa Fe Rail
way, 235 U.S. 151, 161 (1914).
If a given racial group had the constitutional right to
membership as a group in the student body of a state
15
institution, it would necessarily follow that individuals of
a different racial background would have to be refused
admission. However, although different racial groups in
this country may well have different interests, the decisions
cited above establish that there is no such thing as a group
right under the Fourteenth Amendment. If ail individual is
denied admission to a state institution even though he is
better qualified than other who have been accepted, and if
the denial is due to the fact that he is or is not a member of
a particular racial or ethnic group, his personal and in
dividual right to bo free from discrimination has been
infringed. Accordingly, the fact that members of other
groups have suffered discrimination in the past is no jus
tification for present discrimination against an individual.
In the instant case, respondent Bakkc has been de
prived of his constitutional right .to be considered for ad
mission to the Medical School as an individual applicant
without regard to his race. This, we submit, constitutes
at least a prima facie violation of his rights under the
Equal Protection Clause.
B. The Presumptive Illegality of Racial Discrimination
“ [Rjacial classifications are ‘ obviously irrelevant and
invidious’.” Goss v. Board of Education, 373 U.S. 683,
C87 (1963); Steele v. Louisville cO Nashville R. Co., 323
U.S. 192, 203 (1944). For this reason, the adoption of
such classifications by a state agency is “ suspect” and
justifiable only by “ pressing public necessity.” Kore-
matsu v. United States, 323 U.S. 214, 216 (1944). It bears
a “ very heavy burden of justification,” Loving v. Vir
ginia, 388 U.S.
“ most rigid sc
Laughlin v. Flo
weight of the In
ciple is illumine
Exclusion casc;-
wartime emergi
edies for past i!
below, this Coe
which, deprived
fit on grounds o
petitioner, or tl
port, would wa
affirmation of l!
elusion Cases.
In Me La ugh
dealt with a col
penalty when tl
races, this Cour
But we don1
race of the i
of the histn
Fourteenth
crimination
6. Korcmatsii.
81 (1CH3'1, upholi:
large sections of tlu
time of war and th
tied as necessary to
so, those decisions
factual grounds. T
ami the Constitutiui
Betrayed: Politics
The Japanese Aina
f
17
w that individuals of
l have to be refused
rent racial groups in
i uterests, the decisions
■ such thing as a group
•lit. I f an individual is
ion oven though ho is
been accepted, and if
or is not a member of
. his personal and in
crimination has been
iat members of other
in the past is no jus-
against an individual.
Bakke has been de-
, be considered for ad-
n individual applicant
we submit, constitutes
m
,s rights under the
Racial Discrimination
■viouslv irrelevant and
hication, 373 U.S. 6S3,
Nashville R. Co., 323
cason, the adoption of
•ncy is “ suspect” and
■lie necessity.” Eore-
1,216(1944). It bears
ation,” Loving v. Vir
ginia, 388 U.S. 1, 2 (1967), and must be subjected to the
“ most rigid scrutiny” Korematsu, supra. See also Mc
Laughlin v. Florida, 379 U.S. 184, 191-2, 196 (1964). The
weight of the burden laid upon the states under this prin
ciple is illuminated by the fact that, except in the Japanese
Exclusion cases,5 handed down during the stresses of a
wartime emergency, and in those cases dealing with rem
edies for past illegal discrimination discussed in Point IV
below, this Court has never upheld governmental action
which deprived an individual of an opportunity or a bene
fit on grounds of race or ancestry. Wo do not believe that
petitioner, or the amici which have tiled briefs in its sup
port, would want this Court to rest a decision on a re
affirmation of the presently dubious authority of the Ex
clusion Cases.
In McLaughlin v. Florida. 379 U.S. 184 (1964), which
dealt with a cohabitation statute which imposed a greater
penalty when the participants were members of different
races, this Court said (at 191-2):
But we deal hero with a classification based upon the
race of the participants, which must be viewed in light
of the historical fact that the central purpose of the
Fourteenth Amendment was to eliminate racial dis
crimination emanating from official sources in the * 81
6. Korematsu. supra and Iiirnbayashi v. United States, 320 U.S.
81 (194-3), upholding the exclusion of Japanese Americans from
large sections of the West Coast, involved a temporary deprivation in
time of war and threatened invasion which the Court deemed justi
fied as necessary to meet the danger of sabotage and espionage. Even
so, those decisions have been severely criticized on both legal and
factual grounds. Ten Brock, Barnhart and Matson, Prejudice, War
and the Constitution, pp. 308-9, 325-334 (1954) ; Grodinz, Americans
Betrayed: Politics and the Japanese Evacuation (1949); Rostow,
The Japanese American Cases—A Disaster, 5+ Yale L.J. 489 (1945).
IS
States. This strong policy renders racial classifications
“ constitutionally suspect.” Bolling v. Sharpe, 347 U.S.
4-97, 499, 98 L. ed. S84, SS6, 74 S. Ct. 693, and subject to
the “ most rigid s c ru t in y Korematsu v. United States,
323 U.S. 214, 216, S9 L. cd. 194, 198, 65 S. Ct. 193; and
“ in most circumstances irrelevant” to any constitu
tionally acceptable legislative purpose, Hirabayashi v.
United States, 320 U.S. 81, 100, 87 L. ed. 1774, 17S6, 63
S. Ct. 1375. Thus it is that racial classifications have
been held invalid in a variety of contexts. See, e.g.,
Virginia Board of Elections v. Uantm, 379 U.S. 19, 13
L. ed. 2d 91, S5 S. Ct. 157 (designation of race in voting
and property records) : Anderson v. Martin, 375 U.S.
399, 84 S. Ct. 454 (designation of race on nomination
papers and ballots); Watson v. City of Memphis, 373
U.S. 526, 10 L. ed. 2d 529, 83 S. Ct. 1314 (segregation
in public parks and plagrounds); Brown v. Board of
Education. 349 U.S. 294, 99 L. ed. 1083, 75 S. Ct. 753
(segregation in public schools).
In invalidating the statute in McLaughlin, the Court
added that an enactment based on a racial classification,.
“ . . . even though enacted pursuant to a valid state inter
est, bears a heavy burden of justification, as we have said,
and will be upheld only if it is necessary, and not merely
rationally related, to the accomplishment of a permissible
state policy” (at 196). Accord, Loving v. Virginia, 3S8
U.S'. 1 (1967); Hunter v. Erickson, 393 U.S. 385 (1969);
Frontiero v. Richardson, 411 U.S. 677 (1973).
Furthermore, those seeking to justify a particular course
of governmental discrimination must show not only that a
pressing public necessity exists but also that it cannot be
dealt with by other—nondiscriminatory—means. McLaugh
lin v. Florida, supra, 379 U.S. at 196: Relying on that deci
sion, this Court sa
(1973), a case inv
In order to ju
a State must s
constitutionall
its use of the
accomplishma
of its interest.'
C. Applicability
to All Forms
While historic;;
Fourteenth Amen-
to Negroes full ri
formly held that ii
tion by a state at
group. Oyanuiv.t
v. Hopkins, 11S Uk
has not been rcstri
tion that are regar
tize and denote the
classifications whh
majority racial gi
constitutionally de
7. This Court 1
703(a)(1) of Title \
Sec. 2000e-2(a)(l) i
the legislative history
in employment; simi
differently solely her;,
ligion, sex or national
discrimination is dire
IForld Airlines, Inc.
123 (1977). See al>
Co., 427 U.S. 273, 2;
:wil classifications
Sharpe, 347 U.S.
'193, and subject to
it v. United States,
65 S. Ct. 193; and
’ to any constitu-
sc, Hirabayashi v.
. ed. 1774, 17S6, 63
1 ossifications have
ontexts. See, e.g.,
m, 379 U.S. 19, 13
>ti of race in voting
. Martin, 375 U.S.
ice on nomination
7 of Memphis, 373
1314 (segregation
■ roivn v. Board of
! 0S3, 75 S. Ct. 753
mqhlin, the Court
icial classification,
^^alid state inter-
^ ^ s vo have said,
y, and not merely
it of a permissible
7 v. Virginia, 3SS
: U.S. 385 (1969) ;
1973).
a particular course
'Off not only that a
i) that it cannot bo
-means. McLaugh-
elying on that deci
sion, this Court said in In re Griffiths, 413 U.S. 717, 721-2
(1973), a case involving discrimination against aliens:
In order to justify the use of a suspect classification,
a State must show that its purpose or interest is both
constitutionally permissible and substantial, and that
its use of the classification is “ necessary . . . to the
accomplishment’ ’ of its purpose or the safeguarding
of its interests. (Emphasis supplied.)
C. Applicability of the Equal Protection Principle
to All Forms of Racial Discrimination
While historically the impetus for the adoption of the
Fourteenth Amendment was the determination to bring
to Negroes full rights of citizenship, this Court has uni
formly held that it applies with equal force to discrimina
tion by a state against members of any racial or ethnic
group. Oyania v. California, 332 U.S. 633 (194S); Tick 11 o
v. Hopkins, 118 U.S. 356 (1886).7 Moreover, its application
has not been restricted to those forms of racial discrimina
tion that are regarded as “ invidious” because they stigma
tize and denote the inferiority of a minority group. Racial
classifications which oppress members of the minority and
majority racial groups with equal force have been found
constitutionally defective without reference to the issue of
7. This Court has recently reiterated, in interpreting Sec.
703(a)(1) of Title VII of the Civil Rights Act of 1904, 42 U.S.C.,
Sec. 2000e-2(a)(1) that: “The emphasis of both the language and
tiie legislative history of the statute is on eliminating discrimination
in employment; similarly situated employees arc not to he treated
differently solely because they differ with respect to race, color, re
ligion, sex or national origin. This is true regardless of whether the
discrimination is directed against majorities or minorities.” Trans
World Airlines, Inc. v. Hardison, U.S. , 53 L. Ed.2d 113,
123 (1977). See also McDonald v. Santa Fe Trail Transportation
Co., 427 U.S. 273, 2S0 (1976).
“ stigma.” * McLaughlin v. Florida, 379 U.S. 184 (1964);
Loving v. Virginia., 388 U.S. 1, 10 (1967); sco also Shelley
v. Kraemer, supra; Buchanan v. Warley, 245 U.S. GO (1917).
Petitioner insists that the “ strict scrutiny” require
ment, in so far as it applies to racial discrimination, oper
ates only when the discrimination injures minorities (Br.,
pp. 6S-73). The argument rests, in large part, on the theory
that the requirement applies only where “ discrete and insu
lar minorities” are affected (p. 68). That phrase was origi
nally used in United States v. Carolenc Products Company,
304 U.S. 144,152 n. 4 (1938). The concept was subsequently
applied in a line of cases involving various forms of free
dom of expression, and came to be known as “ The Firstness
of the First.” Calm, The Firstness of the First Amend
ment, 65 Yale L.J. 464 (1956). The application of the
“ strict scrutiny” test to race originated in the Japanese
Exclusion cases, supra, as petitioner notes (Br., p. G9).
Neither there, nor in later cases, did this Court suggest that
its purpose was to protect only minority racial groups.
Rather, it was based on the view, central to the concept
of equal protection embodied in the Fourteenth Amend
ment, that: “ Distinctions between citizens solely because
of their ancestry are by their very nature odious to a free
people . . .” IUrahayashi, supra, 320 U.S. at 100.
8. Realistically speaking, the racial classification herein is doubly
“ invidious.” Since its underlying rationale must be that minority
groups, qua minorities, cannot compete for limited admission places
on the same terms as nonminority applicants, it “ stigmatizes” the
minorities. And since its effect is to deny highly desired places to
nonminority applicants because they are of one race rather than an
other, it is “ invidious” as to them. We point out also that polariza
tion resulting from racial discrimination and segregation is exacer
bated when the classification is declared and established by an agency
of the state. That was explicitly recognized by this Court in Broum
v. Board of Education of Topeka, 349 U.S. 473, 494 (1954).
To survive h
a racial classific
the tost is whet
necessary” (.1/■
of some permis^
O. Quotas am
Not surprisi
admissions pro
(Br., pp. 44-47
many people hi
9. It is intere>
of quotas taken ly
attorney for arnica
(p. 51)
From a
giving favor.-;
fixing a spec
minimaily-qu
But the difft
philosophy at
gest that the
ing only to
generally suti
official and
target-quota
in the popul
solely upon
close places -
less of any r
impart a qui:
competition t
must be mad<
individual ca
Whether the
necessary no-.
21
:<T (J.S. 184 (1964);
7); see also Shelley
. 245 U.S. 60 (1917).
scrutiny ’ ’ requirc-
i scrimination, oper-
rcs minorities (Br.,
.< part, on the theory
■ “ discrete and insu-
at phrase was origi-
Products Company,
pt was subsequently
•ious forms of free-
ii as “ The Firstness
/ the First Amend-
application of the
ed in the Japanese
notes (Br., p. 69).
' Court suggest that
^y racial groups.
.1 to the concept
Fourteenth Amend-
r/.ens solely because
lire odious to a free
U.S. at 100.
fication herein is doubly
must be that minority
’united admission places
■ ts. it “ stigmatizes” the
highly desired places to
ne race rather than an-
t out also that polariza-
1 segregation is exacer-
■stablished by an agency
by this Court in Brown
73, 494 (1954).
To survive legal challenge, then, it is immaterial whether
a racial classification is “ benign” or “ invidious.” Rather,
the test is whether the classification can be “ shown to be
necessary” (McLaughlin, s u p r a ) to “ the accomplishment
of some permissible state objective.” Loving, supra, at 11.
D. Quotas and Reverse Discrimination
Not surprisingly, the University insists that its special
admissions program should not be viewed as a “ quota
(Br., pp. 44-47).9 Since “ quota” is a painful word to
many people because it is reminiscent of past injustices,
9. It is interesting to note the quite different position on the issue
of quotas taken by Archibald Cox, counsel for petitioner here, as the
attorney for amicus curiae, Harvard College, in Pel'unis v. Odcgaard
(p. 51) :
From a constitutional standpoint, the difference between
giving favorable but undefined weight to minority status and
fixing a specific numerical target for the admission of at-Icast-
minimally-qualified minority applicants may not be significant.
But the differences are so important in terms of educational
philosophy and fairness among individuals as to lead us to sug
gest that the question should be reserved. Even in an age seek
ing only to reduce the disadvantages which minority groups
generally suffer as the ingrained consequences of earlier hostile
official and private discrimination, the allocation of a fixed
target-quota of places proportionate to the ratio of the minority
in the population seems to assert a group entitlement based
solely upon numbers. Fixed target-quotas for each minority
close places to individual members of different groups regard
less of any number or degree of relevant qualifications. They
impart a quite different philosophy than a teaching that in the
competition for a limited number of places some adjustment
must be made for social objectives but they are to be weighed in
individual cases along with other claims to the places available.
Whether the differences have constitutional significance it is un
necessary now to decide. . . .
J S *
f m
oo
universities. Sic
Hawkins v. Boai
Court in a per a
who was denied
to the University
rules and regula
cants” (at 414),
available to him .
believe, is the lav
it is often replaced by a euphemism such as “ ratio” or
‘ ‘ reasonable representation. ’ ’10
Any such semantic maneuvers to evade the trial court’s
explicit finding of fact, however, would be irrelevant here,
since it is admitted that a fixed number, 16, of the 100
places available in each of the affected classes was reserved
for those applicants who were members of certain specified
racial or ethnic groups.11 Such a procedure, setting floor
quotas for certain groups, inevitably sets ceiling quotas
for other groups. The resulting injustice is palpable, par
ticularly for the individual who would have been admitted
but for his race. We submit that the principles laid down
in the decisions reviewed above plainly apply to this form
of discrimination.
First, there is no doubt that the Equal Protection
Clause bars racial discrimination in admissions to state
10. See, e.g., Raab, Quotas by Any Other Name, Commentary,
January 1972.
“ One of the marks of a free society is emphasis on achieved status
over ascribed status, the ascendance of performance over ancestry.
. . . Achieved status is that aspect of democracy which represents
the primacy of the individual, and of individual freedom.” American
Jewish Committee. Group Lijc in America. A Task Force Report
(1972), pp. 85-S6.
11. The University says that this is not so since, if it ever failed
to find 16 such applicants who are not “ fully qualified,” it would
admit more than S4 applicants under the regular admission procedure
(Br., 44-45). We submit that the theoretical possibility that this
“ rare event,” as petitioner describes it (ibid.), may occur is not
entitled to constitutional significance. Further, this suggestion itself
demonstrates that, despite a pool of 30 to 40 times the number of ap
plicants for places under the general admission program, requiring
the rejection of very highly qualified students, the Medical School
would “ scrape the bottom of the barrel" of acceptable minority
students before even considering these highly qualified nonminority
students. Cf. Bowers, Foreword to Odegaard, Minorities in Med
icine: From Receptive Passivity to Positive Action, 1966-76 (1977),
v i: “ Enough qualified minority group applicants are simply not
available.”
Second, this <
copt of quotas ir
than 60 years ac
meat quotas ba>«
which has the effv
to work for a liv
violative of the
destructive of the
and opportunity
ment to secure.”
The same result \
Superior Court o
presented the qi;
California had tie
which was eomliu
system upon an
California court 1
the picketing in th
in proportion to
though pursued i
Court also quoted
plaining why a qi
r
23
■i such as “ ratio” or
evade the trial court’s
aid be irrelevant here,
iraber, 16, of the 100
11 classes was reserved
•rs of certain specified
rocedure, setting floor
!v sets ceiling quotas
istice is palpable, par-
id have been admitted
■' principles laid down
uly apply to this form
lie Equal Protection
i admissions to state
■her Name, Commentary,
}.sis on achieved status
.'tnance over ancestry,
mocracy which represents
lual freedom.” American
ii, A Task Force Report
t so since, if it ever failed
'fully qualified,” it would
pillar admission procedure
ctical possibility that this
ibid.), may occur is not
iher, this suggestion itself
) times the number of ap-
fission program, requiring
'ents, the Medical School
of acceptable minority
rhly qualified nonminority
.aard, Minorities in Med-
e Action, 1966-76 (1977),
q>plicants are simply not
universities. Sweatt v. Painter, supra. In Florida ex rel.
Hawkins v. Board of Control, 350 U.S. 413 (1956), this
Court in a per curiam decision ordered the black plaintiff,
who was denied admission solely because of race, admitted
to the University of Florida School of Law “ under the
rules and regulations applicable to other qualified appli
cants” (at 414), even though a black law school was then
available to him at Florida A. & M. University. This, we
believe, is the law today and, indeed, should be the law.
Second, this Court has repeatedly condemned the con
cept of quotas in cases dealing with employment. More
than 60 years ago, it struck down state-imposed employ
ment quotas based on alienage, holding that state action
which has the effect of denying certain inhabitants the right
to work for a living on grounds of race or nationality is
violative of the Equal Protection Clause because it is
destructive of the “ very essence of the personal freedom
and opportunity . . . it was the purpose of the Amend
ment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915).
The same result was reached 35 years later in Hughes v.
Superior Court of California, 339 U.S. 460 (1950), which
presented the question whether the Supreme Court of
California had the right to enjoin a union from picketing
which was conducted for the purpose of forcing a quota
system upon an employer. This Court noted that the
California court had held “ that the conceded purpose of
the picketing in this case—to compel the hiring of Negroes
in proportion to Negro customers—was unlawful even
though pursued in a peaceful manner” (at 462). The
Court also quoted the part of the California decision ex
plaining why a quota system is discriminatory, i.e., that
V ,
those seeking to set up a quota system “ would, to the
extent of the fixed proportion, make the right to work
for Lucky dependent not on iitnoss for the work nor on an
equal right of all, regardless of race, to compete in an
open market, but rather, on membership in a particular
race” (at 463-404). The Court went on to say (at 464):
To deny to California the right to ban picketing in
the circumstances of this case would mean that there
could be no prohibition of the pressure of picketing
to secure proportional employment on ancestral
grounds of Hungarians in Cleveland, of Poles in Buf
falo, of Germans in Milwaukee, of Portuguese in New
Bedford, of Mexicans in San Antonio, of the numerous
minority groups in New York, and so on through the
whole gamut of racial and religious concentrations in
various cities.
In affirming the California Supreme Court decision
granting the injunction against the picketing, this Court
held, in effect, that the picketing was unlawful because its
purpose, to establish a quota based on race, was unlawful.
In Fourteenth Amendment terms, any state action in sup
port of a racial quota system inevitably clashes with the
Equal Protection Clause. See, also Flanagan v. President
& Directors of Georgetown University, 417 F. Supp. 377
(D.D.C. 1970); Anderson v. San Francisco Unified School
District, 357 F. Supp. 248 (N.D. Cal. 1972).
The racial classification imposed by petitioner and the
theory under which it has been rationalized partake of the
same evils which this Court correctly perceived in Truax
and Hughes. The racial admission practices challenged
here should be similarly invalidated.
Petitioner has
necessity for its
nation.
A. Petitioner’s Clr
None of the into
justification of its i
of legitimacy, urgci
has held essential I
of racial quotas. 1
advanced fail to sat
they are themselves
which our society
Mulkcy v. Reitman,
(1966), aff’d, 387 U
364 U.S. 339 (I960'
Petitioner argue
because (1) “ applii
possess skills not sh
backgrounds” (Br.
groups is scarce ai
return to minority
p. 25); (3) minor it'
of white students of
“ rapport with their
and (4) the collegiali
non-minority gradua
communities and bu
referral (Br. p. 33).
r
25
i r - ‘would, to the
lie right to work
ie work nor on an
to compete in an
Ip in a particular
to say (at 464):
i ban picketing in
d mean that there
ssnre of picketing
ont on ancestral
l, of Poles in Buf-
“ ortuguese in New
o, of the numerous
so on through the
< concentrations in
ne Court decision
keting, this Court
nlawful because its
was unlawful.
^P.e action in sup-
!y clashes with the
■nagan v. President
. 417 F. Supp. 377
’sco Unified School
1972).
■ petitioner and the
lized partake of the
perceived in Truax
iractices challenged
P O I N T T W O
Petitioner has failed to show a pressing public
necessity for its admitted course of racial discrimi
nation.
A. Petitioner's Claim of Pressing Public Necessity
None of the interests which petitioner has advanced in
justification of its discriminatory action has that element
of legitimacy, urgency and awesome need which this Court
has held essential to overcome our traditional abhorrence
of racial quotas. Indeed, not only do'the considerations
advanced fail to satisfy the burden of urgent necessity but
they arc themselves antithetical to the basic principles on
which our society and its institutions arc founded. See,
Mulkcy v. Reitman, 64 Cal. 2d 529, 544, 413 P. 2d 825, 835
(1966), aff’d, 387 U.S. 369 (1967); Gomillion v. Lightfoot,
364 U.S. 339 (1960).
Petitioner argues that its quota program is justified
because (1) “ applicants from minority backgrounds may
possess skills not shared broadly by applicants from other
backgrounds” (Br. p. 32); (2) medical care for minority
groups is scarce and inferior and minority doctors will
return to minority communities to use their talents (Br.
p. 25); (3) minority students will enhance the awareness
of white students of minority health problems and increase
“ rapport with their future minority patients” (Br. p. 33);
and (4) the collegiality of medical school life will encourage
non-minority graduates to locate their practices in minority
communities and build bonds for future consultation and
referral (Br. p. 33).
26 ij
professionals as fo>
idont Odegaard13 ha
There is, howev
emergouco from
physician and h
to a minority <
education, bight
a physician hav'
from poverty ai
munity from wh
a road for indh
the nation is no
Odegaard’s concl
ted as a result of sp>
lice in underserved
roborated by other s
1972 the highest c<
found in California,
whereas the southern
which ranked third
population in 1960 ai
of black physician d
that “ black physicio
many of our large m
the concentration of
the country cannot 1
tion of the black po
notes that black phy
13. Dr. Odegaard v
416 U.S. 312 (1974).
Receptive Passivity to !
14. Thompson, Cm
age, 49 Journal of Mcdn
Petitioner cites no support for these assumptions other
than its own hopes and speculation; in many instances, thcic
is already substantial authority to the effect that the under
lying assumptions are in fact groundless.1-
f
Assumption No. 1. The minority groups included in the
special program have some unique skills not shared by per- ,
sons of other races.
xllthough petitioner makes this point at two places in
its brief (pp. 32, 48), it nowhere suggests what these skills ;
are. It is not surprising that no skills are specified since
the claim that particular skills are racially based comes
perilously close to the adoption of discredited theories ot
genetic differences among the races, barely this claim de
serves no serious consideration.
I
Assumption No. 2. Medical care for minorities is scarce
and inferior and minority applicants will return to minority
communities to remedy this situation. j
Although there is no doubt that medical care for minor
ities and in fact for the poor of all races must be improved,
it is highly doubtful that the best or even an effective up- j
proach to ameliorating the health problems of minorities
lies in quota programs for minority medical students. Even
so staunch a defender of minority preference programs for
12. There is a basic incongruity that pervades petitioner's claims ‘
— the fact that almost an equal number of minority students were
admitted under the general and special admissions programs. It is
never explained why the assumptions on which petitioner’s case rests
are valid only-as to 50 per cent of the admitted minority students.
{
}}
tr>i
}1
i
f{
r
imptions other
instances, there
that the under-
included in the
shared by per-
f two places in
hat these skills
specified since
ly based comes
ited theories of
y this claim de-
orities is scarce
i urn to minority
•mre for minor-
ist be improved,
an effective ap
is of minorities
> students. Even
ice programs for
- petitioner's claims
■rity students were
is programs. It is
titioner's case rests
linority students.
professionals as former University of Washington Pres
ident Odegaard13 has recognized that:
There is, however, no necessary connection between the
emergence from the educational process of a minority
physician and his becoming a deliverer of medical cat e
to a minority community. For many other groups,
education, higher education, and preparation to become
a physician have been roads to upward mobility, away
from poverty and continued association with the com
munity from which they came. It will certainly be such
a road for individuals from the minorities with which
the nation is now concerned.
Odegaard’s conclusion that minority physicians admit
ted as a result of special programs will not nccessai ily prac
tice in underserved areas of minority population is cor
roborated by other studies. Thompson14 points out that in
1972 the highest concentration of black physicians was
found in California, New York and the District, of Columbia,
whereas the southern states of Georgia and North Carolina
which ranked third and fifth respectively in total black
population in I960 and 1970, did not even rank in the top ten
of black physician distribution. Thompson notes further
that “ black physicians are lickly to shun the ghettoes of
many of our large metropolitan cities.” lie concludes that
the concentration of black physicians in any given area of
the country cannot be definitively linked to the concentra
tion of the black population in any given area. He also
notes that black physicians tend to migrate to areas where
13. Dr. Odegaard was the respondent in DcFunis v. Odegaard,
4.1 f. tt c 'll? 11974). Odegaard, Minorities in Medicine: From
Receptive Passivity to Positive Action 1966-76 (1977) 151.
14 Thompson, Curbing the Black Physician Aranpower_Short
age, 49 Journal of Medical Education, 944, 947, 948, 949 (19/4).
r
v§
v/ rt
**?»
they can make more money and where, as in California,
they are not subject to discrimination by the local medical
societies and the general non-black population.
What scanty evidence there is reveals similar operative
factors in the career plans of Mcxican-Amcrican medical
students.13 A recent study concluded that, like their non
minority counterparts, the vast majority of the Mexiean-
American students do not intend to practice family or com
munity medicine, where their alleged linguistic and cul
tural sensitivity might be useful, but to follow the more
traditional path of sub-specialization. Again like their
non-minority counterparts, only a small proportion plan
to move into underserved rural areas and small cities in
which a significant percentage of the Chicano population is
located. The overall tendency is to return to neighbor
hoods of towns and cities which have no shortage of
physicians.
Odegaard, supra, recognized that the solution to the
problem of effective delivery of medical care to minority
communities does not necessarily depend on the racial
or ethnic composition or nature of the student body but is
much more closely linked to the nature of the school’s
curriculum, its clinical program and its success in training
more family care physicians and fewer medical specialists.
Thus he points out that both minority and majority med
ical students can be educated to the problems of the poor
communities through effective clinical programs. He notes
(p .152):
Many schools are so situated that there are minority
communities in the environs. If the school engages
23
in forays outs
the purpose o
primary care
help but becoiu
of various kin
communities,
needs of patier
attendant on s<
a range of pi
medical educai
ondarv and te
Most teaching h
part are located in I
minority ami poor
of many races. Sti
hospitals have am}
members, to be w
health problems an
poor of all ethnic a
Assumption No.
in school will enl
problems.
The post-Brown
years of primary a
of college as well a
vision and evervda
is fatuous to say ti
medical school wil
hanced awareness -
and of the difficult1
15. Kaufert, Martinez and Quesada. “ A Preliminary Study of
Mexican-American Medical Students,” 50 Journal o f M ed ica l E d u
cation 856, 860, 861, 862, September 1975.
29
as in California,
the local medical
ition.
similar operative
American medical
at, like tlieir non-
\- of the Mexican-
ice family or com-
mguistic and cul-
> follow the more
Again, like their
1 proportion plan
nd small cities in
i-ano population is
turn to neighbor-
no shortage of
;e solution to the
^^re to minority
•nd on the racial
Indent body but is
e of the school’s
access in training
nedical specialists,
md majority med-
•blems of the poor
ograms. He notes
diere are minority
he school engages
Preliminary Study of
rnal of M ed ica l E d u -
in forays outside the established medical centers for
the purpose of seeing, learning about, and serving
primary care needs, (lie faculty and students cannot
help but become more familiar with the particularities
of various kinds of communities—including minority
communities. They will learn firsthand the medical
needs of patients, and the opportunities and difficulties
attendant on serving them. They cannot help but see
a range of problems different from those to which
medical educators have been accustomed in the sec
ondary and tertiary care centers.
Most teaching hospitals of which medical schools are a
part are located in large urban areas and tend to have many
minority and poor patients as well as service personnel
of many races. Students, white and black, serving in these
hospitals have ample opportunity to meet minority group
members, to be with them as patients and observe the
health problems and the living conditions which afflict the
poor of all ethnic and racial groups.
Assumption No. 3. The presence of minority students
in school will enhance whites’ awareness of minority
problems.
The post-Brown white medical student has had twelve
years of primary and secondary education and four years
of college as well as exposure to newspapers, radios, tele
vision and everyday living in our multi-racial society. It
is fatuous to say that the presence of some black faces in
medical school will “ develop in white students ‘ an an-
hanccd awareness of the medical concerns of minorities’
and of the difficulties of effective delivery of health care
services in minority communities” (Br. p. 33).
“ •white physicians tr
and will “ build bom
consultation and ref
preference program.'
no supporting data,
persal of students a
the existing evidence
tion of doctors, mine
port for those partiei
the suggestion that i
consultant or into n
Thus, in the abs<
point, as well as on
University’s prefen
propriutc for this (.'<
absent proof of pas
question, deprives ;
tunitv on racial gr<>
moting a series of st
Although politic
minorities can treat
any form of prop
groups in the medic
are implicit in the a
to argue that mino
talents and views v
4S) ? What it men
is a job-related fm
certain percentage
cation for medical
Medical concerns unique to particular racial groups,
e.g. Tay-Sachs disease or sickle-cell anemia, are rare. The
medical concerns which are significant for members of
minority groups who arc currently underserved by the
medical profession tend-to be those of the patient popula
tion generally, made more acute by the inadequacies of
medical services provided to the poor, irrespective of race.
Malnutrition, lead paint poisoning, and rat bites arc
found in poor patients, not in minority medical students who
are mostly young, healthy, and often of middle class back
ground and life experience.
Rapport, if it is created at all between students, is
hardly likely to have any significant effect on rapport with
patients of an entirely different socio-economic group. If
rapport is deemed a valid ingredient in dealing with these
concerns, people who identify with those problems regard
less of race should be sought. Since the University’s
premise for a racially conscious quota is that criteria such
as “ disadvantage” would result in reduced percentages of
minorities, the University necessarily acknowledges that
many of its non-minority applicants also can be identified
with poverty-related medical concerns. Its premise thus
defeats its own stated objective.
Assumption No. 4. The collegiality of medical school
life will prompt more non-minority physicians to locate
in minority communities and build bonds for future con
sultation and referral to minority physicians.
The possibility that contact with a greater number of
students from particular racial and ethnic groups will spur
ufar racial groups,
emia, are rare. The
nt for members of
underserved by the
' the patient popula
t e inadequacies of
irrespective of race.
r, and rat bites are
medical students who
>f middle class back-
ictwoen students, is
feet on rapport with
economic group. If
n dealing with these
■se problems regard-
ico the University’s
is that criteria such
^^d percentages of
y acknowledges that
i Iso can be identified
>. Its premise thus
y of medical school
physicians to locate
ends for future con-
•liysicians.
a greater number of
linic groups will spur
“ white physicians to practice in minority communities”
and will “ build bonds to minority physicians for future
consultation and referral” are cited to justify minority
preference programs. Both are speculative hopes with
no supporting data. In view of the wide geographic dis
persal of students and graduates of medical schools and
the existing evidence as to the factors which influence loca
tion of doctors, minority and nonmiuority, the lack of sup
port for these particular claims is not surprising. Further,
the suggestion that race should enter into the choice of a
consultant or into medical referrals is inappropriate.
Thus, in the absence of more substantial data on this
point, as well as on all other claimed justifications for the
University’s preferential policy, it would not appear ap
propriate for this Court to give sanction to a policy which,
absent proof of past discrimination by the University in
question, deprives any individual of a significant oppor
tunity on racial grounds and does so in the name of pro
moting a series of social benefits which arc dubious at best.
Although petitioner denies that it contends that only
minorities can treat other minorities, or that it is seeking
any form of proportional representation for minority
groups in the medical profession, both of these contentions
are implicit in the arguments it makes. What does it mean
to argue that minorities “ bring to the profession special
talents and views which are unique and needed” (Br., p.
48) ? What it means is that the University believes race
is a job-related factor for physicians, or at least for a
certain percentage of them, and hence a legitimate qualifi
cation for medical students.
31
The “ compelling state interest” thus postulated by the
University assumes inter alia, that only members of a par
ticular ethnic group can understand, respond to, and rep
resent members of that group or communicate their needs
and aspirations, both in the classroom and in the practice
of medicine. This assumption embodies a kind of “ group
think” in which all members of a particular group have
sets of views and values arising out of an identical lite
experience. It assumes that race and ethnicity outweigh
all other factors in the formulation of views and needs.
It represents the ultimate denial of a trained physician’s
ability to transcend his own life-style, experience and group
identity in the effective discharge of his professional
responsibilities.
Stripped of the four assumptions discussed above,
petitioner’s case for its preferential admissions system is
reduced to reliance on the one concept that certain minor
ity groups are underrepresented in medical schools and
the medical profession and that racial quotas are the
remedy for that situation. In effect, therefore, petitioner
is arguing that there is a “ proper” proportion of repre
sentation for each group and that certain minorities have
a right, entitled to recognition as a “ compelling state
interest,” to have available a substantially proportionate
number of doctors for their use. If this is so, minority
groups have an equal right to a proportionate number
of hospital personnel, prosecutors and judges, and so
forth. It is not significant that petitioner’s minority
quota is not proportionate to the minority population of
California (although clearly it is close to being propor
32
tionate to the
What is signi
arc “ undern
represeutatio
Under thi
an indigent d
appointed cm
his particula
pitals with |
constitutioua
ployecs on ti
their patient
Wo subnr
case is factu.
constitution;!
fabric of An
legitimizatim
achieve adeq
values of mi
schools and
with respect
16. Coma-
toward integr:
nantly nonmim
ported the nov
plovniciit rami'
are unable cfiV.
or that custon
“ comfortable"
ground. Is th.
garb? Cf. .S';
(D.D.C. 1973
ure to assign !
tionate to the minority population of the nation as a whole).
What is significant is that petitioner argues that minorities
arc “ underrepresented” and the cure for such' “ under
representation” is a quota.
Under this premise, as applied to the legal profession,
an indigent defendant would be entitled not only to court-
appointed counsel, but to an attorney who is a member of
his particular racial or ethnic group. Doctors and hos
pitals with predominantly minority practice could, with
constitutional propriety, refuse to hire non-minority em
ployees on the ground that they could not properly serve
their patients.10
X
Wo submit that the concept that underlies petitioner’s
case is factually and psychologically unsound, legally and
constitutionally erroneous and profoundly damaging to the
fabric of American society. It must be remembered that
legitimization of racial quotas as a necessary means to
achieve adequate understanding of the needs, views and
values of minority groups cannot bo confined to medical
schools and the medical profession. Similar arguments
with respect to the practice of law were made in defense
16. Conversely, acceptance of this view would endanger progress
toward integration of minority practitioners in firms with predomi
nantly nonminority clients. Over the years, we have consistently sup
ported the now well-established principle that discrimination in em
ployment cannot be justified on the ground that minority employees
are unable effectively to understand or deal with those of another race
or that customers or clients of a particular shop or firm feel more
“comfortable” with those of their own racial, religious or ethnic back
ground. Is that discredited notion now to be reintroduced in reverse
garb? Cf. Sibley Memorial Hospital v. Wilson, 4SS lr. 2d 133S
(D.D.C. 1973) (a male nurse’s claim of sex discrimination for fail
ure to assign him to female patients found cognizable).
33
postulated by the
numbers of a par-
pond to, and rep-
uiicate their needs
nd in the practice
a kind of “ group
icular group have
i' an identical life
"tlmicity outweigh
views and needs,
rained physician’s'
ierience and group
his professional
discussed above,
missions system is
bat certain minor-
dical schools and
^^quotas are the
^^iore, petitioner
oportion of repre
in minorities have
“ compelling state
ally proportionate
his is so, minority
nortionate number
d judges, and so
itioner’s minority
>rity population of
_• to being propor-
m issio n s : E q m liz
L. Rev. 283 (1970'
But the conscqi
The argument tha
understand and n
group cannot be lii
it would be equally
groups. The sunn
professions and o
representatives of
is lacking, the app*
ual classifications
sorted to be const;
speculative nor a h
trend based on tin
A society pen
sexual proportion
quite different fro
Far from being r<
relevant, racial an
sanctioned and rcc
sional or officehold
himself, as a repre
he comes: and im!
17. A Consent I
Judge on September
trict. No. 70-302-tlT
provided that defeat I.
that the proportions <
Imperial Irrigation 1
the general populati'
achieving these object
of quotas and preferences in DeFunis v. Odegaard, 82
Wash. 2d 11, 507 P. 2d 1169 (1973), vacated as moot, 416
U.S. 312 (1974). They prompted Justice Douglas to say,
in his separate opinion in that case (at 342):
The Equal Protection Clause commands the elimination
of racial barriers, not their creation in order to satisfy
out theoiy as to how society ought to be organized.
The purpose of the University of Washington cannot
be to produce black lawyers for blacks, Polish lawyers
for Poles, Jewish lawyers for Jew's, Irish lawyers for
Irish. It should be to produce good lawyers for Amer
icans and not to place First Amendment barriers
against anyone, [sic]
Petitioner’s theory, of course, wrould apply with equal
validity to psychologists, social workers, bankers, busi
nessmen, political officeholders and a broad spectrum of
economic, professional and governmental occupations,
with equally profound and divisive implications. The result
would be a race-conscious society in wdiich a proportionate
number of places in colleges, professional schools and oc
cupational categories wrnuld be set aside for members of
particular racial and ethnic groups.
This is neither a w'himsical nor a farfetched view.
Proposals for racial proportional representation in schools
of dentistry, education, architecture and other service pro
fessions are regularly advanced and in many cases adopted,
each resting on the same premise as that underlying the
policy adopted and applied by the petitioner. And, of
course, the widespread practice of preferences in law school
admissions is well-documented. O’Neil, “ Preferential Ad-
34
v. Odegaard, S2
i ted as moot, 416
■ Douglas to say,
S-2):
(Is the elimination
in order to satisfy
to be organized.
Washington cannot
cs, Polish lawyers
Irish lasers for
lawyers for Amer-
endmcnt barriers
apply with equal
rs, bankers, busi-
i oad spectrum of
•ntal occupations,
ations. The result
•h a proportionate
ŝchools and oc-
*or members of
i farfetched view,
nutation in schools
1 other service pro-
>,any cases adopted,
bat underlying the
titioner. And, of
rences in law school
. “ Preferential Ad
missions: Equalising Access to Legal Education,’ ’ 2 Toledo
L. Eev. 283 (1970).
But the consequences of that theory extend even further.
The argument that only persons of a particular group can
understand and respond to the needs and demands of that
group cannot be limited to minority racial groups. If valid,
it would be equally applicable to ethnic, religious and sexual
groups. The same demands for proportionality in schools,
professions and occupations could justifiably be made by
representatives of these groups and, where proportionality
is lacking, the application of racial, ethnic, religious or sex
ual classifications to eliminate the imbalance would be as
serted to be constitutionally valid. This, too, is neither a
speculative nor a hypothetical possibility; it is a developing
trend based on the model of racial quotas.17
A society permeated by racial, ethnic, religious and
sexual proportional representation would be something
quite different from the ideal wo have striven for so long.
Far from being regarded as abhorrent, invidious and ir
relevant, racial and ethnic classifications would be officially
sanctioned and recognized in all walks of life; each profes
sional or officeholder would be regarded, and would regard
himself, as a representative of the group from whose quota
he comes; and individual aspirations would be limited by
17. A Consent Decree approved bv a United States District
Judge on September S, 1972. in NAACP v. Imperial Irrigation Dis
trict, No. 70-302-GT (U.S.D.C., Southern District of California),
provided that defendants shall take all actions necessary to insure
that the proportions of all racial and ethnic groups employed at the
Imperial Irrigation District shall be equal to their proportions in
the general population of Imperial County. The target date for
achieving these objectives is January 1, 1984.
36
those who hav
leges.18 It is
discusses whai
(Br., p. 21, n.
that a compari
students admit
If iudividu:
have suffered <
discrimination,
segregated nci
the attention (
ords evaluated
ences based on
of its color or ]
only result in
partisanship 1
race prejudice.
Petitioner
and the nunier
instituted prof
the risks of ra
argues further
quota program
efit from it, tb
of all, when it
educators “ in
the proportionate size of the group to which the individual
belongs.
Petitioner makes much of the fact that the racial quota
program at issue here is necessary to erase the scars in
flicted on the post-Broww generation by the lingering effects
of state-imposed segregation. There is no doubt that the
intentional segregation outlawed by 7Iron'll exacted a heavy
toll and that the vestiges of segregation and discrimination
persist in many areas of this nation to this day. Neverthe
less, by contrast, in some areas of the nation, statewide seg
regated education never existed and, in many states, laws
prohibiting discrimination in employment, housing and pub
lic accommodations wore enacted as early as 1945, nine
years before Brown. The years since then have been
marked by significant black progress. Many members of
minority groups have been able to achieve a substantial
measure of affluence and professional recognition and to
live and work in unsegregated milieus.
The handful of cases cited by petitioner (Br., p. 18)
indicating racial discrimination in some California local
communities cannot justify a racial quota program in a
statewide medical school. There is no indication that any
black applicant to Davis came from any of these com
munities or experienced a segregated education; if he did,
individual consideration, not a pervasive racial quota
program, would be the appropriate remedy.
Petitioner’s special program, however, makes no distinc
tion between the minority applicant whose lowered scores
can be attributed to obstacles arising from economic or
educational disadvantage due to race discrimination and
18. Petitionc
ity programs arc
at Br., p. 37, n.
represented min
parental incomes
37
A'hicli the individual
diat the racial quota,
erase the scars in-
the lingering effects
is no doubt that the
own exacted a heavy
a and discrimination
this day. Xeverthe-
ation, statewide seg-
n many states, laws
nt, housing and pub-
parly as 194b, nine
ice then have been
Many members of
chievc a substantial
i recognition and to
|ner (Br., p. 18)
irae California local
quota program in a
■ indication that any
any of these corn-
education ; if he did,
vasive racial quota
emedy.
eer, makes no distinc-
• hose lowered scores
g from economic or
o discrimination and
those who have attended the finest prep schools and col
leges.18 It is interesting in this regard that petitioner
discusses what was available to Bakkc because he is white
(Br., p. 21, n. 12) but failed to supply evidence below so
that a comparison could be made to the special admissions
students admitted in his stead.
If individual blacks applying to Davis Medical School
have suffered economic hardship because they encountered
discrimination, attended segregated schools or lived in
segregated neighborhoods, these facts could be brought to
the attention of the Admissions Committee and their rec
ords evaluated accordingly. Any other system of prefer
ences based on mere membership in a group which, because
of its color or physiognomy, has suffered discrimination can
only result in a society in which race consciousness and
partisanship become the significant operative forces and
race prejudice, rather than being minimized, is legitimated.
Petitioner also argues (p. 42) that the Davis faculty
and the numerous other medical school faculties which have
instituted preferential programs arc “ as acutely aware of
the risks of race lines as any element in our society.” It
argues further that decisions as to the necessity of the
quota program, which ethnic and.racial groups should ben
efit from it, the extent of the benefit and, most important
of all, when it shall be terminated, should all be left to
educators “ in the exercise of the discretion with respect to
18. Petitioner itself acknowledges that the nation's special minor
ity programs are not limited to the economically disadvantaged when
at Br., p. 37, n. 46 it points out that less than a third of the under
represented minorities accepted in medical schools in 1976 had
parental incomes under $10,000.
gfr
the result is o
underlying ra
Here, both tin
but confusion,
ate the prodia
It is uncle:
upon the need
disadvantages
ination (e.g., t
(b) current cl;
tion residents
The remedy si
posed social e
Here, the vaga
reflect a total i
in on the rath
rationale. Tli
University art
remedy would
is historical cl;;
only bo compel
titled to comp<
coterminous v
University. It
the remedy mu
reflective of II
pensation won
sifications. T
would have to
Again, this wo:
cial treatment
ooob
admissions policy lodged in them” by the California state
Constitution (pp. 42, 86).
Although in a system of limited places some discretion
must inevitably be granted educators to choose among in
dividual candidates, the exercise of educational discretion,
in which petitioner’s officials have expertise, is not involved
in this case. At issue here is a basic question of broad social
policy with direct and fundamental constitutional implica
tions: Shall racial preferences in admission to medical
school be accorded selected racial and ethnic minorities in
order to increase the number of medical students and doc
tors who are members of these preferred groups above the
level which might exist absent such preferences f This is a
question which goes far beyond the admissions policy of
any one school or for that matter the conduct and circum
stances of a particular profession. Its implications can
change the very character of our society. So significant a
decision cannot and should not be left to the judgment of
individual institutions, no matter how distinguished. And
certainly it cannot be left to a small group of faculty mem
bers in such institutions. The doctors who formed the
Davis Task Force which set up the Special Program and
the personnel who administer it were not trained in those
disciplines which might equip them to grapple with the com
plex issues of broad social and constitutional policy raised
by problems of racial quotas. Nor, despite the references in
petitioner’s brief (p. 42), did they have any mandate from
the people of California or from any elected official to make
the significant and far-reaching decisions embodied in the
special program. The nature of the legislative process, and
the administrative rule-making process as well, is such that
39
e California state
>s some discretion
choose among in-
ational discretion,
ise, is not involved
ion of broad social
titutional implica-
dssion to medical
ihnic minorities in
students and doc-
1 groups above the
m-ences? This is a
I missions policy of
i mduct and circum-
- implications can
y. So significant a
lo the judgment of
iistinguished. And
0 o f faculty mem-
•s who formed the
ecial Program and
of trained in those
apple with the com-
;lional policy raised
ite the references in
• any mandate from
cted official to make
ais embodied in the
islative process, and
as well, is such that
the result is ordinarily accompanied by a statement of the
underlying rationale, which reviewing courts can evaluate.
Here, both the process and the result reflect not rationale
but confusion, making it difficult if not impossible to evalu
ate the product.
It is unclear whether petitioner’s rationale is premised
upon the need for remedial provisions to compensate for
disadvantages resulting from (a) historical class discrim
ination (e . g descendants of slaves or interned Japanese);
(b) current class discrimination (c.(j.. inner city or reserva
tion residents); or (c) current personal discrimination.
The remedy should he keyed to the rationale and the pro
posed social engineering would be different in each case.
Here, the vagaries of the actual special admissions program
reflect a total failure on the part of the University to focus
in on the rationale and to adopt a solution geared to that
rationale. The reason for this failure may be that, if the
University articulated its rationale, the impropriety of the
remedy-would become clear. Specifically, if the rationale
is historical class discrimination, this historical wrong could
only be compensated for over a period of time and those en
titled to compensation would be many and diverse and not
coterminous with those given special treatment by the
University. If the rationale is present class discrimination,
the remedy must be geared to eliminating all present factors
reflective of that discrimination. Those entitled to com
pensation would not be those who fit into historical clas
sifications. The categories given preferential treatment
would have to bo reflective of present social structures.
Again, this would not be coterminous with those given spe
cial treatment by the University. Finally, if the rationale
is present personal discrimination, individual remedies
must be fashioned. The use of categories reflective of
group identification would bo fundamentally inconsistent
with the rationale. Here, of course, the remedy adopted by
the University would exacerbate the evil.
One of the philosophical underpinnings of petitioner’s
case is that medical schools must enjoy the latitude to
select their students as they see fit—subject, of course, to
reasonable criteria as determined by the schools, and that
they may fashion appropriate means to achieve the ends
they deem appropriate (Br., p. S3). In this view, a medi
cal school is considered to have the right to adopt a racially
preferential admissions scheme, free of “ judicial interven
tionism” and, implicitly, of other governmental intrusion
as well. Ironically, however, if petitioner were to prevail
and the validity of racial quotas in admission to institu
tions of higher education were to be upheld by this Court,
it is not an unreasonable expectation that the Department
of Health, Education and Welfare would require de facto
quotas as a condition for receipt of Federal benefits by pro
fessional schools in general and by medical schools in par
ticular throughout the country. Failure to achieve the
requisite numbers could result in a threat of loss of govern
mental aid to the institutions and to their students. Such a
consequence would mean that a faculty’s autonomy to select
among candidates for admission to such schools would be
circumscribed, not validated. See, c.g., Glazer, The Neiv
York Times, July 30, 1977 p. 19.
40
B. The Harm
Quotas in
Quotas can
with a pressing
are ignored.
Court to do ju
There are a
tory classificati
tices are unsoi
manifest unfa
penalize innoei
sibility for hi
surcdly most p
“ disadvantage ̂
stretch of the i
vantaged.” B
poverty-strickc
for preferentii
itism been bes'
19. A non-e
OC.IW is less til.
as low as 2.11 ha \
cnees in MCAT
extraordinary. '
plieanls, which
scholastic as well
average accepted
dcniably discrinr
ot race and adnii
non-minority api
tiie Medical 3ch<
who were admit!
20. For the ;
tics which incliui
such applicants, i
idual remedies
es reflective of
dlv inconsistent
ledy adopted by
- of petitioner’s
the latitude to
ct, of- course, to
cliools, and that
chieve the ends
iis view, a medi-
adopt a racially
udicial interven-
nental intrusion
were to prevail
-Sion to institu-
!d by this Court,
the Department
require de facto
^P cfits by pro-
d schools in par-
■ to achieve the
pf loss of govern-
•tudents. Such a
utonomy to select
schools would be
fllazer, The New
B. The Harmful Effects of Racial
Quotas in University Admissions
Quotas can be seen as an appropriate means of dealing
with a pressing public problem only if their harmful effects
are ignored. We submit that petitioner is asking this
Court to. do just that.
There are a number of reasons why racially discrimina
tory classifications in professional school admission prac
tices are unsound. The most important of these is their
manifest unfairness to individuals.10 Ineluctably they
penalize innocent persons who boar no personal respon
sibility for historic wrongdoing. Moreover, while as
suredly most people of color in this country are culturally
“ disadvantaged,” not all are, nor are all whites by. any
stretch of the imagination properly to be considered “ ad
vantaged.” Rarely if ever, for instance, have whites from
poverty-stricken Appalachia been singled out as a group
for preferential educational treatment.00 Nor has favor
itism been bestowed on members of other ethnic groups
19. A non-minority applicant is immediately rejected if his
OGPA is less than 2.5. However, minority applicants with OGlWs
as low as 2.11 have been accepted by the Medical School. The differ
ences in MCAT scores between Bakke and minority applicants is
extraordinary. The “benchmark” ratings for accepted minority ap
plicants, which include assessments of all relevant factors, non
scholastic as well as academic, fall far below those of Bakke and the
average accepted non-minority applicant. The Medical School un
deniably discriminates against non-minorities solely on the basis
of race and admits less qualified minorities in licit of more qualified
non-minority applicants. Bakke was better qualified, according to
the Medical School's own ratings than almost all minority applicants
who were admitted. 20
20. For the years 1971 through 1974 the University kept statis
tics which included white economically disadvantaged. Of the 272
such applicants, none were accepted under the special program.
41
fS
which credibly can claim to have been subject to generalized
societal discrimination—Italians, Poles, Jews, Greeks,
Slavs as a result of which at least some such persons
bear the economic and cultural scars of prejudice and thus
could be deemed entitled to preference as a form of resti
tution. As but one example, while Poles comprise 6.9%
of the population in the Chicago metropolitan area, the
percentage of Poles on the boards of directors of the 106
largest corporations in that area is only 0.3%. Barta,
Report prepared by The Institute of Urban Life for The’
National Center for Urban Ethnic Affairs (1973).
On the other hand, preferential systems such as the
one challenged here do confer benefits on some blacks and
Ilispanics who have come to this country recently_lot-
example, from Mexico, Jamaica and Cuba—and who can
not be said to have been injured by past discrimination in
this country.21
Preferences also create the danger that, once race is
accepted as a factor in admissions, it will progressively
affect the operation of the school generally. For example,
it is likely that, in the interest of demonstrating the success
of the admissions policy, there will be a strong temptation
to grade disadvantaged minority students on a scale less
rigorous than that by which others are measured_or to
reduce failure criteria for ail students. If this does hap-
21. In a discrimination case now pending in the Colorado Su-
IndTx H' ^ 0f thc *̂ 'n,vcrs!tyofCtriorado,Index No. _/45-5), the plaintiff was first considered bv an admis
sions committee as a minority applicant because it was assumed from
is surname that he was of Hispanic extraction. When it was
ot ' « - r™.
42
pen (and some bi
will perceive th
standard, which
esteem, not to m
who manage to g
A significant
ment is likely to
■ abilty and accou
will nevertheless
they, too, were
Justice Douglas s
case, supra (416
process creates si
of inferiority tlia
lawyer.” 131
22. See James
Afro,” in the Clevc
titled, “ Preferential
23. "Why does t
One explanation is
class is a necessary
of law requires thi >
justice, p. 15 (.Yen'
23a. In a news •
November 29, 1973.
Executive Director,
He (Dr. Logai
from the medic
young blacks t<
believed firmly i
should undergo
ards as others,
standards; he r
damage not onh
ihunitv itself.
43
<s- i-o generalized
Jews, Greeks,
>e suck persons
I'.judice and thus
a form of rcsti-
eomprise 6.9%
■olitan area, the
ctors of the 106
y 0.3%. Barta,
an Life for Tke
> (1973).
ms such as the
some blacks and
ry recently—for
i—and who can-
discrimination in
iat, once race is
• progressively
For example,
ating the success
irong temptation
s on a scale less
measured—or to
If this does hap-
h the Colorado Su-
■iversity of Colorado.
■ lered by an adinis-
it was assumed from
inn. When it was
s dropped from fur-
pen (and some believe it already has"), minority students
will perceive that they are beneficiaries of a double
standard, which is apt to play havoc with their own self
esteem, not to mention the impact it may have on otlicis
who manage to graduate without any favoritism."
A significant adverse side effect of preferential treat
ment is likely to be that those minority students of high
abilty and accomplishment who excel strictly on merit
will nevertheless carry the stigma upon graduation that
they, too, were beneficiaries of a double standard. As
Justice Douglas said in his separate opinion in the DcFums
case, supra (416 U.S. at 342): .“ A segregated admissions
process creates suggestions of stigma.. . . That is a stamp
of inferiority that a State is not permitted to place on any
lawyer.” * 23*
22 See James Nelson Coleman's column, "From Under My
Afro." in the Cleveland Sunday Press of November 15, 19/3, en
titled, “ Preferential Policies Could Backfire.
23. “Why docs the sense of the injustice call actively for equality?
One explanation is that equal treatment of all within a recognized
class is a necessary attribute of any legal order: the very concept
of law requires this minimal regularity." Calm, The Sense of In
justice, p. 15 (iVcrc University Press, 1949).
23a. In a news release from the A. Philip Randolph Institute on
November 29, 1973, “ In Memory of Arthur Logan," the Institute's
Executive Director, Bayard Ruslin, observed:
He (Dr. Logan) worked tirelessly to root out discrimination
from the medical profession. And he was forever encouraging
young blacks to take up medicine as a profession, because he
believed firmly in its worth. But he believed that black doctors
should undergo the same discipline and meet the same stand
ards as others. He was adamantly opposed to the lowering of
standards: he understood too well that this would irreparably
damage not only the medical profession but also the black com
munity itself.
in Palo Alto
aversion to q
292):
. . . til
than havi
—and the
primarily
ments aiv
loud and i
and that, t
to have s
message
people—\\
result fro
* are alreat.
in produc
e ration, v
comes syi;
alike—wit
conies syn
Considerati
fact that popul
as strong amo
population. rl
March, 1977.
expressed opp'
education and
group member,
as measured In
64% of the non
the same way i
24. The ques;
for past disc rim:
should he given |
college. Others s
be the main cons;
feel on this matte:
Also germane to the issue of racially preferential ad
mission to professional schools, and of artificially imposed
proportional representation therein on the basis of race,
are the following excerpts from the widely syndicated col
umn by Roy TV ilkins, the distinguished retired Executive
Director of the National Association for the Advancement
of Colored People, in the New York Post of March 3, 1973:
. . . It is ridiculous for Negroes to claim that be
cause they are 40 percent of the population, they
should have 40 percent of the jobs, 40 percent of the
elected offices, etc.
This is self-defeating nonsense, for no person of
ability wants to be limited in his horizons by an arbi
trary quota or wants to endure unqualified people in
positions that they fill only because of a numerical
racial quota.
. . . Ignoring the decades in which black college
students were on a “ zero quota” basis, they went into
college admissions policies which on some campuses
set aside a percentage of places for black applicants.
In some places white applicants with excellent records
have been made to stand aside for blacks with inferor
records.
. . . Such practices and, in fact, the whole black-
tilted system are doing no favors to Negro applicants.
God knows it is true that the cards have been deliber
ately stacked against blacks. Every feasible step, even
those costing extra money, should be taken to correct
this racialism.
But there must not be a lowering of standards.
Negroes need to insist on being among the best, not
on being the best of the second- or third-raters.
In his book, Pltxclz Ediiccition, ]\Iytlis and Prciycdics
Thomas Sowell, an outstanding economist who attended
public school in Ilarlom, and is now at Stamford University
44
preferential ad-
tificially imposed
iie basis of race,
!y syndicated col-
retired Executive
the Advancement
of March 3,1973:
to claim that be-
population, they
10 percent of the
for no person of
izons by an arbi-
lualified people in
c of. a numerical
hich black college
• is, they went into
n some campuses
■ black applicants,
i^cellent records
■ s with inferor
. the whole black-
Negro applicants,
have been dcliber-
feasible step, even
'c taken to correct
ing of standards,
tong the best, not
ihird-raters. . . .
'is and Tragedies,
list who attended
arnford University
in Palo Alto in California, forcefully articulated his own
aversion to quotas as a remedy for past deprivation (at
292):
. . . the actual harm done by quotas is far greater
than having a few incompetent people here and there
—and the harm that will actually be done will be harm
primarily to the black population. What all the argu
ments and campaigns for quotas are really saying,
loud and clear, is that black people just don't have it,
and that they will have to be given something in order
to have something. The devastating impact of this
message on black people—particularly black young
people—will outweigh any few extra jobs that may
result from this strategy. Those black people who
are already competent, and who could be instrumental
in producing more competence among the rising gen
eration, will be completely undermined, as black be
comes synonymous—in the minds of black and white
alike—with incompetence, and black achievement be
comes synonymous with charity or payoffs.
Considerations such as these may well account for the
fact that popular opposition to racial preferences is almost
as strong among minority groups as it is in the general
population. That is shown by a Gallup Poll taken in
March, 1977. In that poll, S3% of the general population
expressed opposition to preferential treatment in higher
education and employment for both women and minority
group members, and favored use of the criterion of ability
as measured by tests, notwithstanding past discrimination.
64% of the non-white participants in this survey answered
the same way (The Gallup Opinion- Index, June 1977).-1 24
24. The question ashed was: “ Some people say that to make up
for past discrimination, women and members of minority groups
should be given preferential treatment in getting jobs and places in
college. Others say that ability, as determined by test scores, should
be the main consideration. Which point comes closest to how you
fed on this matter?”
46
Congress i
antcc a jol
In short, i
be hired s
of discrimi
ity group,
minority o
gross has
is the roin>
barriers It
vidiously I
impermissi
Although ('
than education
dergirds it can
policy. In ena
Section 2000e-:
ment as a rcnr
preferential tr
improper rente
proven history
a fortiori an in
closely related
no proof of sue
posite here.
In his disse
tice Halo of th
approval the ei
v. Son Francis
(N.D. Cal. 11)7
preferential sc
trators. In so
C. Statutory Condemnation of Racial Quotas
The concept that race is a job-related qualification for
any profession or occupation has been explicitly repudi
ated by the Congress of the United States. In formulating
Federal antidiscrimination- policy, Congress provided that
race or color could never bo a qualification for any posi
tion. It made no exemption for the professions. Thus,
although Title VII of the Civil Eights Act of 10(54 permits
employers to utilize such suspect classifications as national
origin, sex or religion, if they can establish them to Ik* a
“ bona fide occupational qualification,’ ’ the Act provides
no such exemption for alleged qualifications based on race
or color. 42 U.S.C. Section 2000e-2(c). Furthermore,
in Title VIJ Congress squarely prohibited employers from
voluntarily granting preferential treatment to members of
racial, ethnic, religious or sexual groups in order to correct
“ imbalance’ ’ in their work forces. 42 U.S.C. Section
2000c-2(j) (1964).
Similarly, state regulatory agencies administering state
fair employment practices statutes containing exceptions
for “ bona fide occupational qualifications” early held that
race and color were not job-related qualifications.--'
In construing Title VII of the Civil Rights Act of 1964
(42 U.S.C. Section 2000e-15) in Griggs v. Duke Poiuer Co.,
401 U.S. 424 (1971), which held that job qualification stand
ards must be performance-related, this Court said (at
430, 431):
25. See. e.g.. Survey Associates. Inc. discussed in Report of Prog
ress, New York State Commission Against Discrimination (1948.
p. 73) (color held not to be a “bona tide occupational qualification’’
for a social worker working with black clients).
Quotas
■il qualification for
explicitly repudi-
>s. In formulating
ress. provided that
dion for any posi-
wofessions. Thus,
vet of 1964 permits
cations as national
blisli them to be a
the Act provides
ions based on race
e). Furthermore,
ed employers from
lent to members of
in order to correct
42 U.S.C.' Section
Ministering state
itaming exceptions
1 ideations.23
Rights Act of 1964
v. Duke Power Co.,
■ qualification stand-
.iis Court said (at
=ed in Report of Prog-
Discrimination (1948.
•ipational qualification"
ts).
47
Congress did not intend by Title YTI, however, to guar
antee a job to every person regardless of qualifications.
In short, the Act does not command that any person
be hired simply because ho was formerly the subject
of discrimination, or because he is a member of a minor
ity group. Discriminatory preference for any group,
minority or majority, is precisely and only what Con
gress has proscribed. What is required by Congress
is the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate in
vidiously to discriminate on the basis of racial or other
impermissible classification.
Although Griggs dealt with job discrimination rather
than educational discrimination, the philosophy which un-
dergirds it cannot be reconciled with petitioner’s admission
policy. In enacting Section 703( j ) of Title VII (42 U.S.C.
Section 2000c-2(j)), Congress abjured preferential treat
ment as a remedy for racial imbalance in employment. If
preferential treatment based on race is doomed to bo an
improper remedy for an employment situation involving a
proven history of racial discrimination, as in Griggs, it is
a fortiori an improper remedy for an educational situation,
closely related to employment opportunity, where there is
no proof of such a history. Griggs, therefore, is highly ap
posite here.
In his dissenting opinion in DcFimis, supra, Chief Jus
tice Halo of the Supreme Court of Washington cited with
approval the employment discrimination ruling in Anderson
v. San Francisco Unified School District, 957 F. Supp. 243
(N.D. Cal. 1972), in which the court rejected a racially
preferential scheme for promotion of public, school adminis
trators. In so doing, he observed (at 249):
aŝ jsfci!
tgMmSwmsr:
I
48
- i
Preferential treatment under the guise of “ allirmalive
action” is the imposition of one form of racial discrim
ination in place of another. The questions that must
bo asked in this regard are: must an individual sac
rifice his right to be judged on his own merit by ac
cepting discrimination based solely on the color of his
skin? How can we achieve the goal of equal opportu
nity for all if, in the process, we deny equal opportunity
to some ?
The decision in Anderson, supra, was grounded in part on
Title VI, Section 601, of the Civil Eights Act of 19(14 (42
U.S.C. §2000d) in which Congress made clear its intent to
bar discrimination against any person on the basis of race
“ under any program or activity receiving Federal financial
assistance.”
Similarly, the District Court for the District of Colum
bia has recently concluded that Title VI prohibits a univer-
sity which receives federal funds from according minority
group students preferential treatment in the allocation of
financial aid and has awarded a white graduate damages
equal to the difference between the amount of aid he re
ceived and the amount which he would have received had he
not been Caucasian. Flanagan v. President £ Directors of
Georgetown Univ., 417 F. Supp. 377 (D.D.C. 197G).
This Court has recently demonstrated sensitivity to
the rights of non-preferred individuals in the general con
text of reverse discrimination. In Franks v. Bowman
Transportation Company, 424 U.S. 747 (1976), it held that
minority group plaintiffs who had established discrimina
tion were entitled to retroactive seniority in accordance with
the “ make-whole” objective of Title VII. The seniority
for which the plaintiff had asked was “ only seniority status
retroactive to (h
some form of ai
asserted that n
positions they v
discrimination s
they have eanu
Powell and Eel
to emphasize th
is an appropriat
disadvantages o
Chief Justice B.
would be at th
adding that one
at 781. See al
portation Co., so
whites).
Even more n
U.S.,------U.S. -
tho determinatio
tematic patterns
of the remedy f o
terms of the exi>
that a bona fide s
“ locked in” emj
Act discriminate
who suffered pn
As to post-Ai
to direct that rci
tims. Further,
balancing the e<
parties. Here, o
49
uisc of “ affirmative
in of racial discrim-
'lucstions that mast
l ail individual sac-
is own merit by ac-
- on the color of his
al of equal opportu-
iy equal opportunity
grounded in part on
Ids Act of 1964 (42
lo clear its intent to
on the basis of race
i nar Federal financial
a* District of Colum-
l prohibits a univer-
t according minority
in the allocation of
|raduate damages
"ant of aicl he re-
have received had he
blent (£ Directors of
(D.D.C. 1976).
I rated sensitivity to
s in the general con-
Franks v. Boivm-an
7 (1976), it held that
lablished discrimina-
! y in accordance with
VII. The seniority
• only seniority status
retroactive to the date of individual application, rather than
some form of arguably more complete relief. No claim is
asserted that nondiscriminatcd employees holding OTR
positions they would not have obtained but for the illegal
discrimination should be deprived of the seniority status
they have earned.” Id. at 776. Nevertheless, Justices
Powell and Relinquish, concurring in part were careful
to emphasize that, while retroactive “ benefit” seniority
is an appropriate remedy, “ competitive” seniority, which
disadvantages other employees, should not he awarded.
Chief Justice Burger agreed, noting that such a remedy
would be at the expense of individual employees and
adding that one cannot “ [rob] Peter to pay Paul.” Id.
at 781. See also McDonald v. Santa Fe Trail Trans
portation Co., supra, (Title VII bars discrimination against
whites).
Even more recently, this Court, in Teamsters (1ST) v.
U.S., ------U.S.-------, 52 L. Ed. 396 (1977), after confirming
the determination that the company had engaged in sys
tematic patterns of discrimination, considered the question
of the remedy for an employer’s prc-Act discrimination in
terms of the existing seniority agreement. The Court held
that a bona fide seniority system was lawful oven though it
“ locked in” employees and perpetuated the effect of prc-
Act discrimination. No relief was afforded to employees
who suffered prc-Act discrimination.
As to post-Act discriminations, this Court was careful
to direct that remedies be applicable to demonstrable vic
tims. Further, the Court highlighted the concern for
balancing the equities between the victim and innocent
parties. Here, of course, we are not dealing with demon-
strable individual victims of discrimination. Rather, the
claim is a class discrimination balanced against innocent
victims. Certainly, the inequity to a Bakke here is far
greater than the inequity to those with seniority in Team
sters (IBT) v. U.S., and the minority students admitted
herein are not victims nearly to the extent as were those in
dividuals personally discriminated against therein.
D. Violation of Individual Rights
In this case, the violation of the individual rights guar
anteed by the Fourteenth Amendment {supra, pp. 13-24)
is clear. It is conceded that, all other things being equal,
Bakke would have been admitted to the Medical School if
he had been a member of one of the races covered by the
special program or if there had not been a special admis
sions program based on race.
Petitioner seeks to obscure that fact by speaking in
terms of “ a reduced chance of admission to medical school”
(Br., p. 65). It argues that “ . . . it is diminution, not ex
clusion, which is the issue. . . .” (Br., p. 54). But it gives
the show away when it says (Br., p. 55):
Unfortunately the objectives of the program cannot be
furthered without effect on some individuals. These
effects are incidental to the program, although obvious
ly not to respondent. (Emphasis supplied.)
Petitioner leaves no room to doubt that it wants this
Court to make equal protection a matter of group rights
rather than individual rights when it says that “ it cannot be
said that whites have been denied an adequate representa
tion.” (Br., p. 79).
"Wo submit
admissions pol
ly unsound as
precisely the
Clause was do
to the assumpt
icy, many wliil
many are blip
schools; and t
themselves am
mission procob
who are mem
pool and all i
ground into an
only with the o
racial assump
applied so as t
be free from (
If the cornu
Medical School
on the basis t.
such, is not one
this way can
equality be me
26. Petitioner
vantaged member
under the Task
is not as clear as
vantaged" applic:
cited page of the
Committee, recitt
ineligible for the
who breezed thro'
51
ii. Rather, the
gainst innocent
dee here is far
iority in Team-
idents admitted
s were those in-
therein.
nnl rights guar-
l>ra, pp. 15-24)
gs being equal,
I'dical School if
covered by' the
i special admis-
ny speaking m
medical school”
k’ tion, not ex-
But it gives
■gram cannot be
. iduals. These
though obvious-
died.)
it it wants this
of group rights
a t“ it cannot be
late representa-
Wo submit that, when a governmental agency bases an
admissions policy on a whole series of arbitrary and factual
ly unsound assumptions, as we have shown, it engages in
precisely the kind of conduct that the Equal Protection
Clause was designed to prevent. The fact is that, contrary
to the assumptions underlying petitioner’s admissions pol
icy, many whites suffer economic and cultural deprivation;
many are blighted by poverty; many attend inadequate
schools; and many must work while in school to support
themselves and their families. This is ignored by an ad
mission procedure which casts all disadvantaged applicants
who are members of certain minority groups into one
pool and all non-minority applicants regardless of back
ground into another, and compares members of each group
only with, the others in that group. Through this procedure,
racial assumptions are arbitrarily and unconstitutionally
applied so as to defeat the personal rights of individuals to
be free from discrimination on grounds of race.
If the command of equal protection is to be obeyed, the
Medical School must compare all applicants with each other
on the basis of all pertinent factors—of which race, as
such, is not one—giving each factor its due weight. Only in
this way can the constitutional demand of justice and
equality be met.20 26
26. Petitioner asserts (Br„ p. 5) that, “ in practice only disad
vantaged members.of racial and ethnic minority groups are admitted
under the Task Force program" (R. 171). The record, however,
is not as clear as petitioner would have us believe that only “ disad
vantaged-’ applicants are accepted for the program. While, at the
cited page of the record, Dr. Lowrey, Chairman of the Admissions
Committee, recited a hypothetical example of a minority applicant
ineligible for the Task Force program—a black son of a physician
who breezed through four consecutive years of college—he also” stated
( fo o tn o te con tin ued on n ex t p a g e)
P O I N T T H R E E
The legitimate objectives of petitioner's admis
sion policy can and should be achieved without
making admission depend to any extent on race.
We have shown above (pp. 18-19) that the “ compelling
necessity” test includes a requirement that a government
agency seeking to justify a course of racial discrimination
must show that its objectives cannot bo achieved in any
other way. That requirement has not been met here by
petitioner.
in an a ffid a v it , lis t in g sev era l a p p a re n t ly ra c ia lly n eu tra l in d ica to rs
o f d isa d v a n ta g e , th a t ( R . 6 6 ) :
A d d it io n a lly , th e S p e c ia l A d m is s io n s C o m m itte e c o n s id e r s the
a p p lic a n t ’ s status as a m e m b e r o f a m in o r ity g r o u p as an e lem en t
w h ich b ea rs o n e c o n o m ic o r ed u ca tio n a l d e p r iv a t io n . . . .
P e t it io n e r fu r th e r a sserts ( B r . , p . 6 ) that all s tu d en ts a d m itte d u n d er
th e sp ecia l p r o g r a m w e r e q u a lified . P r o o f o f th is c la im is a lle g e d ly
s u p p o r te d b y th e a sse r tio n th at th ose- ch o se n ca m e fr o m a p o o l o f
m in o r ity s tu d en ts ten tim es la r g e r than th e s ize o f th e g r o u p o f fe r e d
a d m iss io n . C le a r ly , “ q u a lif ie d ” is a re la tiv e te r m a n d , in rea lity , w ith
a lim ite d n u m b e r o f p la ces a v a ila b le o n ly th o s e a c c e p te d a re q u a lified .
In a n y ev en t, th e fig u re s u sed b y p e t it io n e r to ju s t i fy its c la im d e fy
a n a ly s is . . O f th e 2 9 7 a p p lica n ts w h o s o u g h t a d m is s io n in 1973 u n d er
th e sp ecia l p r o g r a m , at least 73 w e r e n o t c o n s id e r e d b e ca u se th ey w ere
w h ite . O f th e re m a in in g a p p lica n ts a re la tiv e ly la rg e p e r ce n ta g e w ere
n o t d e e m e d d is a d v a n ta g e d , s in ce IS o f 31 m in o r ity s tu d en ts w e r e a c
c e p te d u n d e r th e g e n e ra l p r o g r a m . It is a ls o lo g ic a l to a ssu m e that
o f th o s e re m a in in g s o m e w e r e n o t q u a lified . F o r e x a m p le , D r .
L o w r e y testified th a t th e o n ly r e c o m m e n d a tio n s fr o m th e su lxrom -
m ittee n o t a cce p te d b y the fu ll c o m m itte e w e r e a p p lica n ts w h o e ith er
d id n o t take, o r h ad r e c e iv e d less th an s a t is fa c to ry g ra d e s in , req u ired
co u r s e s . I f r e co m m e n d e d a p p lica n ts h ad n o t fu lfilled p re re q u is ite s ,
it ca n he a ssu m e d that so m e stu d en ts n o t r e c o m m e n d e d a lso fa iled to
fu lfill su ch req u irem en ts . F u rth e r , it w o u ld a p p e a r fr o m th e re c o r d
th at a re a so n a b ly la rg e p e r ce n ta g e o f th ose a c c e p te d c h o s e n o t to
a tten d . W h e n all th ese fa c to rs a re c o n s id e r e d , th e re lev a n t p oo l
m a y b e as lo w as 1 o u t o f 2 a n d n o t 1 o u t o f 10. T h e in e q u ity o f
su ch a p r o g r a m w h en c o m p a r e d to a d m iss ion s f o r o th ers is e n o rm o u s .
O n ly o n e o u t o f 3 0 to 4 0 a p p lica n ts w as a d m itte d u n d e r th e reg u la r
p r o g r a m .
It is tri
strated that
tory prohili
ployment—i
of the pervn
of past dee;
have themtH
hindrance o
to special ot
vantage of
key problen
impairing tl
regard to tl
shown that
Barring
sion proccri
because of r.
lems of disa>
coming culti
the educatif'
deprived nti
courage apj
and engage
and institufi
of disadvani
satory cduc.
and during s
have handica
disclose any
the record s
was chosen ;;
representatii
itioner’s admis-
hieved without
xtent on race.
I the “ compelling
iat a govenimcnt
ial discrimination
achieved in any
teen met here by
ly n eu tra l in d ica to rs
■ n iittee co n s id e r s th e
g r o u p as a n e lem en t
p r iv a tio n . . . .
ien ts a d m itte d u n d e r
'is c la im is a lle g e d ly
a m e fr o m a p o o l o f
o f th e g r o u p o f fe r e d
i a n d , in rea lity , w ith
^ ^ o t e d a re q u a lified .
^ B i t y its c la im d e fy
^ P s io n in 1973 u n d er
red b eca u se th e y w e r e
’ a rg e p e r c e n ta g e w e r e
’ ty s tu d en ts w e r e a c -
fg ica l to a ssu m e th a t
F o r e x a m p le , D r .
is fr o m th e s u b c o m -
a p p lica n ts w h o e ith e r
ry g ra d es in , re q u ire d
fu lfilled p r e re q u is ite s ,
m e n d e d a lso fa i le d to
p e a r fr o m th e r e c o r d
r ce p te d c h o s e n o t to
ed . th e re lev a n t p o o l
10. T h e in e q u ity o f
r o th ers is e n o r m o u s ,
led u n d er th e re g u la r
It is true, unfortunately, that experience has demon
strated that the mere existence of constitutional and statu
tory prohibitions of discrimination—in education or em
ployment—is not enough to erase the cumulative effects
of the pervasive and deeply rooted discriminatory practices
of past decades. Those members of minority groups who
have themselves suffered special educational and economic
hindrance on the basis of their race arc clearly entitled
to special educational help to enable them to take full ad
vantage of the legal requirements of equal treatment. A
key problem for our society is to accomplish this without
impairing the right of individuals to be considered without
regard to their race. We submit that petitioner has not
shown that that cannot be done.
Barring the University of California from using admis
sion procedures which treat applicants differently solely
because of race would not bar it from considering the prob
lems of disadvantaged students and assisting them in over
coming cultural or economic handicaps, thereby expanding
the educational opportunities of our nation’s historically
deprived minorities, among others. A school could en
courage applications from all groups in the community
and engage in particularly vigorous recruiting in areas
and institutions where there are likely to be large numbers
of disadvantaged students. It could also provide compen
satory educational preparation, both prior to admission
and during school attendance, for those whose backgrounds
have handicapped them scholastically. The record does not
disclose any effort by petitioner in this direction. Rather,
the record suggests that the expediency of racial quotas
was chosen as the first and only effort to increase minority
representation in the school.
53
m
ji
K
ti
tg
A
li
it
&
;%
&
More imi
chotomy in it
it in practice
moved direct
chanical crib
a key factor
experience d
alternatives,
which was “
n. 41).
In view o
tives to ract
without supp
grace. Tliei
petitioner’s I
alternatives
nificant mint'
has not trie
that they hat
Finally, v
for petitione
as an admi
“ would simi
grams’ ’ (Br.
below is atlii
all further a
Faced with these facts, petitioner is forced to suggest
that the issue here is a. choice between, on the one hand,
the kind of racial preference it has adopted and, on the
other, elevation of “ the role of numerical indicators in an
arid conformity to a concept of formal equality” (Br.,
p. 32); or “ the mere elimination of formal barriers against
minorities” (Br., p. 35); or adopting “ the assumption
that students with the highest numerical indicators will
necessarily be the best doctors” (Brr, p. 50).27 The court
below expressly rejected this false dichotomy. It empha
sized that its condemnation of race in petitioner’s admis
sion policy did not mean that admissions must be based
exclusively or primarily on academic test scores. It said
(553 F. 2d at 1163, 1166):
We observe and emphasize in this connection that
the University is not required to choose between a
racially neutral admission standard applied strictly
according to grade point averages and test scores, and
a standard which accords preferences to minorities
because of their race.
# * *
While minority applicants may have lower grade
point averages and test scores than others, we are
aware of no rule of law which requires the University
to afford determinative weight in admissions to these
quantitative factors.
# # #
We reiterate, in view of the dissent’s misinterpre
tation, that we do not compel the University to utilize
only “ the highest objective academic credentials” as
the criterion for admission.
2 7 . T o s u p p o r t th is a rg u m e n t, s o m e o f th e amici c o m p a r e th e
p r o p o r t io n o f m in o r ity g r o u p m e m b e rs in s tu d en t b o d ie s c r e a te d w ith
ra c ia l p r e fe re n ce s w ith th e p r o p o r t io n in o th e rs cre a te d w ith n o k in d
o f a ffirm a tiv e a c t io n e ffo r t . P la in ly , the co m p a r is o n sh ou ld , b e w ith
p r o g r a m s in w h ich th e m ea su res su g g e s te d a b o v e w e r e u sed .
2S. W it h ■
g r o u p app lican
s io n s o ffice r s h
m e n t” (J o h n /
t io n , in th e fo r
cod to suggest
the one hand,
d and, on the
ulicators in an
quality” (Br.,
irriers against
!te assumption
indicators will
).27 The court
ay. It empba-
iioner’s admis-
must he based
cores. It said
onnection that
use between a
pplied strictly
i‘st scores, and
to minorities
• lower grade
others, we are
the University
ssions to these
's misinterpre-
orsity to utilize
‘Credentials” as
■mid compare the
odies created with
nted with no kind
m should be with
.ere used.
More important than the University’s use of this di
chotomy in its brief is the fact that it has obviously applied
it in practice. There can be no doubt that the University
moved directly from exclusive or primary reliance on me
chanical criteria to an admission program that made race
a key factor from the beginning. With but two years of
experience during which there was no effort to consider
alternatives, the University switched directly to an effort
which was “ race-conscious from the outset” (Br., p. 34,
n. 41).
In view of this, petitioner’s assertion that the alterna
tives to race suggested by the court below arc “ wholly
without support in the record” (Br., p. 7) comes with little
grace. There is at least an equal lack of support for
petitioner’s flat assertion that the lower court’s proposed
alternatives are “ illusory” and would not “ lead to sig
nificant minority participation” (Br., p. 14). Petitioner
has not tried these alternatives and it offers no evidence
that they have been adequately tried elsewhere.23
Finally, we believe that it is peculiarly inappropriate
for petitioner to suggest that, if forced to stop using race
as an admissions criterion, most professional schools
“ would simply shut down their special-admissions pro
grams” (Br., p. 14). Docs this mean that, if the decision
below is affirmed, the Medical School at Davis will halt
all further affirmative action efforts? Rather, it suggests
28. With respect to one of them, efforts to seek out minority
group applicants, it has been noted that some medical school admis
sions officers have given “ no more than lip service to black recruit
ment” (John Z. Bowers, MD, President. Josiah Macy, Jr. Founda
tion, in the foreword to Odegaard, supra).
3 b®
mmm
06
that expediency has been chosen over constitutional re
quirements and that numerical glosses are all the Univer
sity is willing to offer.
Schools may and, we think, should evaluate both grades
and test scores in the light of a candidate’s background;
whether he came from a culturally impoverished home; the
nature and quality of the schools he attended; whether
family circumstances required him to work while attending
school; whether he chose to participate in athletics, the
orchestra, school newspaper, literary magazine, campus
government; whether he had demonstrated a concern and
interest in the broader community by political activity or
volunteer work'among the sick or underprivileged; and
whether he had manifested leadership, industry, persever
ance, self-discipline and intense motivation. As the court
below recognized, all of those factors may constitutionally
and legitimately be considered by the school.-0 In sum,
we believe that weight should bo given to the reality that
some disadvantaged candidates have demonstrated the
capability of surmounting handicaps, whether such handi
caps were occasioned by discrimination, poverty, chronic
illness or other factors, because grades and test scores
alone may not measure the true potentialities of such
candidates. , |
!
Moreover, if petitioner were to conclude that the medi
cal profession as presently composed fails to serve the
. - — i
29. Petitioner suggests that reducing one applicant’s chance of
admission by using such factors to favor another applicant is not j
legally distinguishable .from consideration of the factor of race (Br., (
p°54). This ignores the fact that the Fourteenth Amendment re- j
quires that discrimination on the basis of race be treated entirely
differently from discrimination on other grounds. See Point I,
supra.
i
(r
l
disadvantagi
sider whethe
or ethnicity,
those groups
it could exp
missions pro
mitmeut to s-
barrio or Im
All of tin
tional opport
ly deprived i:
economically
offend the C<
we submit, i
basis of ram
process as to
lion of meml
Programs
vautaged mi
schools shoub
The initiativi
June 27, 1977
courts may or
tion program-
to help black <
illegally segr
30. It has 1
minority group
minority group
demanded of th
the opportunity
01
‘vcr constitutional ro
cs are all the Univer-
■1 evaluate both grades
ndidate’s background;
ipoverishcd home; the
ho attended; whether
> work while attending
ipate in athletics, the
rv magazine, campus
-trated a concern and
>y political activity or
underprivileged; and
ip, industry, persever-
ivation. As the court
> may constitutionally
the school.29 In sum,
.•on to the reality that
demonstrated the
^P.'hether such handi-
tion, poverty, chronic
'■ados and test scores
potentialities of such
onclude that the medi-
cd fails to serve the
one applicant’s chance of
■ another applicant is not
of the factor of race (Br.,
ourteenth Amendment re-
■f race be treated entirely
grounds. See Point I,
disadvantaged elements in society, then it could also con
sider whether applicants for admission, irrespective of race
or ethnicity, manifest a genuine commitment to servo
those groups currently lacking adequate service.30 Indeed,
it could expressly offer special consideration in the ad
missions process to those who enter into a binding com
mitment to serve for a specified period in an urban ghetto,
barrio or Indian reservation.
All of these procedures would result in greater educa
tional opportunities for members of our society’s historical
ly deprived minorities, as well as other applicants who arc
economically and culturally deprived; none of them would
otfend the Constitution. But what the school may not do,
wo submit, is to classify applicants for admission on the
basis of race or ethnicity and so structure its selection
process as to admit an essentially predetermined propor
tion of members of certain groups.
Programs designed to augment the numbers of disad
vantaged minority individuals attending professional
schools should not await the professional school threshold.
The initiatives must begin much earlier. As recently as
Juno 27, 1977, this Court unanimously held that Federal
courts may order school districts to provide remedial educa
tion programs, such as remedial speech and reading classes,
to help black children recover from the effects of attending
illegally segregated schools. Millikcn v. Bradley, -15
30. It has been noted that there is no reason to assume that
minority group graduates will necessarily choose to serve in the
minority group community. Indeed, it is clear that this cannot be
demanded of them. Obviously, they must have both the right and
the opportunity to practice wherever they wish.
The probl
complex one.
formancc vali
mission to in-
free selection
wherever tlie;
to nnivorsitie
dilliculty shot
to enable then
The raci
Medical Scl
dealing witl
The cases
judge below
school admis-
those involvii
lie elemental4;
to remedy sp
particular in
other areas,
distinguislnib
tion or prefei
ited number
tion.
A. The Sch<
The schoo
bar in that th
all of whom, i
U.S.L.W. 4873 (1977). We strongly endorse such remedies.
We believe, too, that vigorous efforts should be made at
the junior high school level to identify promising disad
vantaged students, especially in poor neighborhoods and in
schools with largo minority group enrollments, so as to
provide at this early stage the necessary guidance for them
to plan for professional careers.31 On the senior high
school level, there is need for additional federally funded
remedial programs, such as Upward Bound and College
Discovery, to stimulate and to assist students who appear
to have the capabilities for professional careers but who,
because of limiting economic and cultural circumstances,
may have no such aspirations or prospects.
Moreover, no promising student should be excluded from
college, graduate or professional school because of lack of
funds. There is a critical need to expand public college
open enrollment progranls for high school graduates, as
has been done in the City University of New York, coupled
with financial aid and part-time opportunities, to facilitate
attendance by disadvantaged students. Subsidized summer
institutes for disadvantaged college students who aspire
to be admitted to medical school should be made available to
enable such students to actualize their potentialities and to
compete successfully with other aspirants.
31. “The predominantly Black National Medical Association
has started a nationwide recruitment campaign for more Black medi
cal students. ‘We’re not only trying to define and seek out the bright,
>°ung medical student, explained the NMA board member, 'Dr.
.Ross Miller, but we also want to do whatever is necessary to sec
that that student is successful in finishing his medical courses and
becoming a good physician.’ NMA members will help young Black-
students as early as the ninth grade, plan the curricula that offers
them a solid background in the sciences.'* Fleischman, Let’s Be
Human, supra, December 1973—January 1974.
59
o such remedies,
mid be made at
promising disad-
iborhoods and in
huents, so as to
uidance for them
the senior high
federally funded
miul and College
louts who appear
careers but who,
al circumstances,
’ s.
be excluded from
1‘causo of lack of
ml public college
ml graduates, as
cw York, coupled
f \es, to facilitate
sidized summer
dents who aspire
made available to
lentialitics and to
Medical Association
for more Black medi-
■d seek out the bright,
hoard member, Dr.
r is necessary to see
medical courses and
vill help young Black
curricula that offers
hleischman. Let’s Be
The problem of standards inevitably is a difficult and
complex one. Every effort should be made to achieve per
formance validation of all examinations and criteria for ad
mission to institutions of higher learning. Genuinely bias-
free selection standards urgently need to be implemented
wherever they may be absent. Once students are admitted
to universities, on whatever level, all those who encounter
difficulty should receive as much help as they may require
to enable them to qualify for graduation.
P O I N T F O U R
The racial preferential treatment policy of the
Medical School is not sanctioned by past decisions
dealing with correction of illegal discrimination.
The cases relied upon by petitioner and by the dissenting
judge below to justify use of racial criteria in medical
school admission procedures fall into three basic classes:
those involving the desegregation of racially separate pub
lic elementary and secondary school systems, those seeking
to remedy specific acts of employment discrimination in a
particular industrial establishment, and those involving
other areas. All three groups of cases are fundamentally
distinguishable. None upholds the use of racial classifica
tion or preference in the admission of applicants to a lim
ited number of places in a particular educational institu
tion.
A. The School Cases
The school desegregation cases differ from the case at
bar in that they involve a pool of white and black students
all of whom, regardless of their background or educational
pfeg §
t f i
60
potential, must be admitted and educated by ther particular
system. Race is used only to determine placement m a
particular unit of the school system. No student has a
constitutional right superior to any other student to attend
a particular school in the system. Therefore, when race is
used in that placement procedure in order to achieve a
valid and constitutionally mandated public educational ob
jective, i.e., integrated public schools, no one has been
“ preferred” and no one has been deprived of equal protec
tion of the laws. All students have obtained what state and
Federal Constitutions guarantee: a public education in an
integrated school. That is far different from the situation
at bar. Here, racial classifications have been instituted to
determine who will fill the limited number of seats avail
able. As a result of the operation of this admissions proce
dure, Bakkc, because of his race, has been denied a medical
school education entirely.
The University has argued that this distinction is not
apposite on the ground that racial classifications in the
service of school integration inconvenience non-minorities.
We submit that the court below correctly disposed of that
argument (553 P. 2d 1152, 1160-1161):
Whatever the inconveniences and whatever the tech
niques employed to achieve intergration, no child is
totally deprived of an education because he cannot at
tend a neighborhood school, and all students, whether
or not they are members of a minority race, are subject
to equivalent burdens. As the Supreme Court has said
numerous times since Brown v. Board of Education
(1954) 3 4 7 U. S. 483, there is no right to a segregated
education. The disadvantages suffered by a child who
must attend school some distance from his home or is
transfer
cannot 1 )
sional ei
Furthern
proved eonsi
bodies solely
subject to ill'
burg Board
Him State B'
Green v. Co;
As this (
Education v
neutral “ coi
viously segr
isc of B row
one “ tool a!
tutional obi
terns” (402
lishment of
trict and the
upheld dese
the allocate>
in the systc
Here, tie
recently est;
32. This
scheme order
school distric
the district tc-
the racial mix
dena C ity Bu
44 U.S.L.W.
61
tted by the particular
mine placement in a
i. No student has a
: her student to attend
icrefore, when race is
i order to achieve a
mblic educational ob
is, no one has been
rived of equal protcc-
tained what state and
mblic education in an
nt from the situation
ive been instituted to
umber of seats avail-
! his admissions proce-
' 'een denied a medical
his distinction is not
Ossifications in the
lice non-minorities,
■ctly disposed of that
d whatever the tech-
rgration, no child is
because he cannot at-
all students, whether
■ rity race, are subject
preme Court has said
Board of Education
right to a segregated
Ifered by a child who
from his home or is
transferred to a school not of his qualitative choice
cannot bo equated with the absolute denial of a profes
sional education, as occurred in the present case.
Furthermore, in the school cases, the courts have ap
proved consideration of the racial composition of student
bodies solely as a remedy to desegregate schools previously
subject to illegal segregation. Swann v. Charlottc-Mccklen-
burg Board of Education, 402 U. S. 1 (1971); North Caro
lina State Board of Education v. Swann, 402 U. S. 43 (1971);
Green v. County School Board, 391 U.S. 430 (1968).
As this Court noted in North Carolina State Board of
Education v. Swann, supra, the adoption of apparently
neutral “ color blind” school assignment plans by a pre
viously segregated system would render illusory the prom
ise of Brown for it would deprive school authorites of the
one “ tool absolutely essential to fulfillment of their consti
tutional obligation to eliminate existing dual school sys
tems” (402 U.S. at 46). To assure the effective disestab
lishment of an officially maintained segregated school dis
trict and the creation of a “ unitary system,” this Court has
upheld desegregation plans which take race into account in
the allocation of the student body among the various schools
iii the system. 3 2
Here, there is no showing of prior discrimination by the
recently established Medical School at Davis. Furthermore,
32. This Court has held that, once a school attendance zone
scheme ordered by a court as a remedy for illegal segregation by a
school district has achieved its objective, the court may not require
the district to continue to rearrange its zones in order to insure that
the racial mix desired by the court is maintained in perpetuity. P a sa
dena City Board of Education v. Spangler, ------ U.S. ------ (1976),
44 U.S.L.W. 5114 at 5117.
CrJ
there is no evidence, and it is not claimed by any party, that
the University as a whole has ever engaged in racial dis
crimination or segregation. Tims, this case lacks the ele
ment which conspicuously distinguishes the school cases—
the use of racial classifications solely and only to the extent
necessary to remedy illegal discrimination practiced by the
particular school system. Here the University admittedly
seeks to use racial classifications to attempt to remedy ac
tion and inaction not by itself but by other medical schools,
by hospitals, by medical societies and by society in
general. 3 3
There is a vital distinction, wo submit, between remedial
action to correct specific illegal acts of discrimination and a
general rule allowing preferential treatment to seek to undo
the effects of past discrimination by society at large. Cor
rection of conduct committed by an individual defaulter can
be and has been restricted to situations in which the default
is precisely delimited and clearly established. Further
more, the relief given is tailored to correct the particular
situation and is usually imposed under the authority of a
court or other tribunal. _
It is quite different to give every state university, and
all other official bodies as well, license to ignore the con
stitutional prohibition of racial discrimination whenever
they allege it is necessary to do so to correct the effects
of past societal discrimination. There is no reliable pro-
33. Petitioner states that, in its discussion of the denial of op
portunities in medical training and practice, it has focused on the
situation with respect to blacks because the data on Mexican-Amcri-
cans, American Indians and other minority groups are sparse (Br.,
p. 21, n. 13. p. 23, n. 22). Vdc submit that substantial departures
from the normal constitutional prohibition of racial discrimination
cannot he allowed to rest on such a shaky foundation.
cedurc for di
discriminate
the institute
determining
societal di sci
ential treatm
past discrinr
point the rigl
there are no a
are nccessary
be the benefn
Relaxatioi
treatment sin
The effect, wi
right nullilie.'i
34. Petition
programs like ti
for themselves :
pious hope it ui
cans, American
or reduced the
gram as they .
43, n. 52). Ti
administrators v
or other profess
Petitioner's owe
has admitted a
total class of It
admit Asians nr
I
ccdurc for determining the existence or scope of such past
discrimination or its impact, if any, on the operations of
the institution in question; nor are there standards for
determining how recent, how pervasive or how gross
societal discrimination must have been to warrant prefer
ential treatment, what correlation there must be between
past discrimination and present handicaps or at what
point the right to a racial preference terminates. 3 4 Finally,
there are no agreed-upon ways to determine what measures
are necessary to effect a remedy or even what groups shall
be the beneficiaries of such preference.
Relaxation of the constitutional requirement of equal
treatment should not bo permitted on so vague a basis.
The effect, we submit, would be hardly different from out
right nullification of the whole concept of equal protection.
(53
34. Petitioner flatly asserts that “ the underlying philosophy of
programs like the one at Davis is that they will eliminate the need
for themselves and then disappear" (Br., p. 42). til support of this
pious hope it offers only the fact that one law school has eliminated
cans, American Indians and other minority groups are sparse (Br.t
or reduced the participation of two racial groups in its special pro
gram as they were accepted through general admissions (Br.. p.
43, n. 52). This one incident can not be regarded as proof that
administrators will return to color-blind admissions policies at Davis
or other professional schools as soon as they are no longer needed.
Petitioner's own statistics show that its general admissions process
has admitted a substantial number of Asians (r.p.. 13 out of the
total class of 100 in* 1973) but that it is nevertheless continuing to
admit Asians under the Task Force Program (Br., p. 4).
• any party, that
‘■d in racial dis-
'O lacks the ele
ct school cases—
nly to the extent
practiced by the
rsity admittedly
■ >t to remedy ac-
medical schools,
by society in
■etween remedial
rimination and a
t to seek to undo
v at large. Cor-
tal defaulter can
> hick the default
i sited. Furtker-
t ke particular
uthority of a
• university, and
• ignore the con-
nation whenever
irrect the effects
no reliable pro
of the denial of op-
lias focused on the
on Mexican-Ameri-
ips are sparse (Br.,
bstantial departures
acial discrimination
ion.
ancc are forbiv
practices are n
Metal Lathers
2 d 408 (2 nd Cii
of discriminati
gated seniority
work force is
constitutional .•
tained. In a i
limited numbe
Under these i
superimposed
effectively reu
tern. It would
tion. Accordi
necessary to
remedies. A-
Kirkland v. A'
520 F. 2d 420
dev. 97 S. Ct.
rights and o|"
fications base
of a democrai
B. Employment Cases
The employment cases cited by the dissent below
like the school cases—arc characterized by judicial findings
of specific prior discriminatory acts by the particular in
stitution or employer involved. 3 0 The problem in formu
lating a remedial order is to overcome the residual effects
of past discrimination by that employer. As noted by the
Second Circuit, “ while quotas merely to attain racial bal-
35. “Title VII” (42 U.S.C.. Section 2000e. ct scq.) decisions hi-
clude Franks v. Foreman Transportation Co.. Inc.. 96 S. Ct. 1251
f 19765 ; United States v. Wood. IFire and Metal Lathers Inter
national Union, Local No. 46 (2d Cir. 1973). 471 F 2d 408. cert,
den. 412 U.S. 939; United States v. Local Union No. 21-.. Inti
Brotherhood of Electrical Workers (6th Cir. 1973). 472 F. _d 634:
United States v. Ironworkers Local S6 (9th Cir. 19/1), 443 F. -u
544 cert den. 404 U.S. 9S4; Patterson v. American Tobacco Com
pany (4th Cir. 1976), 535 F. 2d 257, cert, den 97 S Ct. 314• (19/6).
“ Executive Order” (Exec. Order 11246, 30 C.F.R. 12319 as
amended 32 C.F.R. 14303: 34 C.F.R. 12985) decisions: See■. Con
tractors Ass'n of Eastern Pa. v. Secretary of Labor (3d Cir. 19/1),
442 F. 2d 159, cert. den. 404 U.S. 854 (Philadelphia Plan) ; IFcincr
v Cuyahoga Community College District (1969), 19 Ohio St. 2d
35 (949 N.E. 2d 907) (Cleveland Plan) ; Joyce v. McCrane (D.N.J.
1970) 320 F. Supp. 1284 (Newark Plan) ; accord Southern Illinois
Builders Ass’n v. Ogilvie (7th Cir. 1972). 471 F. 2d 680 (state
affirmative action plan) : Associated Gen. Contractors of 3/(/a\>., Inc.
v. Altshuler (1st Cir. 1973), 490 F. 2d 9, cert. den. 416 U.S. 9o7
(1974) (same).
36 Judge Tohrincr asserted that this Court, in Washington v.
Davis, 436 U.S. 229 (1976), explicitly approved benign racial classi
fications in recruiting. The Washington majority had considered the
police department’s “ affirmative efforts . . . to recruit black officers to
be evidence negating “ any inference that the Department discrimi
nated on the basis of race or that ‘a police officer qualified on the color
of his skin rather than ability.’ ” Id. at 246. This language makes it
evident that the Washington majority did not consider that the spe
cial recruiting efforts made by the department had the effect of
excluding anyone from a position because of race. If a lecruitnient
program may reach out to previously unsolicited or tiudersolicitcd
semnents of the community, it does not follow that such a program
may constitutionally be permitted if it is part of a system to exclude
anyone from benefits— employment or a place at medical school—on
the basis of race.
37. See. c.<
F. Supp. 1265,
on racial classif
erate resentmen
rary quota sys
cause no other
without impair’
Inc. v. Civil S>
1973) (quota
Bccchcr, 459 F
relief termed “ c
Shield Club v. (
(quota ordered,
individual and
65
dissent below33—
• judicial findings
i he particular in-
roblcm in formu-
e residual effects
As noted by the
attain racial bal-
•t scq.) decisions in
die., 96 S. Ct. 1251
'ctal Lathers Intcr-
171 F. 2d 408. cert,
nioii No. 212, lul l
-3), 472 F. 2d 634;
r. 1971), 443 F. 2d
rican Tobacco Com-
7 S. Ct. 314 (1976).
•■0 C.F.R. 12319 as
decisions: See Con-
bar (3d Cir. 1971),
pliia Plan) ; Weiner
“>), 19 Ohio St. 2d
v. McCranc (D.N.J.
Southern Illinois
V 2d 680 (state
:etors of Moss., Inc.
. den. 416 U.S. 957
I. in Washington v.
benign racial classi-
had considered the
•uit black officers" to
•epartment discrimi-
- lualifted on the color
•is language makes it
insider that the spe-
•t had the effect of
e. If a recruitment
'd or undersolicitcd
diat such a program
a system to exclude
t medical school—on
ance are forbidden, quotas to correct past discriminatory
practices arc not . . . ” United States v. Wood, Wire and
Metal Lathers International Union, Local No. 46, 471 F.
2d 408 (2nd Cir.), cert. den. 412 U.S. 939 (1973). Because
of discrimination in hiring and promotion policies, segre
gated seniority lines, and non-job-related tests, the existing
work force is not composed as it should have been had
constitutional standards of non-discrimination been main
tained. In a discriminatorily created work force, only a
limited number of job openings occur from time to time.
Under these circumstances, a racially ‘ ‘neutral” policy
superimposed on a racially shaped pattern would not
effectively remedy and disestablish the discriminatory sys
tem. It would instead, perpetuate the effects of discrimina
tion. Accordingly, the courts have reluctantly3 7 found it
necessary to employ racial classifications in fashioning
remedies. As recently stated by the Second Circuit in
Kirkland v. New York State Dept, of Correctional Services,
520 F. 2d 420 (2nd Cir.), reh. den. 531 F. 2d 5 (1975), cert,
den. 97 S. Ct. 1122 (1976), “ [t]he replacement of individual
rights and opportunities with a system of statistical classi
fications based on race is repugnant to the basic concepts
of a democratic society.”
37. See. c.g ., V ulcan S ociety , v. Ciz'il S erv ic e C om m ission . 360
F. Supp. 1265, 1277-78, 5 FEP Cases 1225. 1239-40 (remedies based
on racial classifications called “counterproductive.” tending to “ gen
erate resentments"), afi’d, 490 F. 2d 387 (2nd Cir. 1973) (tempo
rary quota system approved “ somewhat gingerly" and “ only be
cause no other method was available for affording appropriate relief
without impairing essential city services") : B rid g ep ort Guardians,
In c. v. C ivil S erv ic e C om m ission . 4S2 F. 2d 1333. 1340 (2nd Cir.
1973) (quota relief approved “ somewhat gingerly") ; C astro v.
B eech er , 459 F. 2d 725, 736 (1972) (effort at compensatory racial
relief termed “crude” to “ be pursued with sensitivity and restraint” ) ;
S h ield C lub v. C ity o f C leveland . 370 F. Supp. 251 (N.D. Ohio 1973)
(quota ordered, remedy choices found freighted with “ weakness and
individual and group inequities” ).
C. The Other
The cases i
cation™ cited I
entities which. 1
which the dec!
fields, as in ct
provides “ the 1
dial order” ag:
U.S. 2S4, 297
applying the r
717 (1974). M
politan area s-
templatcd a ju
local governnu
constitutional
U.S. at 296.
As we havi
race has been
be in a school
courts have ct
there be a hD
involved. Tli
groups, whetln
39. Brooks '
grand juries): 1
F. 2d 1122 (2d
Gautrcaux v. CL
111. 1969) (sain
the majority bet
(selection of sc!
Board of Educa:
sion of the right
to assume an c
system. Ill am
But admission to a class at a university is funda
mentally different. Each year all the positions are open
for selection. There is no question of filling a few vacancies
in an existing discriminatorily created work force. Rather,
to use the employment analogy, it is as though the whole
work force were hired anew each year. Thus, there is no
issue of perpetuating discrimination (which here did not
exist in any event) and no need or justification for impos
ing racial classifications or preferences in the annual ad
mission of an entire new school class. 38
Petitioner" also relies on Morton v. Mancari, 417 U.S.
535 (1974), in which this Court upheld a federal statute
granting preference for American Indians in federal gov
ernment employment (Br., pp. 53, 55). However, this
Court was careful to narrow its decision in that case to
the “ unique legal status of Indian tribes under federal
law.” The preference in that case, it said, was “ granted
to Indians not as a discrete racial group, but rather, as
members of quasi-sovereign tribal entities whose lives and
activities are governed by the BIA in a unique fashion”
(417 U.S. at 554). The preference at Davis is purely racial
and without any such intimations of long-established and
sanctioned separate status. Indeed, the alleged objective
is integration rather than preservation of a quasi-sovereign
people.
66
3S. If an analogy is to be made from petitioner’s “ remedial” pro
gram in education to the employment situation, it would mean im
posing quota requirements on all employers in an Industry wherever
it was regarded as public knowledge that some employers in the in
dustry had engaged in discrimination.
.orsity is funda-
isitions arc open,
i" a few vacancies
rk force. Rather,
I liougli the whole
Thus, there is no
uch here did not
cation for impos-
iu the annual ad-
I
hmcari, 4-17 U.S.
a federal statute
is in federal gov-
However, this
i in that case to
•s under federal
id, was “ granted
p, but rather, as
^^^hose lives and
Unique fashion”
s is purely racial
-̂established and
alleged objective
i quasi-sovereign
■cr's “ remedial” pro-
it would mean im-
a industry wherever
employers in the in-
C. The Other Cases
The cases in fields other than employment and edu
cation3 3 cited by the dissent below also involve public •
entities which had specific histories of discriminatory acts
which the decisions sought to overcome. In these other
fields, as in education, violation of constitutional rights
provides “ the necessary predicate for the entry of a reme
dial order” against the offender. Hills v. Gautreaux, 425
U.S. 284, 297 (1976) (public housing, tenant selection),
applying the reasoning of Millilcen v. Bradley, 418 U.S.
717 (1974). Mill Urn had rejected a comprehensive metro
politan area school desegregation plan “ beeause it con
templated a judicial decree restructuring the operation of
local government entities that were not implicated in any
constitutional violation.” Hills v. Gautreaux, supra, 425
U.S. at 296.
As we have shown in every instance where the use of
race has been permitted for remedial purposes, whether it
be in a school or voting district or in fact anywhere, the
courts have consistently adhered to the requirement that
there be a history of racial discrimination by the entity
involved. They have not permitted private parties or
groups, whether university faculties or employers, to deny
39. B r o o k s v. B eto , 366 F. 2d 1 (5th Cir. 1966) (selection of
grand juries); O tero v. H czv Y o rk C ity H ou sin g A u th o rity , 484
F. 2d 1122 (2d Cir 1973) (public housing tenant selection); and
G a u trea u x v. C hicago H o u sin g A u th o r ity , 304 F. Supp. 736 (N.D.
111. 1969) (same). The one decision considered an exception by
the majority below, P o rcc lli v. T itus. 431 F. 2d 1254 (3d Cir. 19/01,
(selection of school administrators), rests uncertainly on Brozon v.
B oa rd o f E d u cation . Even if it might be considered a proper exten
sion of the rights of school children to desegregated classes, it seems
to assume an existing segregation of pupils in the subject school
system. In any case, however, it is of doubtful validity.
admission to schools or jobs on the basis of race except as
a specific corrective measure carefully delimited as to area
and time and to affect only those guilty of discrimination.
Neither universities nor employers have received ju
dicial sanction to discriminate on racial grounds to satisfy
their own notions of what may be necessary to cure soeietal
discrimination in the past.
The case of United Jewish Organizations of Williams-
hurgh v. Carey,------U .S.-------97 S. Ct. 1251 (1976), does
not support petitioner’s effort to justify the assumption
of this power. The legislative redistricting there approved
as a remedial measure did not deprive anyone of the right
to vote. Thus, as in the school cases, no individual was
denied a benefit.
More important, none of the protections which Justice
Brennan relied on to insure that the proper balance was
struck between the admitted dangers of race-centered reme
dies and the need for effective social policies promoting
racial justice is present in this case. No responsible legis
lative body has directly confronted the undesirable “ coun
ter-educational costs” of opting for an activist race
conscious remedy. There is no Congressional legislation
such as the Voting Rights Act, enacted after “ voluminous”
legislative consideration and representing an unequivocal
and well defined Congressional consensus about not only
the existence of the “ insidious and pervasive” evil of vot
ing rights violation but also the need for race-centered
measures.
Finally, not <
because the oppo
dividual opportu
an interest one si
no protection, a?
burgli, from the
the Medical Scho
led the Court i
productive aspec
case. These asp
in their capacity
We submit tl
ciple of racial ■
permits each get
was disadvanta
discriminating a
The process is 1
it is caught up
sures. There is
justification for
to compensate f
School’s action
tation to black
and Asian-Amo
by the United
includes Hispa’
tinguish among
of stereotypes t
race except as
united as to area
f discrimination.
ave received ju- -
'•ounds to satisfy
y to cure societal
'>ns of Williams-
Jol (1976), does
the assumption
g there approved
one of the right
t individual was
•*s which Justice
per balance was
''-centered reme-
Jj^es promoting
^^jonsible legis-
lesirable “ coun-
i activist race-
onal legislation
r “ voluminous”
an unequivocal
about not only
ive” evil of vot
er race-centered
Finally, not only is respondent’s deprivation total but,
because the opportunity to attend school is uniquely an in
dividual opportunity and not merely a means of advancing
an interest one shares with others, respondent here derived
no protection, as the complaining voters did in Williams-
biorgh, from the fact that other whites were represented in
the Medical School. Thus, none of the considerations which
led the Court in Williamsburgh to ignore the counter
productive aspects of race-centered remedies exists in this
case. These aspects remain unmitigated and unrestrained
in their capacity for mischief.
Conclusion
We submit that petitioner’s position sacrifices the prin
ciple of racial equality for a short term advantage. It
permits each generation to conclude that a prior generation
was disadvantaged and to repair the discrimination by
discriminating against members of the current generation.
The process is likely to bo interminable, particularly when
it is caught up in campus, community and political pres
sures. There is no cut-off principle. Though most of the
justification for the position is said to come from an effort
to compensate for slavery, there is no limit in the Medical
School’s action to descendants of slaves; there is no limi
tation to blacks; the policy includes Mexican-Americans
and Asian-Americans—those who were arguably wronged
by the United States and those who came recently. It
includes Ilispanic-Amcricans with no real effort to dis
tinguish among them. In short, it uses the grossest sort
of stereotypes to decide who “ deserves” an advantage..
TO
For the foregoing reasons, wo respectfully urge that
the judgment of the California Supreme Court be affirmed.
Respectfully submitted,
Howard L. Greenberger
Samuel Rabinove
American Jewish Committee
165 East 56th Street
New York, New York 10022
Tiiemis N. Anastos
Philip S. Makin
Hellenic Bar Association of Illinois
120 West Madison Street
Chicago, Illinois 60602
Anthony P. Krzywicki
Polish American Affairs Council
1600 Philadelphia
National Bank Building
Broad and Chestnut Streets
Philadelphia, Pennsylvania 19107
Julian E. Kulas
Ukrainian Congress Committee
of America (Chicago Division)
2236 West Chicago Avenue
Chicago, Illinois 60622
Attorneys
Alan M. Dershowitz
Of Counsel
Abraham S. Goldstein
Nathan Z. Dershowitz
American Jewish Congress
15 East S4th Street
New York, New York 10028
(212) 879-4500
Arthur J. Gajarsa
Italian-American Foundation
1019-19th Street. N.W.
Washington, D. C. 20036
T iiaddeus L. Kowalski
Polish American Educators
Association
120 South LaSalle Street
Chicago, Illinois 60602
Anthony J. Fornelli
LTnico National
1SS West Randolph Street
Chicago, Illinois 60601
for Amici Curiae
August, 1977
,.».w.- x~.*UTz.'*sJnw‘t'!r- tarw « or>r-sASLg.:* xx.7jr̂ zc~*?Jimrs.fr&rursmK*
IN THE
Stgarente (fes:t isf tip? Bitm&ft ©taks
October Term, 1977
No. 78-311
The R egents Of T he U niversity Of California,
P e t i t i o n e r
vs.
A llen B akee , Respondent
On Wrii Of Certiorari To The
Supreme Court O: CaBJcrnia
C O U N C IL C N
»rw?T?xB R IEF C F
ED U C A TIO N O PPO RTU N ITYT r* V
AS AMICUS CURIAE
R ichard 0 . H uber
Dean . B oston College L aw
School and Chairman,
Council on L egal
E ducation Opportunity
'Alfred A. Slocum
E xecutive D irector
Council on Legal
E ducation Opportunity
Of Counsel:
W ade <L H enderson
Associate Director
Council on L egal
E ducation Opportunity
818 Eighteenth Street, N ¥
Suite 9-10
Washington, D.C. 20006
Y&esz B xI.ON S. Ada Mi' D̂IJilZNS, iKC., Y/ASHIKLYON. D.C.
/
TABLE OF CONTENTS
c ~ ' Page
SlA T E M E N T °F CONSENT OF LlTXGANTS TO THE FILIN G OF
I h is A m icu s C uiuae B k i e f ............
I n terest of A m icu s C uriae . . . ^
S t a te m e n t ...................................................... # ̂ ̂ 0
S u m m a r y of A r g u m e n t ................. g
A rg u m en t .......................
1 S i & r Co" ; t “.f C fM otnl. erred in find'Q ihai the special minority admission program
P r !° m e t o l school at the University of Cali-
fomui wt Davis is purely voluntary ................. 7
A. Professional schools have traditionally relied
upon a system of admissions, which virtual!?
excludes Blacks and other minorities, although
nmny of those excluded are qualified if ad
nutted, to successfully matriculate 7
01 measuring’ devices employed as
pait ot the system of admissions may not be
S 2n ' f “ " “ -oHii-S criteria when it cor-
« - • * 17
C. Special admission programs, promoting racial
r “ ■“ U t - t i l l y m m iS od
has r-1 l,.d It, b Sho'™ “ professional school ms laded to promote racial inclusion in the
pm at,on or its traditional admission prac-
S s ° n P ° o1 ot 0-"n,ifiod rocial minorities
................................................................. 25
11 r °mf the decision of the California Supreme
Court is to disregard the g„idin«r hand r f 1 !
S = a d e r s , ip in enforcing t h ^ m f e S
.......................................................... 23
Conclusion
47
11
TABLE OF AUTHORITIES
Page
Cases : »
Albermarle Paper Go. v. Moody, 422 U.S. 404 (1975) .. 17
Brown v. Board of Education, 347 U.S. 483 (1954) . .20, 21,
22y 30
Castro v. Beecher, 459 F.2d 72;> (1st Cir. 1972) ......... 17
Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir.
1972) ...................................................................26,27,30
Civil Bights Cases, 109 U.S. 3 (1883)...........................20, 30
Qernnan v. Kipp, 45 L.W. 248 (W.D. Mo. April 7, 1971) 31
Criags v. Duke Power d Light Co., 401 U.S. 424
' (1971) ............................................................ 17,18,19,^3
Crings v. Duke Poiver d Light Co., 420 F.2d 1225 (4th
" Cir. 1970) ................................................................... 19
Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241 (1964)................................................................... 30
Jones v. Mayer, 392 U.S. 109 (1968)..............................• 30
Katscnhach v. McClung, 379 U.S. 294 (1964).................. 30
Katzenhach v. Morgan, 384 U.S. 641 (1966)................. 30, 31
Keyes v. District # 1, 413 U.S. 189 (1973) ..........20,23,30
Lau v. Nichols, 414 U.S. 563 (1974)................................ 30
Louisiana v. United States, 380 U.S. 320 (1970).......... 30
Loving v. Virginia, 388 U.S. 1 (1967) ............................ 27
McCulloch v. Maryland, 17 U.S. 316 (1819) ................. 30
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ...................................................................... lO 20
Milliken v. Bradley, 418 U.S. 71.7 (1974) ..................... 23
Missouri ex rel Caines v. Canada, 305 U.S. 337 (1938) 7
Plessy v. Ferguson, 163 U.S. 557 (1S96) .....................20, 21
Shapiro v. Thompson, 394 U.S. 618 (1969) ................... 25
)
Table of Authorities Continued iii
Page
Sipuel v. Board of Regents, 332 U.S. 631 (1948).......... 7
Strauder v. TVest Virginia, 10 0 U.S. 303 (1879).......... 18
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) .. 30
Swann v. Charlott-Mccklenburg Board of Education
402 U.S. 1 (1971)............. ! ....................................... 22
Sweatt v. Painter, 339 U.S. 629 (1950) ............. -..7,21,25
Tillman v. Wheat-IIaven Recreation Association 412
U.S. 431 (1973) .............................* ................ 30
United Jewish Organization of Williamsburg, Inc. v.
Carey, 45 U.S. L.W. 4221 (March 1 , 1977) . . . . . . 30
Vulcan Society v. Civil Service Commission 490 F 2d
383 (2nd Cir. 1973) ................................ ’ ........ ' n
Washington, Mayor of Washington, D.C. v Davis 426
U.S. 229 (1976) ..................................................’ ...17 18
Yiclc Wo v. Hopkins, 118 U.S. 356 (1886) ............. 18,19, 30
F ederal S tatutes , R egulations an d
E xecutive O rd ers :
45 C.F.R. § 80.3(b) (6 ) ................................................ ; 3 1
Civil Rights Act of 19C4, U.S.C. % 2000(a) et. scq.
(July 2, 1964) ........................................ ' ........ 1 3 1
2 0 0 0 °(.l(1964)' °.f 106i: , 42U ; S: a:
TiU5 Ri.g1'1.3 A °! ° f 19M' 42 U-S-a 17
Title IX, Part D of the Education Act. 20 U S C
§ 1134(n) et. seq. (June 23, 1972) ................. ' 3 1 32
Voting Rights Act of 1965, 79 Stat. 439, 42 U S C
§ 1973 et. seq.............................. " 0,........................................ UJ.
^IlSCELLANEOUS:
American Bar Association, Report of the Task Force
on 1 rofcssional Utilization (Chicago: Amer. Bar
.Assoc., 19to) . . . .1.......................................... 21 1 2
IV Table of Authorities Continued
Page
Bureau of Labor Statistics News, Table 10 (Jan. 17,
1977) ....................................................................... 5
Congressional Record, June 27, 1975 ........................... 33
Hearings before the Senate Subcommittee on Labor/
DHEW Affairs; Second Supplemental Appro
priation, FY 1976, II.R. 13172 ............. 9,16,35,36,37,
38, 39, 47
Law School Admission Council, Annual Report, An
nual Council Meeting, June 5-7, 1973 ................. 10
The Legal Educational Opportunity Program at
ULCA: Eight Years of Experience; The Black
Law Journal, Yol. IY, No. 3 ..............................12,13
Occupational Characteristics, 1970 PC(2)-74; TJ. S.
Department of Commerce, Bureau of the Census,
I 1. S. Government Printing Office, AVash., D. C. .. 8
President’s Committee on Civil Rights, To Secure
These Rights, 67 (1967) ............................................ 8
Racial Preferences in Higher Education: Political,
Responsibility and the Judicial Role, Terrance
Sand alow, 42 II. Chi. L. Rev. 653 (1975) ............. 29
Statistical Abstract of the United States, 405 (Table
650) (1975) ............. ....... ......................................... 5
Summary Table from 1970 Census: Number of Blacks
in Professional Occupations ..................... ......... 8
IN' THE
Supm tf fflnurl nf % United States
October Term, 1977
No. 76-811
The Regents Of T he U niversity Of California,
P e t i t i o n e r
vs.
A llen B anke, R esp ond en t
On Writ Of Certiorari To The
Supreme Court Of California
b r ie f o f the
COUNCIL ON LEGAL EDUCATION OPPORTUNITY
AS AMICUS CURIAE
CONSENT OF THE PARTIES
The Council on Legal Education Opportunity ap
pears Amicus, with consent of both parties, in sup-
p on of die position advanced by Pe t i t i on e r s . Letters
of Consent were filed with the Clerk of this Court
concurrently with the filing of this brief.
INTEREST OF THE AMICUS CURIAE
f m m 001" 1 , 0" . 1^ 1 Education Opportunity
(OLEO) consists o f representative delegates from
each of five sponsoring organizations: Tlie American
Bar Association, the Association of American Law
Schools, the La Baza National Lawyers’ Association,
the Law School Admission Council, and the National
Bar Association. It conducts a federally funded pro
gram designed to increase the number of Blacks, ethnic
minorities, and disadvantaged persons admitted to the
national bar. Because of a narrowly focused recruit
ment program and an economic eligibility require
ment, the overwhelming majority of CLEO partici
pants are members of low-income minority groups.
Annually, some two thousand (2,000) applications
for the CLEO program are received; and yet the pro
gram’s size is limited to two hundred (200) partici
pants. Acceptance in the program includes participa
tion in one of seven (7) institutes conducted each sum
mer with the cooperation of supporting law schools.
Within the summer institutes, participants become ac
climated to the law school environment; are introduced
to substantive law teaching materials and required to
demonstrate an ability to master them; and, are evalu
ated by law school faculty personnel for purposes of
determining law school potential.
Each participant who is not already admitted to law
school and achieves an institute evaluation^ lecom-
mending law school matriculation is assisted in gam-
in<r admission to law school by the institute director.
Because the summer institutes endure beyond most law
schools’ admission cycle, CLEO participants may be
given either a “ conditional admit” pending the out
come of the institute evaluation; or, in some instances,
the admission officer of a law school may choose o
“ leave a few slots open” in anticipation of positive
)
CLEO evaluations. Almost all CLEO students are ad
mitted to law school on a “ preferential” or “ special”
admission basis. (Once admitted to law school, the
CLEO student receives a living stipend of $500.00 for
each of six semesters of successful law school matricu
lation.)
Although the special admission program challenged
by Allan Bakke is underway at a medical school, the
court s ruling in this matter could have an impact upon
the CLEO program, which relies upon the existence of
special admission minority programs in law schools.
Therefore, CLEO desires a ruling from this court
which either has no effect upon current special admit
programs in law schools, or holds them to be constitu
tionally valid. '
STATEMENT
The Council on Legal Education Opportunity, as
amicus curiae, does not intend to present an exhaustive
analysis of all the constitutional issues both procedural
and substantive which arise out of the facts in this
case. Instead, it addresses those questions which per
mit its unique role as feeder to most minority admis
sions programs in law school to be of particular value
to tins Court and best represent the interests of its
participants—present, past, and future. Many of the
issues stemming from this case are the product of an
emotional fervor sweeping the nation hardly reflecting
the calm anticipated in the socially-disturbing sixties"
Issues of “ merit,” “ qualifications,” “ morals ”
rights,” and “ preferences” associated with special
admission programs in higher education abound. And
yet, the real story o f special admissions, i t s success
remains obscure. "’
' 3
4
Unfounded conclusions concerning tlie qualifications
of special admission program participants as we 1 a.
those ol the majority group applicants rejected hare
been reached, adopted and promulgated withkittle
basis in fact. Coordinated advertising campais .
nouncing public officials who speak out on these ques
tions, attest to the money invested m attempts o s\ c y
public opinion.
These exaggerated reactions to programs which col
lectively account for less than three (3% percent of
the professional school population are better under-
sloe ! When it is recognized that the ^ W -
attendant here are economic ones. B k
racial minorities, enjoy a very limited »l>aeofA ™ ,
ica’s economic resources and benefits p* « rpj_
i pvflusion from professional occupations. The
majority population has traditionally enjoyed the cco-
nomll ta ie associated with exclusive « “
professional job market and is being to d that loca lly
neutral “ fairness” requires such a result.
The oppression o f slavery and racial
, and has been an economic oppression. The dittoience
in'family incomes between majority and noiimajoii y
groups is startling: minority group :fannbos siivv ve
with median incomes loss than two-thirds that ot white
the United States. A »rv®y states Supreme Court for dlic
univcrsit? 01 C a , i ‘forr.ia, Davis; Davis, California 9-61 .
5
)
majority group families.2 In 1976 the unemployment
rate for racial minorities was almost double that of
the white m ajority3 at a time when this was one of the
major national concerns of the majority population.
Indeed, President Carter may well have gained the
presidency because of his recognition and attention to
this national concern.
Inflation threatens to wipe out much of the lifetime
economic gains achieved by middle class families;
while unemployment, a suggested solution to inflation,
threatens the lower middle class with poverty. Racial
minorities caught in this economic vise suffer doubly
because they are not privileged to the decisions affect
ing these economic conflicts.
To reverse the trend of racial discrimination in this
country which has endured through hundreds of years
of struggle, Blacks and other minorities must have
access to both the decision-making process and the lu
crative job opportunities o f professional status.
The monetary issue may not he the noblest of issues
for such a monumental struggle, and in the long run it
may not be as important as entrance into the nation’s
decision-making process at more significant levels; hut
it is a fundamental issue requiring the production and
review of accurate factual data to resolve this ever-
pervasive conflict.
Although this brief does not argue such questions as
the right of professional schools to focus upon race as
a factor in the admission process to prevent racial ex-
2 Statistical Abstract of the United States, 405 (Table 650)
(397a).
3 Bureau of Labor Statistics News, Table 10 (Jan. 17, 1977)
6
elusion as a group, amicus briefs in support of ibis
proposition are adopted.
The suggestion has been made that racial exclusion
through standardized testing because of its “ racially
neutral” character can be justified as the “ fault” of
the victims. W e think not.
SUMMARY OF ARGUMENT
I The Supreme Court of California erred in finding
that the special minority admission program of the
medical school at the University of California at Davis
is purely voluntary
A. Professional schools have traditionally ld ied
upon a system of admissions, which virtually excludes
Blacks and other minorities, although many of those
excluded are qualified, if admitted, to successfully
matriculate
P>. Testing or measuring devices employed as part
of the system of admissions may not be utilized as con
trolling criteria when it is certain that to do so effec
tively bars qualified racial minorities
C. Special admissions programs, promoting racial
integration, are constitutionally mandated when it can
be shown a professional school has failed to promote
racial inclusion in the operation of its traditional ad
mission practices while a pool of qualified racial mi
norities exists
II. To affirm the decision of the California Supreme
Court is to disregard the guiding hand of congres
sional leadership in enforcing the Fourteenth Ament -
ment
)
<■ ARGUM ENT
I. THE SUPREME COURT OF CALIFORNIA ERRED IN FINDING
THAT THE SPECIAL MINORITY ADMISSION PROGRAM OF
THE MEDICAL SCHOOL AT THE UNIVERSITY OF CALI
FORNIA AT DAVIS IS PURELY VOLUNTARY
A. *. rofosbional schools Have Traditionally Relied Upon a System
of Admissions, V/hich Virtually Excludes Blacks and Other
Minorities, Although Many of Those Excluded Are Qualified,
if Admitted, to Successfully Matriculate
A dctcimination that Blacks and other racial mi-
noi ities have been historically excluded from majority
professional schools and, consequently, the professions
themselves, is certainly not difficult to reach.4 IIow-
evei, the more important aspect of this determination
is the realization that its truth is the truth of hundreds
o f years o f uninterrupted racial discrimination, pro
viding limited opportunity for the racially excluded
victims to demonstrate an equal ability to perform.
1 lofcssional schools have traditionally relied upon
a system of admissions, which virtually excludes
Blacks and other racial minorities, although many of
those excluded could, i f admitted, successfully rna-
* this is a well-settled point of fact which can be documented
with varied approaches. The dc jure exclusion of blacks and other
racial minorities from all aspects of professional life in this coim-
Iry, par tie ul ai ly in the legal profession, is legendary, hi fact it
was not until as recently as the last twenty years or so, that blacks
could become members of the A ll A, which now sponsors the CLHO
program.
But perhaps the most graphic demonstration of the historic ex
clusion of blacks and other racial minorities from majority-eon-
trolled professional schools and subsequently the professions, them
selves, can be seen through the judicial evolution of the rights of
blacks in gaining access to professional school cducaton; see gen
erally, Missouri cx rcl Gaines v. Canada, 305 U.S. 337 (1938) ■
Spipucl v. Board of Regents, 332 U.S. G31 (.1948): Swcatt v ’
Bander, 339 U.S. 629 (1950).
7
8
triculate. Just prior to World W ar II, for example,
of the five thousand (5,000) students who graduated
from medical school in 1940, only one hundred forty-
five (145) were 33lack; President’s Committee on Civil
Eights, To S e c u r e These R igh ts , 67 (1967). One hun
dred thirty (130) of them graduated from schools ad
mitting only Black applicants. The similarity between
these statistics on racial exclusion and those of today
is startling: while 3% of graduating physicians were
Black in 1940, only 2.1% of practicing physicians were
Black as recently as 1970; Occupational Characteris
tics, 1970 PC (2 )-74 ; U.S. Department of Commerce;
Bureau of the Census, U.S. Government Printing O f
fice, Washington, D.S. © 593. The relationship be
tween Blacks and the medical profession is paralleled
throughout the professions. Tabulated data summar
ized from the 1970 Census reveals the number of
Blacks in professional occupations.
T a b l e I
Number of Blacks in Professional Occupations
Summary Table from 1970 Census:
Professional Occupation
Number of
Blacks
Percentage of
Total Sample
Religious Workers 12,951 5.7
Physicians & Surgeons 9,614 1.9
Dentists 1,983 2.3
Accountants 9,177 1.7
Chemists 3,332 3.4
Pharmacists 1,917 2.0
Engineers 13,375 1.1
1.3Lawyers & Judges 3,236
9
Also today, o f some 380,000 bar members, approxi
mately 7,500 are Black, representing 1.7% of the pro
fession.6
Exploration of the question of professional partici
pation by Blacks and other minorities, however, is
basically one of examining current admission criteria.
To enter either medical school or law school an appli
cant must confront a standardized test which the au
thors contend is not an IQ test, and yet, no specific
course of study taken just prior to the examination
results in the achievement of a higher score; Associa
tion of American Law Schools, the Law School Ad
mission Council and the Educational Testing Service,
Pre-Law Handbook (1976). It is alleged that the pur
pose of the test is to rate on a continuum basis pro
fessional school potential, and to select from the top
o f this list assures professional education for the “ best
and the brightest.” Although the tests themselves are
exclusionary, only attempt to measure risk, and can
neither predict performance in school or within the
profession itself with any degree of certainty, the tra
ditional selection process endures. Standardized test
ing, as an admission criteria, is recognized as the
single, most responsible factor for the exclusion of
Blacks and other minorities from the professions.®
0 These figures are derived from a mathematical extension of
statistical data provided by James E. Caldwell of the American
Bar Association, on behalf of the Council on Legal Education Op
portunity before the Senate Subcommittee on Labor/DIIEW A f
fairs; Second Supplemental Appropriation, FY 197G ll.R 13172
p. 527. _ ■ ' '
Although the notion is common in admission circles docu
mentation can be derived only inferentially. The Pre-Law’ Hand
book, for example (cited above) provides a “ grid” indicating law
school admission test score and overall undergraduate grade point
10
In general, law schools have adhered to traditional
admission policies and standards; applicants have been
reviewed solely on the basis of undergraduate grade
point averages and LSAT scores. Law Schools have
clung to a belief that only the “ best and brightest”
should be admitted. This admissions policy, as carried
out since the universal adoption of the LSAT criteria
in J 960, consequently, means that the educationally and
economically disadvantaged student’s access to law
school hinges upon performance on an exam which,
experience has shown, will not be forthcoming. In fact,
it has been argued that the LSAT is better at P1C_
dieting” race than performance in law school.7
However, in the past few years, law schools have
attempted to recruit larger number of economically
and educationally disadvantaged students. Most law
schools, however, view their efforts as contrary to the
maintenance of traditional admissions standards, in
an effort to maintain traditional standards, the corn-
average of those either accepted or entering law schools aiul
m o* . caveat is entered stating tlutt the data exclude.
applicants because either the data is deemed irrcJavant or, mow
urohably the lower LSAT scores of minority candidates "oulU
from the image the school wishes to project Were t c=
of minority candidates higher, they would probably be lc
-with little fanfare. See generally, Law School Admission
Annual Council Report, June, 1973.
' In his report to members of the Law School Admission Council
on March 16 1973, W. Garrett Flickmger, Chairman fost Dcvel
„ ‘ ,n',“ and VtaMKk Committee noted, -T J » fa * that tne P « -
diutors differentiate more sharply between black ' 1
dents than do first-year average law school grades is attiibuUblc
at least in part, to self-selection by black and white students to
tlic way 'in which various predictors were used by the law school
in selecting these students, and probably to recruiting cfioi.s
some instances.” Law School Admission Council, Annual Report,
Annual Council Meeting, June 5-7, 1973 @ 536.
f )
mon approach has been to rigorously select a small
handful o f disadvantaged students whose formal cre
dentials most nearly approximate those of the regular
class, and admit that relatively small number to the
school.*
As law school competition increases, more and more
qualified applicants are being rejected who would have
been admitted if the total number of applicants had
been fewer. As a result o f this increase in applicants,
there lias also been an “ increase in the admission
qualifications of those who are successful;” American
Bar Association, l i e p o r t o f th e Task F o r c e on P r o f e s
s ional Utilization (Chicago: American Bar Assoc.,
3973) G) 35. An example of this is cited by the Warkov
Study which was published in 39G3. This study indi
cated “ that in 1961, only eight of the then 134 ABA-
approved law schools had an entering class whose
median LSAT score was 600 or above.” It is now
estimated that, of the fall 3972 entering class, “ more
than 300, or over two-thirds of the now approved law
schools, would fall into this category.” Id. Q> 15.
Much is made of the Predicted First Year Average
(P F Y A ) which attempts to equate combinations of
undergraduate grade point averages and LSAT scores
with the probability that the achieved numerical scores
can predict an applicant’s ability to successfully nego
tiated lav/ school. Dean Frederick M. Hart o f the Uni-
11
8 Attention is again directed to the method of reporting profiles
of entering classes or of acceptable candidates in the Pre-Law Hand
book, previously cited. In most instances, the proper credentials
of racial minorities is excluded. If included, because of image con
cerns, in all probability, it is because the credentials of admitted
racial minorities most nearly approximates the regularly admitted
class.
\
versity o f New ]\Iexico was quoted by tbc Tusk Force
on Professional Utilization; American Bar Associa
tion, report, (a) 16:
“ W e are now in tlie situation of rejecting
residents o f tlie State o f New Mexico who, sta
tistically, have an S4% chance o f successfully
completing their first year . . . ”
Doubtless, many o f those rejected, yet showing such
promise, are today’s representatives o f racial minority
groups confronting the closed door. Even the tradi
tional methods o f selection for law school admission
predict success on the part o f many excluded by the
process 1
But the argument that many o f those minorities ex
cluded could successfully matriculate does not rest up
on an unproven prediction. Because programs similar
to the one at the University o f California at Davis,
here challenged, did come into existence, and because
alternate admission criteria were developed which took
into account many other factors, including race, data
exists to show that many rebuked by traditional ad
mission criteria entered professional schools through
special minority admission programs and successfully
matriculated in competition with other admitted on
the basis o f high standardized test scores, in accord
ance with tradition. Empirically, it has been estab
lished to the satisfaction o f most that the universal
application o f selection criteria utilizing such devices
as the P P Y A operate to exclude qualified Blacks,
other minorities, and disadvantaged groups. Bappa-
‘ port Michael D., The Legal Education Opportunity
Program at U C L A : Eight Years of E xperience; The
12
13
Black Law Journal, Volume IV , No. 3, W illiam S.
Hein and Co., Inc., Buffalo, New York.
The CLEO program was developed as a solution to
the dilemma o f increasing numbers o f qualified law
school applicants screened by a law school selection
process which virtually excludes the enrollment o f
Blacks, other racial minorities, and those from dis
advantaged backgrounds. C L E O ’s purpose is to ex
pand and enhance the opportunities for law study and
practice by members o f economically and educationally
disadvantaged groups and thus help remedy the pres
ent imbalance in the legal profession. The present
CLEO program has two central components o f direct
service to students in addition to its services to the
law schools. The two primary student components are
summer institutes for prospective law students and an
nual fellowships o f $1,000.00 each to those successful
graduates o f the summer institutes attending law
schools.
As indicated, attempts by law schools to increase
minority enrollment disclosed that the L S A T was
standing as an obstacle to these endeavors and the legal
education community sought an alternative admissions
device. The CLEO summer institutes were conceived
to perform this service. CLEO deemed it feasible to
revitalize the concept o f performance as a means o f
determining legal aptitude, at least with regard to
minority applicants.
The summer institutes offered mini-courses in sub
stantive law along with legal research and writing.
Initially, they were largely experimental and varied
in program format. Some were primarily remedial,
some attempted only to identify students who showed
the greatest promise o f succeeding in law school, and
I
others aimed at orienting students to the study of law.
Currently, greater emphasis is placed on orienting stu
dents to law school methodology and on law aptitude
and potential of the student, while remedial aspects
are minimized. The following tabulated data accumu
lated by the CLEO National Office demonstrates rather
vividly that the possibility of successful matriculation
on the part of minority students with lower traditional
credentials can be established quite well.
T able I I
C l e o P a r t i c i p a n t D a t a
1. Number o f students participating in CLEO since
its inception.
;i%8 1969 1970 1971 1972 1973 1974 1975 P976 Totals
161 448 212 221 217 233 225 251 220 2,188
2. Number o f students successfully completing sum
mer institutes.
1968 1969 1970 1971 1972 1973 1974 1975 1976 Totals
151 444 197 210 213 229 225 244 216 2,129
3. Number of students completing summer institute
and entering law school.
19G8_ 1969 1970 1971 1972 1973 1974 1975 1970 Totals
131 400 191 207 210 218 219 234 203 2,013
4. Number of students who have graduated from law
school.
1968 1969 1970 1971 1972 1973 1974 1975 1976 Totals
14
84 292 131 136 137 149 NA NA NA 929
15
5. Number of students who passed the bar and were
admitted to practice.
_1968_ 1969 1970 1971 1972 ]073 E)74 J975 1976 Totals
68 159 75 31 19 NA NA NA NA 352*
information concerning the bar is grossly vmlcrsialed.
1 he information is not generally known by the law schools and can
only be determined with accuracy if it is known in which of the
tifty (50) jurisdictions an individual sat for a bar exam. Where
we know the state in which a CLEO student w'as certified to take
a bar exam, we have checked him off a list of successful bar candi
dates received from each state.
6. Number of students who have withdrawn from or
failed in law school.
190S 1909 1970 1971 1972 197,°. 1971 1975 Totals
Academic dismissal 20 52
W ithdrew-good standing I 7
Withdrew-failing 8 18
Witlidrcw-military duty 5 6
AVitlidrcw-illness 1 4
Withdrew-financial problems 2
Wi thd re\v*unk uown reasons 11 18
40 107
42 49 34 29 32 21 279
10 10 7 O 3 4 44
7 5 1 3 3 45
1 1 13
1 ‘d 1 10
1 Oti 2 2 9
1 4 20 24 12 13 109
00 70 70 01 54 41 009
Virtually all of CLEO’s participants were not ad
missible to law school under the traditional admission
criteria; the average LSAT score of the CLEO par
ticipant m recent years has been around -ICO while
selection data provided by law schools indicate signifi
cantly high scores are needed. Clearly, the utilization
o f traditional admission criteria excludes many who,
if gi\en the opportunity, could and would successfully
enter the legal profession.
. ........— ..D-oL-accreuiiea law
schools have recognized this fact and created special
admission programs which participated in the CLEO
program. But it is not here suggested that CLEO is
t.ic only way; overall attrition rates reflect parallels
1 6
supporting similar conclusions. Dean Richard Ilubcr,
Chairman o f the Council on Legal Education Oppor
tunity, while testifying before the Senate Committee
on Appropriations, F Y 1976 II.R . 13172, <a> 459, intro
duced tabulated data on minority admission to law
schools, in general, and made the following candid
observation:
[The tabulated data] shows the pattern o f mi
nority student enrollment which . . . has slowed
even more than that o f all other students. One in
teresting feature o f this table is that by compar
ing the “ first year” figures o f one academic, year
with the “ second year” figures o f the succeeding
year, a feel for the attrition rate among minority
students can be obtained. This rate is about equal
to that of all other students. For example, the lirst
year class o f 1974-75 lost 399 Clack students out
o f its original complement o f 1,910, an attrition
rate o f 21% ; the overall attrition rate fo r non-
minority students is not calculable from these
tables but it normally runs approximately 20%.
O f those 1,910 Black students, no more than one hun
dred (100) could have been CLEO students. There can
be little doubt o f the minority candidate’s ability to
matriculate in law school. And, the same can be said
for other professions.
To maintain universal application o f a system o f ad
missions which excludes minorities simply because it is
cost-efficient cannot be consistent with the nation’s goal
o f racial integration. Much is made o f the issue o f
“ qualifications” when racial discrimination is alleged.
Concern is often expressed, in the face o f such charges,
that the exclusion o f a group is primarily the “ fau lt”
o f the excluded group in that it has prepared inade-
17
q(lately and is, therefore, “ unqualified” to participate
in the activity under scrutiny. Here, while questioning
the constitutional validity o f special minority admis
sion piogiam s in education, in general, and profes
sional schools, specifically, minority candidates havo
again been the victims o f a maligning press which
seemingly insists upon giving credence to the “ B ig
Lie o f unqualified candidacies. But, the performance
lcco id established by Blacks and other racial m inori
ties ought to put to rest notions o f any “ unqualified”
status pertaining to minority participants benefiting
trom the challenged special admit programs.
B. Tesiing or Measuring Devices Employed as Pari of tho System
of Admissions May Not Ba Utilised as Universally Controlling
Criteria When It Is Certain That To Do So Effectively Bara
Racial Minorities
Testing or measuring to establish qualifications, usu
ally associated with employment, can be challenged
when the outcome o f such testing or measuring results
m the exclusion o f Blacks or other racial minorities
from the employment activity, Griggs v. Duke Pow er
t L tyU C°-> 401 424 0971) ; McDonnell Douglas
Carp, v Green, 411 U.S. 792 (1973) ; Albemarle Paper
Co. V Moody, 422 U.S. 405. Under Title V I I 0f the
Civil Rights Act, protection is provided to private cm-
p oyees and Griggs, supra, in some instances, has been
deemed inappropriate in cases involving official acts
conduct, or laws, Washington, Mayor of Washington.!
D.C v. Davis, 426 U.S. 229 (1976) but not in others,
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) • Vul-
can Society v. Civil Service Commission, 490 F.2d 3S7
(mid Cir 1973). Situations covered by F ifth and
rom teem h Amendment Constitutional analysis, not
invoking the “ disproportionate impact” analysis, re
IS
quire plaintiff to show discriminatory “ intent.” W ash
ington, supra.
W hile there is little doubt that the Constitution is
the appropriate body o f law to determine the validity
o f classifications involving official activity, there is
considerable basis for determining that the dispropor
tionate impact analysis did not have its genesis in
Griggs, supra, hut more so, in the landmark decision
o f Yiclc W o v. Hopkins, 118 U.S. 350 (18S6). F or the
issue is not one o f labels hut, more so, one o f determin
ing the proof required to establish a prima facie case.
Mr. Justice Stevens, in his concurring opinion in
Washington © 253, sets out the flexibility o f the
claim :
“ Although it may be proper to use the same lan
guage to describe the constitutional claim in each
o f these different contexts, the burden o f proving
a prima facie case may well involve differing evi
dentiary considerations. The extent o f deference
that one pays to the trial court’s determination o f
the factual issue, and indeed, the extent to which
one characterizes the intent issue as a question of
fact or a question o f law, will vary in different
contexts.”
Under certain circumstances, the constitutional Pr0'
tcction may replicate the protection afforded by Con
gress under Title V II . This conclusion is strengthened
bv a comparison o f Slraiuler v. W est Virginia, 100
U.S. 303 (1879) with Yiclc W o, supra, on the issue of
constitutional equal protection standards. For, in de
ciding Straucier, supra, the court struck down a state
statute barring Blacks from jury service while being
careful to point out that although the statute was held
to he unconstitutional, (because it focused specifically
19
upon an invidious racial classification) the Fourteenth
Amendment did not prohibit the imposition o f jury
qualifications such as freeholder status or education
which would obviously exclude a disproportionate
number o f Blacks. But, in Yiclc W o, supra, the Court
apparently spawned the “ disproportionate im pact”
analysis under the aegis o f Fourteenth Amendment
equal protection when the court found in favor o f a
number o f Chinese laundry operators challenging a
licensing procedure which had worked to prevent only
members o f the Chinese race from securing laundry
licenses, although there were others engaged in the
laundry business.
The 1 ich W o Court accepted the argument o f racial
discrimination in the administration o f law neutral on
its face but with a disproportionate impact upon the
targeted populace. And so, the concept o f recognizing
a deviation from the consequences o f pure happen
stance, affecting an identifiable racial group, as being
presumptively caused by racial discrimination, partic
ularly, when it fits a previously established pattern
known to be the by-product o f racial discrimination, is
not a new concept. However, it probably was reiterated
in Griggs v. Duke Pow er & Light Co., 420 F.2d 1225
© 1247 (4th Cir. 1974), when Judge Sobeloff, dissent
ing in the Fourth Circuit recited: “ Congress did not
intend to force an entire generation o f Negro em
ployees into discriminatory patterns that existed be
fore the A ct.” Subsequently, this Court unanimously
endorsed the thrust o f the Fourth Circuit dissent,
Griggs, supra.
The Reconstruction Amendments (Thirteenth, Four
teenth, and Fifteenth Amendments to the U.S. Consti-
20
tntion), seen as a whole, require the inescapable con
clusion that a constitutional mandate exists to eradi
cate the badges and indicia o f slavery. Civil Rights
Cases, 109 U.S. 3 <a) 20 (1883). One such “ badge or
indicia” developing with the termination of slavery
was the imposition of the stamp of inferiority on ra
cial groups; its impact upon the social and economic
mobility o f tint victims has been devastating, primarily
because identiliably crucial institutions, inherent in
American society, have created a dual system—one
superior and one inferior—perpetuating the myth of
racial inferiority, Understandably, when the conduct
of officials administrating within such institutions is
placed under constitutional scrutiny, the quantum and
nature of proof necessary to establish a prima facie
case will vary from that imposed upon less harmful
activity (See, generally, the majority opinion of Mr.
Justice Powell in McDonnell Douglas Corp., supra).
Constitutional scrutiny of official conduct within such
vital institutions will, and should often, follow the dis
proportionate impact standard imposed in a Title Y II
claim (See, generally, K eyes v. District # 1, Denver,
413 U.S. 189 (1973).’
Education—ridden with strife over the questions
arising out of historical racial discrimination—is just
such an institution which has prompted this court to
shift the burden to a defendant upon a showing by
plaintiff that the result of official activity, neutral on
its face, has been to perpetuate past patterns o f racial
discrimination. Even prior to Drown v. Board o f Edu
cation, 347 U.S. 483 (1954), where the separate but
equal doctrine o f Plessy v. Ferguson, 103 U.S. 557
(1896), was finally overruled, attempts were made to
alter the traditional patterns of racial discrimination
in higher education. In Siveatt v. Painter, 339 U.S. 629
(1950), the precourser to Brown, supra, the tone was
set for racial integration in professional schools when,
interestingly enough, standardized tests were not the
controlling criteria for law school entrance. Then,
Blacks and other racial minorities 'were excluded as a
matter o f law under the Plessy doctrihe. But the in
jury of racial discrimination, the discrimination upon
which the Plessy doctrine was formulated, compelled a
later court to reach the conclusion that ITemon Marion
Sweatt, as a qualified Black law school applicant, was
entitled to selection from the pool o f white applicants
to the “ white” law school of the University o f Texas
because the newly created “ black” law school was not
equal, and could not be equal, m the provision o f edu
cational opportunities. The court in Swcalt <u) 633-634
addressed the nature of the injury admirably:
“ In terms of the number of the fac-ultv, variety
of courses and opportunity for specialization, size
of the student body, scope of the library, avail
ability of law review and similar activities, the
University of Texas Law School is superior What
js more important, the University o f Texas Law
School possesses to a far greater degree those
qualities which are incapable o f objective meas-
mement but which make for greatness in a law
school. Such qualities, to name but a few, include
reputation of the faculty, experience o f the admin
istration, position and influence of the alumni
standing m the community, tradition and prestige!
It is difficult to believe that one who had a free
choice between these law schools would consider
the question close.
Moreover . . [t]he law school, the proving
? ™ “ d. t o r !eS;nl learning and practice, cannot bo
eirective m isolation from the individuals and in-
21
stitutions with which tlie law interacts . . . Tlie
law school to which Texas is willing to admit j)c;ti-
tioner excludes from its student body members of
the lacial groups which number 85% of tbe popu
lation o f the State and include most of the law
yers, witnesses, jurors, judges and other oflicials
with whom petitioner will inevitably be dealing
when he becomes a member o f tlie' Texas P a ”
A\ ith such a substantial and significant segment of
society excluded, we cannot conclude that the edu
cation offered petitioner is substantially equal to
that which be would receive if admitted to tbe
University o f Texas Law School.”
The provision o f a quality, substantive education for
those minorities long the victims of unchanging pat
terns of racial discrimination has been an elusive goal
even with the assistance o f Ibis court. Although
Brow^i, supra, squarely confronted tbe issue o f a self-
perpetuating dual society feeding from its segregated
educational institutions, the court has had limited suc
cess in fashioning a remedy destined to reach the basic
goals articulated by tlie Brown court.
Although this court has had little difficulty in strik
ing down the laws associated with segregated public
education, Brown v. Board o f Education, supra,
through Swann v. Charlotte-Mccklcnburg Board o f
Education, 402 U.S. 1 (1971), the pattern o f racial seg
regation has endured. In attempting to break this con
tinuing pattern o f racial discrimination in education,
absent any statutory mandate compelling racial segre
gation, this court has applied the Fourteenth Amend
ment s equal protection clause to deal affirmatively
with the patterns of de facto segregation even though
the official conduct engaged in appeared to be neutral
23
on its face, K eyes, supra. In so doing, the court once
again bridged the artificial gap between Title Y U
protection and fundamental constitutional equal pro
tection. The “ disproportionate” or “ differential” im
pact analysis, according to K eyes, supra, is appropri
ate when dealing with matters o f education even under
pure equal protection analyses.
In K eyes, supra, the northern pattern o f school seg
regation was confronted. The District Court found
hut the school authorities bad engaged in “ inten-
tionaP segregation o f schools based upon official con-
despite the lack o f a statutory mandate; this
(ou it approved, but m so doing, concern was expressed
over the talse dist inction being created between de jure
and dc facto segregation. Mr. Justice Powell, author
ot the niajority opinion, was prepared to accept a
al ffeiential ^impact model o f equal protection similar
o the G nyys disproportionate” impact analysis de-
m , th0; 1Cini,!oymont aroa- determination
that the school board m K eyes intended to discrimi-
o f f °VC51-S!>lcly ° n thC basis o f an evaluation
th eiffa co ^ ^ UC 1 apP°aV to ]iave b0GJ1 neutral on
p em ittin g evaiuati° n o f ob- ]0 (tne data, it for tbe purpose o f establishing subiec-
• C -Jn ahParently adopted bv the Cliief Jus-
& 1,18 ^ ™ - *
sZ lE E J ;1 „t......... ft within uni
..........i fo u e w i, the use o f significant
24
racial imbalance in schools within an autonomous
school district as a, s igna l wh i ch op e r a t e s s im p l y
to s h i f t th e bu rd en o f p r o o f , is a very different
matter from equating racial imbalance with a con
stitutional violation calling for a remedy.” (em
phasis supplied) 1
The exclusion of Blacks and other racial minorities
from professional schools is an affront to constitu
tional due process and equal protection, Swca t i , supra,
which, if present, certainly ought to require an expla
nation. And yet, if a plaintiff challenged the retention
of racially discriminatory patterns through the use of
“ racially neutral” standardized testing, excluding ra
cial minorities as a group, only an application o f the
“ differential” impact analysis to the constitutional
claim would shift the burden of proof to administrat
ing officials. Only then would they, as defendants, be
required to justify racial exclusion; otherwise, sum
mary judgment would be available to defendants.
Law school administrators, themselves, have argued
that use o f the P P Y A as. the controlling admission
device would cause the exclusionary result. Faculties
and administrators began the challenged special ad
mission programs because they shared the view that
there could be no justifiable explanation for racial ex
clusion and yet they wanted to preserve a system of
admissions which otherwise is reasonably efficient and
operates at minimal cost.
As a consequence of computerized processing of ap
plicant undergraduate records and standardized test
data, professional schools delegate, at little cost, a
great deal of admission analysis responsibility; indeed
it may be too Costly to do much else for applicants
icpj esenting the majority population. But cost consid
erations are inappropriate to deny constitutional pro
tection, Shap iro v. Thompson , 394 U.S. 618 (1969).
Therefore, if such cost benefits are to be preserved,
the additional cost of applicant screening, through spe
cial minority admission programs, such as those ques
tioned here, is both justified and required if the tradi
tional admissions process, presumably satisfactory for
majority select ion, is to be sa ved.
C. Special Admission Programs. Promoling Racial Inlegralion.
Arc Consliiulionally Mar.dalod When II Can Be Shown That
a Professional School Has Failed To Prcmo.e Racial Inclusion
n w- CJp° ra!lon of Its Admission System When a Pool of
Qualified Racial Minorities Exists
. Tlie (incstio11 ,,f "'bother the special minority admis
sion program of the medical school hereunder consti-
ut-onal scrutiny out to be viewed as “ voluntarv”
athoi than m compliance with a constitutional pro
scription against the exclusion o f qualified racial mi-
iionties, particularly from institutions of education is
< nsHoied m part by the duty imposed upon the offi-
c.a S of state supported educational insUtulious to
achieve a system of applicant selection that does not
exclude any particular racial group.
i w Z f h T l r r 1 SPf al ndm is°iou -programs, focusing
; pon 1,0 \lct” ns o f racially discriminatory patterns
to « C aSSf instltutlons ° f higher education will revert
to the pattern so clearly denounced in Sweat*, supra
oi he I rcdicted First Year Average (P F Y A ) will
icplace the racially segregating statute. The intrealed
en.and for professional school education has created
si o iM Pb°e ” 1CS, io r . f r y i n g the status quo which
should be viewed with skepticism. The claims of
Blacks and other racial minorities, admittedly not par
ties to this litigation, to participate in the educational
opportunities which provide access to the highest-pay
ing, white-collar jobs, ought not be less than those o f
Blacks and other racial minorities who seek blue-collar
job opportunities. And, it is that claim which constitu
tionally imposes the duty upon professional schools
supported by state funds to develop nonexclusionary
admission policies. The Fourteenth Amendment cer
tainly imposes upon professional school administrators
proscriptions against racial exclusion in the classroom
at least as great as those levied against public school
boards in the hiring and promotion o f school system
professional personnel such as in Chance v. Board of
Examiners, 458 F.2d 31G7 (2nd Cir. 1972).
There, a Board o f Examiners was “ designed to do
away with the abuses . . . arising from the appoint
ment or promotion o f teachers . . . on a basis o f favor
itism and o f political patronage, and to place the ap
pointment and promotion o f teachers on a competitive
basis o f merit,” Chance <a) 3170, n. 6. The District
Court held that the examinations prepared and admin
istered by the Board o f Examiners had the do facto
effect o f discriminating against Black and Puerto
Bican applicants and, therefore, placed the burden on
the Board to show the necessity for the exam to pro
vide qualified applicants. The Second Circuit affirmed
and in so doing set out what the use o f a test to estab
lish professional job qualifications ought to achieve:
“ One cannot read the documents submitted by
Plaintiffs without experiencing great doubt over
whether a lower score on the B oard ’s examination
necessarily meant poorer job qualifications or
without wondering whether the examinations
26
tested anything other than the ability to take a
certain rest.” Chance <a> ll'75.
It is hard to believe, in light o f this reasoning, that
standardized tests in conjunction with less-weighted
other factors, including undergraduate grade point
a. erages, projected onto a numerical continuum ought
to be permitted to control the selection process for
professional school classrooms to the exclusion o f
I)lacks and other minorities. When it is known that
cction by other means, utilizing race as a factor will
produce qualified participants in the educational proe-
oss from all races, not to do so is certainly in opposi
tion to both constitutional law and reason. The fact o f
virtually complete racial exclusion with no intent to
•SsT tV ' i M o :. l (llS;'rin,i,,ntio" ’ L,' vi}UJ v- v *9™ ia,
l -kS: 1 » ‘ <'d W the situation in pro-
institutions „ ot lmvhlg ..spwial „ d m jPion
L ns’ ° Uf? 11 not be grounds to deny a claim ; for,
io pi election afforded racial minorities” by the
© 1 1 7 5 : C,Kl‘ " C" t hns no Sllch limitation.
m7 l‘ 5 ]]ai'sh ,racial impact, even i f unintended
amounts to an invidious die facto classification that
cannot be ignored or answered with a r i i Z A t
io Aeiy least, the. Constitution requires that state
b?"ic4C ta ngstTJl ;i ,:1<T •<* A S Somitted) ‘ consideration.” ' (citations
e ^ s fin r e s n s ^ T Prognumin professional schools
u " I 1 s<! ns: constitutional requirement and
as a consequence” are in no sense the product o f ad
™ tu rou s volunteers justifying the finding
stituuonal reverse discrimination.
28
Allan Bakkc can make no claim similar to that o f
racial minorities. No duty exists on the part o f public
administrators to guarantee any individual applicant
a review for selection purposes “ equal” to that re
quired to prevent racial group exclusion.
II. TO AFFIRM THE DECISION OF THE CALIFORNIA SUPREME
COURT IS TO DISREGARD THE GUIDING HAND OF
CONGRESSIONAL LEADERSHIP IN ENFORCING THE
FOURTEENTH AMENDMENT
The California Supreme Court decision rendering
affirmative action programs, such as the one conducted
by the University o f California at Davis, unconstitu
tional reverse discrimination as a consequence o f using
race as a factor to be considered in the admissions
decision, focuses upon the equal protection clause of
the Fourteenth Amendment. The development o f such
programs in many institutions o f higher education has
caused legal scholars and laypersons alike to join in
the debate over whether the equal protection clause
should be read to permit any racial classifications
benefiting racial minorities in higher education where
state action is involved.
As the California Supremo Court noted in its ma
jority opinion:
“ The question before us has generated extra
ordinary interest in academia, as well as a pro
liferation o f debate among legal writers and com
mentators. (See, for a mere literary sampling,
Redish, Preferential Law Admissions (1974) 22
U C LA L. Rev. 343; DeFunis Symposium (1975)
75 Colum. L. Rev. 483; Sandalow, Racial P refer
ences: The Judicial Role (1975) 42 U. Chi. L. Rev.
653; Symposium, D eFunis: The Road Not Taken
29
v l9 ,4 ) 60 \a. L. Rev. 917; Ely, Reverse Racial,
^ r n n n m t w n (1974) 41 U. Chi. L. Rev. 723;
T T Cr’on re/prc,ltu!l Admissions (1971) SO Yale
j.J. hh9; Cragha, Special Admission to Law
f ' T T ' T 119 U- Va. I , ttev. 35 ], B i l le r
y- •;)> rtel'mit'! v m iis mid the
i c> Sit. IJ o f Washington (1974); Cohen, The J)c-
P unis Case: Race and the Constitution, The Na-
tion ( ta b 8, 1975) 135; O ’Neil, Viscrm innUuo
Af/amst Risenm inahon (1975)). No fewer than
am no curiae briefs were filed in the United
Stales Supreme Court in DeFunis. Indeed, Jus-
ic< Brennan, dissenting in DeFunis from the de-
niinafion o f mootness, remarked that “ TFlcw
constitutional questions in recent history have
• tilled as much debate . . (416 U.S. fa) 350).
One school ()f thought considers the oucstion o f af-
fim u tn e action m higher education to he one o f equal
y . . l ■! ! « , , U .ci.s, K m n m o t UhO . Y Y !
, a (1(,,nn('racy monitoring « legislative power-
and because policy questions become value judge
ments under the equal protection clause, a p p ro priR e
sensitivity to the values served by a democratic deci
sion-making society requires courts to defer to le -ish -
tornl’S i m ,U,1r t,ley Clearly constitutional tiaditions. See, generally, Terrance Sandalow
Lamal l references rn Higher Education: Political
Responsibility and the Judicial Role 42 U Chi T
Rev. 653 (.1975). ' U< 0ilJ- L -
30
whether Congress has offered its “ guiding hand,”
Katzcnbacli v. Morgan, 384 U.S. G41 (I960). W hile the
Fourteenth Amendment may have limited govern
mental powers to engage in racial discrimination as a
badge and indicia o f slavery, Civil Rights Cases,
supra, it created new causes o f action as well as reme
dies on behalf o f those protected. Case law in support
o f this point is legion. To cite only a few, see Brown
v. Board of Education, .supra; Louisiana v. United
States, 3S0 U.S. 320 (1970) ; Jones v. Mayer, 392 U.S.
109 (19G8) ; Sullivan v. Little Hunting Park, 39G U.S.
229; Tillman v. W heat-] faven Recreation Association,
412*U.S. 431 (1973). Sec also, K inoy; The- Constitu
tional Right to Negro Freedom, 21 Rutgers L. Rev.
387 (19G7).
Under the Fourteenth Amendment’s equal protec
tion clause, courts have articulated causes o f action to
fit developing patterns o f racial discrimination against
not only the originally targeted Blacks, but also, other
racial and ethnic minorities, including Chinese (T ick
W o v. Hopkins, supra) ; Puerto Ricans ( Chance v.
School District #1, su p ra ); Chicanes (K eyes v. School
District #1, Denver, su p ra ); and Asians (Lau v.
Nichols, 414 U.S. 5G3 (1974). It did so while, at the
same time, conceding the power o f Congress to impose
its guiding judgments through legislation, McCulloch
v. Mar gland, 17 U.S. 31G (1819) ; Katzcnhach v. M or
gan, 384 U.S. G41 (19GG) ; Katzcnhach v. McClung, 379
U.S. 294 (19G4); Heart o f Atlanta Motel, Inc. v.
United States, 379 U.S. 241 (1.9G4) ; United Jewish
Organizations o f Williamsburg, Inc. v. Carey, 45 U.S.
L .W . 4221 (March 1, 1977).
Specifically, this court has ruled that “ §5 [o f the
Fourteenth Amendment] is a positive grant o f legisla-
31
live power authorizing Congress to exercise its discre
tion in determining whether and what legislation is
needed to secure the guarantees o f the Fourteenth
Amendment;” Katzcnhach Ch G51.
In keeping pace with its Fourteenth Amendment
equal protection responsibilities, Congress passed the
Civil Bights Act o f 19G4 which expressed the need for
ailirmative action and not only fii instances where a
finding of past discrimination had reduced participa
tion by protected groups in program activities receiv
ing federal funds; hut, also in the absence o f a direct
finding o f prior discrimination, when needed to over-
e< me the (‘ fleets o f conditions which resulted in limit
ing participation by persons o f a particular race, color,
or national origin. 1 illc In ( ode1 of Federal Regulation,
Bee. 80.3 (b )(G ). Sec also, Gernnan v. K ipp, 45 L.W .
248 (W .D . Mo. April 7. 1971). The Voting Rights Act
o f 19G5, 79 Stat. 439, 42 U.S.C. § 1973 cl. al. is but
another example.
Congress has explored the social utility o f racial in
tegration and established a public policy in favor o f
such. See, generally, Title V I o f the Civil Rights Act
c f 19G4 (Pub.^ Law 88-352: 88th Congress, “duly 2,
19G4); Title I X o f the Education Amendments o f 1972
( I ’ ul). Law 92-318; 92nd Congress, June 23, 1972) ; 45
C.F.R., Sec. 80.3 (b ) (G) ; and the Voting Rights Act o f
19G5.
_ Consistent with that public policy and its responsi
bilities under the equal protection clause, the CLEO
program enjoys the blessing o f Congress.
Although the creation o f the private sector, the
CLEO program is presently funded by the Depart-
)
32
mcnt o f Health, Education and W elfare through legis
lation enacted in June, 1972. Congress enacted the
Educational Amendments o f 1972 (Pub. Law 92-318;
92nd Congress, June 23, 1972). The significant, pro
visions o f that legislation, from CLECPs vantage point,
were included in Title IX , Part D, Sections 9C1 (a)
(a ) ct. seq. Section 961 established the purpose o f the
legislation as being, “ for persons o f ability from
disadvantaged backgrounds as determined by the
Commissioner, undertaking graduate or professional
study. ’ ’
This legislation imposed a one million dollar ($1,-
000,000.00) ceiling on fellowship awards, Sec. 9G1 (b )
(d ) and authorized P H E W to provide living allow
ances and mandated minimum stipends in the amount
o f $2,800 a year, Sec. 963 (a ). Additionally, it antici-
universities in the amount o f 150%
port awards, Sec. 963 (b ).
o f the student sup-
The impact o f such legislation would have been to
severely limit CIjE O ’s significance; presently, the pro
gram has been instrumental in gaining admission to
law school for some two hundred (200) would-be at
torneys annually. The 1972 legislation would have re
duced its significance because o f the one million dollar
ceiling in conjunction with the student stipend size of
$2,800 along with cost-of-cducation allowances to law
schools. Instead o f 200 participants annually, the pro
gram size under this legislation would have been some
forty (40) institute participants. To preserve the
CLEO program in its original form, the 1972 legisla
tion was amended once again.
On July 22, 1974, Title I X , P art D o f the Higher
Education Act o f 1965 was amended as follow s: Sec-
ti"u 836 «.f Hie ammidment entitled “ Assistance for
Training in tin* Legal IToi'esshm,” set out the criteria
o f eligibility for those individuals who may become
recipients o f the legislated stipends, Sec. 966 (b ) ( I ) ;
provides for counseling. Sec. 966 ( b) (3 ) ; permits pre
liminary training fm- the legal profession, Sec. 966 (b )
(4 ) ; allows stipends, Sec. 966 (b ) (5 ). In addition
Sections 962 and 963 o f Title IX , allocating minimum
student stipends (,f $2,800 wore rendered ineffective
but the one million dollar ceiling was retained. This
amendment to accommodate CLLO stands as an im
plicit congressional endorsement.
I nder tins legislation, CLEO has a legislative life
W'U' li guarantees existence until June 30, 1978. That
lile has now been extended to October J, 1979 The
“ million'’ dollars in grant funds has been dispersed
annually as follows: The Division o f Special Services
m the Ofiice o f Education covers part of the summer
^ thC amou,lt ° f two h'mdred thousanddo lars ($-00 000.00) from discretionary funds avail-
re ° S' th° Commissioner, while the seven hundred
fifty thousand dollars ($750,000.00) used to sustain the
National Office, ($210,000.00) and provide student
stipends for those successfully completing the summer
($540 000 00 10 Ulhmatclr limtrjculate in law school,
r } 13 aPr P m tcd ami’ ,aliy- A m l ™ * ^on-si qiumce, Congress has an annual opportunity of pro
gram review. J 1 u
For example, on June 27, 1975 the Congressional
u to/d disclosed a published account of tluf Senate’s
^dueation Appropriations Bill for 1976. It revealed
)
Although President Ford vetoed this appropriation
bill, Congress overrode the veto and the appropriation
bd] was enacted into law. The ultimate success of con
gressional effort, of course, precluded any attempt to
backdoor CLEO’s way into the appropriation bill
tluough an amendment.
However, subsequent discussions were held with
D l lE jV p c m m id regarding the possibility o f includ
ing CLEO m the request for a D1TEW supplemental
appropriation bill (which was to be forwarded to Con-
gress m eimly Noveinber, 1975). CLEO learned, bow-
ever, that D liE W would not request additional funds
on behalf o f the program because o f an administrative
moratorium on any additional DTIEW program fund
ing This change o f events necessitated a serious re-
evaluation o f the strategy necessary to secure funding
which had relied heavily upon D lI E W ’s commitment
to the program.
ihe proposed strategy change required a more ac
tive degree of participation from CLEO’s sponsoring
organizations, particularly the American Bar Associa”
tmn, Association of American Law Schools, and the
' national Bar Association. This participation involved
wluwiting members of both House and Senate Labor-
1)11 bA\ Appropriations Subcommittees as to the pro
gram’s validity.
Contact was made with Senator Richard Sclnveiker
a member of the Labor-DIIEW Appropriations Sub
committee, to secure his assistance in sponsoring an
amendment for full funding on behalf of CLEO before
Ins subcommittee. This he agreed to do; however, in
the actual proceeding to carry out this task, the amend
ment was defeated in Subcommittee by a vote of 4 to 3.
W ith this defeat in the Senate, C LE O ’s sponsors
directed their efforts almost exclusively to securing
C LE O ’s inclusion in the second supplemental appro
priations bill in the House in March, 1976.
Intensive lobbying efforts secured the assistance o f
flic Congressional Black Caucus, particularly Cou-
gresspersons Yvonne Burke and Louis Stokes. Con
gressman Stokes sponsored an amendment for funding
in the House L abor-Ill!E W Appropriations Subcom
mittee which was ultimately approved by the entire
House on April 33, 1976 as II.R . 13172.
In order to determine the viability o f the CLEO
program as a congressional endeavor, Senator Brooke
scheduled hearings before the Senate Labor-D IIE W
Subcommittee on A pril 6, 1976. Those testifying on be
half o f CLEO before the Subcommittee included
Council Chairman, Dean Richard H uber; Executive
Director o f the National Bar Association, Elihu M.
H arris; President-Elect o f the Law School Admission
Council, Professor W illiam lia ll ; American Bar A s
sociation representative, James E. Caldwell; La Raza
National Lawyers’ Association’s representative, A l
fonso Gonzales (who submitted a written statement
for the record, but did not testify) ; two CLEO partici
pants at the Georgetown Law Center, Messrs. R egi
nald Turner and Richard Jones; and CLEO Executive
Director, A lfred A. Slocum.
Those hearings demonstrated to the satisfaction o f
Congress the effectiveness o f the CLEO program.
Testimony was adduced, Senate Subcommittee on
L abor/D IIE W A ffairs; Second. Supplemental A ppro
priation, F Y 1976, supra <a) 457, which defined C L E O ’s
target population:
J
36
. . . Frequently, the CLEO participant is one
who, by reason o f cyclical poverty and consequent
educational deficiency, may have experienced ini
tial difficulty in adjusting academically to the
college environment. .11 is or her cumulative grade
Point average, however, may reflect an upward
trend characterized by marked improvement dur
ing the third and fourth years. A large number o f
CLEG students have also, because o f their dis
advantage^ background, attended undergraduate
colleges that are Jess demanding academically than
the more prestigious institutions that furnish can
didates for law school. When these factors are
produced by membership in an isolated group,
whether minority mr white in ethnic terms, the
student fits the concept o f disadvantaged.
In response to its own thought processes and the
needs o f society, CLEO has broadened its concerns
to encompass disadvantaged white students. Yet it
comes as no surprise that the ratio o f minority
students in the CLEO program remains over
whelmingly high. One readily identifiable target
population o f disadvantaged white students from
which CLEO draws can be found in Appalachia.
The argument is often heard that no person
with a baccalaureate degree can he considered
disadvantaged, since he or she has an advantage
over a large portion o f the population. W hat
should be remembered, however, is that this same
person can be disadvantaged with respect to other
college graduates attempting to enter the legal
profession. W ithout some affirmative response to
the underrepresentation o f these groups in the
legal profession, the patterns that have in the past
kept these groups seriously underrepresented in
< the socially and economically powerful institu
tions o f society and prevented their ready access
to the mechanisms for peaceful dispute resolution
. through the legal system will continue as part o f
37
the cyclical poverty to which this program is ad
dressed.”
The continuing concerns which prompted this edu
cational effort on behalf o f C L E O ’s target population
were also reestablished for the benefit of the Senate
Subcommittee, Second Supplemental, supra <a) 1G2, in
the following terms:
“ . . . The concerns o f 19GS were rather concrete
and immediate. In 197G we arc faced perhaps with
less violence but many of the problem areas that
generated the violence o f the GO’s and early 70 s
are still with us. And the numbers by which wo
measure our progress within the legal profession
are improving only slightly. Although it is impos
sible to take an accurate count o f the racial com po
sition o f the American bar, we are confident that
well under 3% o f the lawyers in the United States
today are members o f ethnic minorities; almost
certainly no more than 1.5% are B lack; about
0.3% are Ohicano; about 0.2% are Asian-Ameri
can. W e have no means o f estimating how many
non-minority lawyers come from backgrounds o f
cyclical poverty, but we do know that this small
number will dwindle as the costs o f obtaining both
undergraduate and legal education continue to
spiral upwards toward levels that only the most
affluent can afford, unless substantial aid is avail
able.
The media have been portraying law graduates
recently ns having great difficulties in locating
suitable employment, but it appears that law
school enrollments are reflecting a relatively rapid
adjustment to the forces o f supply and demand.
The most recent statistics (See Table I ) show that
law school enrollment has leveled off after a dec
ade o f dramatic increase. The prevailing approach
o f legal education has been to attempt making
j
38
legal education available to all who were qualified
and desired to enter the profession, leaving mar
ket forces to operate freely. This approach is de
signed explicitly to avoid" closing or restricting
access to the profession, but in a time of economic
leu action it runs the danger of reducing access
possibilities not on the basis of reasonable proba
bility of academic success but on financial grounds.
The continuing need for CLEO is illustrated by
the unfoitunate fact that the level o f minority
enrollments may be tapering off even more rapidly
tluin other students. Overall enrollment increased
by 5.6% m 1975, while minority enrollment in
creased by only 4.12% in 1975 compared to a 10%
increase in 1974. The number o f minority students
enrolling in the first year o f law school has held
virtually stead}7' for the last two years, rising by
only 1.1% since 1974. These figures, as well as our
own experience, indicate that the demand for mi
nority lawyers will continue to rise beyond the
availability. Affirmative action programs through
out the country indicate that very few employers
arc in a position o f under-utilization o f minority
lawyers when the availability pool is defined as
Present law graduates, but i f the availability pool
is defined as all persons in the target ethnic
groups, then under-utilization is extensive. This
disparity reflects the lack o f minority lawyers that
still persists to the present day and which will
continue to place minority lawyers in relatively
high demand.”
Finally, during the Senate Hearings, Second Supple
mented, supra fa) 530, Senator Brooke asked the ulti
mate question:
“ Do you feel that even though CLEO students
need some advance tutoring they still do well both
. academically and later in the outside world?”
f " )
39
The response given to the Senator probably is the
best indication o f why link he ought to be reversed,
Second Supplemental, supra <a) 530:
“ This is a difficult question to answer because
the concept o f ‘ doing w ell’ is both relative and
subjective; the whole issue o f psychometrics comes
into play: Js law school and the bar exam directly
related to the actual role played by an attorney?
However, some concrete data is available . . . bar
results arc also included.”
For bar result data see Table II , supra.
“ Beyond law school and the bar, a survey was
made o f the first two graduating classes. The at
tached Report on Survey o f 1971, 1972 CLEO
Graduates states: . . . ”
Report on Survey
o f 1971, 1972 CLEO Graduates
Introduction
The statistical information contained on the
following pages was obtained by mailing the
questionnaire in Exhibit “ A ” (attached), to
members o f the 1968 and 1969 CLEO classes
who graduated from law school in the years
1971 and 1972 respectively. The 1.971 gradu
ating class was surveyed in August o f 1971
while the 1972 graduating class was surveyed
in July o f 1972. In addition, the responses
were supplemented by a later mailing o f post
cards which sought similar though not as com
prehensive information on the graduates. This
explains the apparent discrepancy in the
number o f responses to different items on the
form.
A word should be added here about the type
o f questions contained in the form The re
spondent was asked to indicafe v _Jther he
was currently employed, how he obtained his
40
job, 'where the job was located, what type o f
work ho was engaged in, how much lie was
earning, and where he intended to take the
bar.^ It was hoped that this occupational
profile would reveal underlying attitudes o f
minority law students toward the OLEO ex
perience and toward the legal community.
1 vastly, although the form contained a ques
tion regarding bar performance, few re
spondents had received any results at the
time o f the survey.
The responses o f the graduates were care
fully compiled and the results examined. Be-
low, in narrative form is a breakdown o f those
results. Statistical data will be found on E x
hibit “ 13” o f this report.
1971 C l a s s
Thirty-six (43% ) o f the 83 students ex
pected to graduate from their 19G8 entering
class responded to the questionnaire. Their
responses are as follow s:
Number employed— Seven o f the 36 were
unemployed. O f the seven, 3 were looking for
work, one student had delayed graduation,
and 3 were going for additional degrees in
business administration, law and urban plan
ning.
Type o f employment— O f the 29 students
who did indicate employment, 3 were engaged
i?i private practice, four others were em
ployed by state and municipal governments in
the offices o f the attorney general or district-
attorney while an eighth was a judicial clerk
in the county superior court.
The m ajority o f the 29 students who were
employed were engaged in the field o f public
r
41
service law. F or example, 22 students re
sponded that they worked with disadvantaged
groups— the Black, the Cliicano, the Indian.
Three (3 ) o f the graduates employed in flic
area o f public service were working in “ lion-
legal” capacities; as a legal instructor in a
small Black college which was struggling for
survival, as an associate director o f a college
upward bound program, and as a planner for
a city demonstration agency.
One third (7 ) o f those employed in public
welfare legal organizations were associated
with the Reginald Tlebcr Smith Fellowship
Program , five (5 ) were working in legal aid
clinics, and two (2 ) were employed by the
NA.AGP Legal Defense and Education Fund
(one o f these two graduates as being assisted
in setting up bis own law practice, fbe other
was doing research and preparing briefs and
pleadings in largely southern class actions re
lated to civil rights). Three o f tbe four em
ployed bv the federal government also bad
jobs which related to the needs o f those under-
represented in our society. One graduate was
a civil rights officer with a federal highway
administration; another was a clerk with the
E.E.O.O. and the third was awaiting appoint
ment as Assistant Regional Director o f the
Atlanta ITEW Office o f General Counsel.
Salary— Salary-wise, more than half (10)
o f the employed CLEO graduates wrere earn
ing between $1.0,000 and $.12,000 per year. Six
others were earning less and eight were earn
ing more.
A 9
1972 Class
O f the 287 graduates who were sent ques
tionnaires 179 (63% ) responded either in
whole or in part. Most (144) o f the respond
ents (about 80% ) indicated that they were
. employed. J he remainder were not yet work
ing though this was not attributable to any
single factor. O f those who had obtained a
•job? the largest group (68) was earning be
tween $10,000 and $12,000 per year. A smaller
number (23) were earning less than $10,000
per year while 37 were earning more than
$12,000 per year. Sixteen others gave no
salary information.
W hen asked whether they were working
with disadvantaged people, ninety-seven (97)
responded yes, while twenty-four (24) re
sponded no.
Type o f employment— In response to the
question dealing with the area o f law in which
they took employment the graduates answered
as fo llo w sF ifty -se v e n (57) indicated they
were working for public interest organisa
tions (e.g. Reginald TIeber Smith Fellowship
Program , Legal A id Society), twentv-two
(22) said they were working with the federal
government (e.g. N LR B , H E W ), ten indi
cated employment with state government (e.g.
attorney general’s office), seventeen (17) in
dicated employment with municipal govern
ment (e.g. district attorney’s office), twenty-
five (25) indicated employment in a private
capacity (e.g. law firm) and five (5 ) were
working in a non-legal capacity (e.g. consult
ants).
Place o f employment— Evidence that the
m ajority o f the graduates obtained employ-
(
43
ment outside tlicir hometown is found in the
responses to the question: Are you employed
in your hometown? Less than half (44) said
yes, while seventy-six (76) said no.
Time and manner o f employment— when
asked when they were offered their jobs
ninety-eight (98) said they had been offered
employment prior to graduation while twenty
(20) indicated that they had. been offered
their jobs after1 graduation. The vast m ajority
(80) found .jobs through their own initiative,
nine (9 ) through the assistance o f a dean or
instructor, thirteen (13) through a placement
office, nine (9 ) through a recruiter and seven
teen (17) through other means.
Location o f bar examination— When asked
where they had taken the bar exam the rc-
spondents named a total o f twenty-six differ
ent states. California was far and away the
most desired (28) with New York a poor sec
ond (13). The clear preference was for flic
more populous, industrial states.
Almost no responses were received on the
question dealing with performance on the bar.
This was primarily due to the fact that the
results were not yet in at the time the re
sponses were returned. As was indicated in
the introduction, the questionnaires were
mailed in August and July, 1971 and 1972 re
spectively. Since most jurisdictions do not
provide liar results for several months (e.g..
California and Washington, I).0 . publish re
sults in December), the responses were re
turned by the graduates before they had heard
any word from the bar. A follow-up mailer is
presently being prepared for the 1971 and
1972 graduates requesting information on bar
results.
\
y
44
A nalysis
A number o f inferences can be drawn from
the results o f the Survey o f both the ’71 and
’ /2 classes. First and foremost, is that the
graduates are proving out one o f the basic
tenets upon which the program was founded,
i.e., they are focusing their energies and skills
upon the problems of the poor and the disad
vantaged. Their insight into and first-hand
knowledge o f the poverty cycle when com
bined with the analytical and professional
abilities they possess as lawyers, represents
a powerful combination indeed. It has long
been feared that these graduates once having
finished law school would simply forget or re
ject any association with or sense o f obliga
tion to the disadvantaged communities from
which they came. Demonstrably, this has not
happened.
Tt is difficult to measure the effects o f this
development on the disadvantaged commu
nity. This is so because some o f the effects
are intangible. Hope and renewed confidence
in the basic fairness o f the society in which
they, the disadvantged live, are two signifi
cant yet nonquantifiable effects. In addition,
the presence o f sensitive indigenous advocates
has the effect o f reassuring the poor that their
interests are being protected by those who un
derstand their problems and frustrations.
A second and equally encouraging inference
that can be drawn from the survey is that al
though most CLEO graduates are going into
the area o f legal services, nevertheless, many
others are moving into every other m ajor area
o f law (with the possible exception o f teach
ing). The results o f the 1972 survey o f gradu
ates provide an excellent example. Those re
45
suits indicate that the graduates are moving
into federal, state and municipal governments
as well as into the private sector. 'This is an
encouraging development indeed in that it
indicates a rcceptivoness to minorities in all
areas o f law. It is also encouraging in that it
provides the opportunity for exposure to sig
nificant areas of legal expertise such as ad
ministrative, business and corporate law.
"Without a doubt- this panoply o f legal expe
rience will better enable minorities to partici
pate substantively and meaningfully at all
levels o f our system and the legal profession
in particular.
W ith regard to income, CLEO graduates
appear in the main to he commanding reason
ably good salaries, with some students doing
exceedingly well (over $16,000.00 per year).
Although comparative data for non-minority
graduates is not immediately available, it is
suggested here that a nominal differential i f
any, exists. Although the salaries o f CLEO
students appear to be competitive, ihe prefer
ence for seemingly lesser paying public serv
ice employment manifested by the CLEO
graduates indicates that salary was not tlio
deciding factor in job selection.
This is reinforced by the figures "which in
dicate that the vast m ajority obtained their
jobs by going out on their own, relying upon
their own initiative. This conscious process o f
job hunting and job selection strongly sug
gests that the graduates desired lo get into
public interest lawr and actively sought it out.
These same figures also indicate that the law
schools are not very active (fo r whatever rea
son) in the area of job development and place
ment o f minority students.
J
4(3
S u m m a r y
1
To summarize then, the survey results indi
cate that CLHO graduates are returning to
serve as lawyers in those disadvantaged com- 1
muni ties fiorn which they initially emerged
In addition, CLHO graduates are finding
their way into previously all-white yet all-
important areas o f law c.g., corporate law
films, District Attorneys’ Offices, ensurin'’-
thereby that the interests o f Blacks and other
minorities are represented- and promoted.
CLHO graduates are earning competitive sal
aries for recent graduates. This gives the
graduate greater freedom to further his pro
fessional interests and the interests o f his
community. In short, CLHO graduates are
making it and making it very well.
W hat began five years ago as a hold experi
ment subject to substantial skepticism and
apprehension is now emerging as one o f the
most significant ex'perimcnts in the field o f
legal education ever undertaken. Not only
have these CLHO students survived 3 rigor
ous years in law school but they have at "the
samp time succeeded in transforming the very
institution that generates lawyers, i.e., the law
schools, as is evidenced by the emergence o f
clinical programs to assist the poor and the
refocusing o f curricula upon poverty and the
legal process. In brief, i f the impact that the
CLHO student as a member o f a now genera
tion o f minority attorneys has had upon the
law* schools is any indication o f the impact
lie will have upon the world o f the practition
ers, we have just begun to witness a funda
mental and more equitable reorganization o f
the legal profession and the many social in
stitutions over which it holds sway.
47
Both the House and Senate ultimately passed the
appropriations bill, ILL . 13172 and President. Ford
signed the legislation on June 1, 1976 (Pub. Law 91-
301), providing program funds until June 20, 1977.
Congress has consistently legislated in favor o f pro
moting racial integration; the support given to CLHO
after such rigorous scrutiny can only confirm the con
gressional commitment. Therefore, the judgment o f
the Supreme Court o f California below in favor o f
Allan B akkc’s claim ought to he reversed as violative
o f the congressional mandate to promote racial inte
gration.
CONCLUSION
CLHO has provided data which speaks to the quali
fications o f law school applicants and to the successes
of special admission programs; inroads have been
made toward reversing the historic pattern o f racial
exclusion in higher education. Competent, dedicated,
and active attorneys from the ranks o f Blacks and
other i acini minorities have been produced. They serve
not only in those depressed areas o f social and eco
nomic concerns but in traditional legal and political
roles as well.
Such successes ought not be stopped. For, the pro
grams making this possible, such as CLHO, have con
gressional approval, are not constitutionally infirm,
and most o f all they work! The decision o f the Su-