Bakke v. Regents Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

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January 1, 1976

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Brief Collection, LDF Court Filings. Bakke v. Regents Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae, 1976. aa55b94d-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0e9fbba4-0897-4522-a4ca-a5baf5126dfc/bakke-v-regents-brief-of-the-naacp-legal-defense-and-educational-fund-as-amicus-curiae. Accessed November 01, 2025.

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1st the

Supreme Court of % United States
October Term, 1976

No. 76-811

T he R egents of the U niversity of California,

Petitioner,
—-v.-—

A llan B akkb,

ON WRIT OF CERTIORARI TO THE SUPEEME COURT OF CALIFORNIA

BRIEF OF THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack Geeenbeeg
J ames M. N abrit, I l l
Charles S. R alston
E ric S chnappee
D avid E . K endall
B ill L ann L ee
B eth J . L ief
K ellis P arker

10 Columbus Circle, Suite 2030
New York, New York 10019

Counsel for Amicus Curiae

I N D E X

PAGE

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

Summary of A rgum ent....................................... -............. 2

Argument .... ......................................................................... 2

I, Introduction ................................................ 2

II. Legislative History of the Fourteenth Amend
ment ....................................................................... -.... 10

A. Race-Conscious Legislation of the Recon
struction Era ...................................- ......... 13

(1) The 1864 Freedmen’s Bureau B il l ....... 13

(2) The 1865 Freedmen’s Bureau Act ........ 17

(3) The 1866 Freedmen’s Bureau Act ........ 18
(4) Freedmen’s Bureau Legislation, 1868-1870 40

(5) 1867 Relief Legislation .............................. 43

(6) The Colored Servicemen’s Claims Act .... 45

B. The Adoption of the Fourteenth Amendment 48

C. Discrimination in Medical Education During
the Last Century ....................................... 54

III. Be Jure Segregation in California Public Educa
tion ........... 57

IV. Minority Health Problems and Petitioner’s Spe
cial Admissions Program ...................................... 59

Conclusion 67

11
A ppendix A — page

Discrimination in Medical Education 1870-1977 .... la

A ppendix B—

De Jure Segregation in California Public Educa
tion ................................................ 12a

1. Elementary and Secondary School Segregation 12a

2. California’s Postsecondary Effort to Overcome
the Effects of Eacial Segregation at Lower
Levels of Public Education ................................ 21a

A ppendix C—

Morbidity and Mortality Statistics of the Black
Population ................... 31a

Table of A uthorities

Cases:

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.
1973) ..................... ...................................................13a, 20a

Addison v. High Point Memorial Hospital, No. C-96-
C-64 (M.D. N.C. Aug. 28, 1964) .............................. 9a

Anderson v. Matthews, 174 Ca. 537, 163 P. 902 (1917) 17a

Bakke v. Regents of University of California, — —
Cal. 3d ----- , 132 Cal. Rptr. 680, 553 P. 2d 1152
(1976) ........................ ..............................................3, 5, 6, 57

Batts v. Duplin General Hospital, No. 1110 (E.D.
N.C. Dec. 23, 1965), 11 Race E e l L. Rep. 1427
(1965) ............................................................................... 9a

Bell v. Fulton DeKalb Hospital Authority, No. 7966
(N.D. Ga. Feb. 23, 1965) 9a

Ill

PAGE

Bell v. Georgia Dental Association, 231 F. Supp. 299
(N.D. Ga. 1964) ......................................................10a 11a

Bell v. Maryland, 378 U.S. 226 (1964) ........................... 6
Bolling v. Sharpe, 347 U.S. 497 (1954) ... ............... . 5,9
Brice v. Landis, 314 F. Supp. 94 (N.D. Cal. 1969) ....... 13a
Brown v. Board of Education, 345 U.S. 972 (1953) .... 6
Brown v. Board of Education, 347 U.S. 483 (1954) ...1,4, 7,

15a,18a
Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C.

1976) .......................................................... 13a
Buefort v. Elias, No. P-242 (Pa. Human Rel. Commis

sioner Jan. 26, 1965), 11 Race Rel. L. Rep. 2186 .... 65
Burton v. Arkansas Tubercular Sanitorium, No. LR-

60-C-51 (E.D. Ark., May 3, 1966), 11 Race Rel.
L. Rep. 1933 ........................................................................ 9a

Carlin v. San Jose Unified School District, —— Cal.
App. Supp. 3d ——, ----- Cal. Rptr. ----- - (Super.
Ct. County of San Diego, No. 303800, filed March 9,
1977) ................................................................................. 14a

Clayton v. Person County Hospital, No. C-137-D 64
(M.D. N.C. Oct. 28, 1964) ........................................ 9a

CrawTord v. Board of Education, 17 Cal. 3d 280, 130
Cal. Rptr. 724, 551 P. 2d 28 (1976) ......................... . 14a

Cypress v. Newport News General and Nonsecretarian
Hospital, 375 F.2d 648 (4th Cir, 1967) ....................... 9a

Diana v. State Board of Education, N.D. Cal. Civ. Act.
No. C-70-37, R ep ., stipulation dated June 18, 1973 .... 14a

Eaton v. Board of Managers, 261 F.2d 521 (4th Cir.
1958), cert. den. 359 U.S. 984 ..................... ................ 9a

Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ........... 9a

Ferguson v. Skrupa, 372 U.S. 726 (1963) .............. 10

PAGE

Flagler Hospital, Inc. v. Hayling, 344 F.2d 950 (5th
Cir. 1965) ......................... 9a

Gaston County v. United States, 395 U.S. 285 (1969) .. 20a
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............... 5
Guey Heung Lee v. Johnson, 404 U.S. 1215 (1971) ..13a, 15a,

16a, 18a, 19a

Hall v. Roanoke-Chowan Hospital, No. 522 (E.D. N.C.
Sept. 7, 1965) ................................ 9a

Hawkins v. North Carolina Dental Society, 355 F.2d
718 (4th Cir. 1966) .................................. ............... 10a, 11a

Hernandez v. Texas, 347 U.S. 475 (1954) .................. 9

Jackson v. Pasadena City School District, 59 Cal. 2d
876, 31 Cal. Rptr. 606, 382 P. 2d 878 (1963) (en
banc) .................................................... 14a

Johnson v. Crawfis, 128 F. Supp. 230 (E.D. Ark. 1955) 9a
Johnson v. San Francisco Unified School District, 339

F. Supp. 1315 (N.D. Cal. 1971), app. for stay denied,
Guey Heung Lee v. Johnson, 404 U.S. 1215 (1917)
vacated and remanded, 500 F.2d 349 (9th Cir. 1974) 13a

Katzenbach v. Morgan, 384 U.S. 641 (1966) ................ . 8
Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974) .. 13a
Keyes v. School District No. 1, 413 U.S. 189 (1973) .... 17a,

18a, 58
Korematsu v. United States, 323 U.S. 214 (1944) ....... 9

Lau v. Nichols, 414 U.S. 563 (1974) .............................. 13a
Lewter v. Lee Memorial Hospital, No. 65-47-Ci. (M.D.

Fla. Dec. 10, 1965) ......................................................... 9a
Lochner v. New York, 198 U.S. 45 (1905) .................. 10
Lopez v. Seccombe, 71 F. Supp. 769 (S.D. Cal. 1944) .. 19a

PAGE

McLaughlin v. Florida, 379 U.S. 184 (1964) ............... 9
Mangrum v. Iredell Hospital, No. 519 (W.D. N.C.

Nov. 9, 1965) ............................... -.......... ........ -......... - 9a
Marable v. Alabama Mental Health Board, 297 F.

Supp. 291 (M.D. Ala. 1969) .............-........................ 9a
Mendez v. Westminster School District, 64 F. Supp.

544 (C.D. Cal. 1946), affirmed, 161 F,2d 744 (9th
Cir. 1947) (en banc) ......... ...... -..................... -........... - 18a

Morton v. Mancari, 417 U.S. 535 (1974) ....................... 4,5

NAACP v. San Bernardino City Unified School Dis
trict, 17 Cal. 3d 311, 130 Cal. Rptr. 744, 551 P. 2d
98 (1976) ...... ................................................. -.... - ........ 14a

Oregon v. Mitchell, 400 U.S. 112 (1970) ...................... 21a
Oyama v. California, 332 U.S. 633 (1948) ................... 19a

P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972), af
firmed, 502 F.2d 963 (9th Cir. 1974) ...................... 13a

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976) ............................................................. 58

Pena v. Superior Court, 50 Cal. App. 3d 694, 123
Cal. Rptr. 500 (Ct, App. 1975) ............................ -.... 14a

People v. San Diego Unified School District, 19 Cal.
App. 3d 252, 96 Cal. Rptr. 658 (Ct. App. 1971),
cert, denied, 405 U.S. 1016 (1972) ...................... 13a, 14a

Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948) .... 19a
Piper v. Big Pine School Dist., 193 Cal. 664, 226 P.

926 (1924) .................................................................. ----- 17a
Plessy v. Ferguson, 163 U.S. 537 (1896) ...................... 16a
Porter v. North Carolina Bd. of Control, No. C-123-

D-62 (M.D. N.C. Mar. 28, 1963) ............................... 9a
Pringle v. State Tuberculosis Bd., No. 1044 (N.D. Fla.

Jan. 26, 1966), 11 Race Rel. L. Rep. 1427 ...... ............ 9 a

9a
Rackley v. Board of Trustees, 238 F. Supp. 512 (E.D.

S.C. 1965) ................................... ....... ............................
Rackley v. Board of Trustees, 310 F.2d 141 (4th Cir.

1962) .............................................................. ........ ......... 9a
Railway Mail Association v. Corsi, 326 U.S. 88 (1945) 10
Rax v. State Department of Hospitals, C.A. No. 3265

(E.D. La. Dec. 23, 1965), 11 Race Rel. L. Rep. 384 .... 9a
Reed v. Reed, 404 U.S. 71 (1971) ............... ............. ..... 9
Reynolds v. Anniston Memorial Hospital No. 65-206

(N.D. Ala., June 21, 1965) ...... ...................... ............. 9a
Rogers v. Druid City Hospital, 10 Race Rel. L. Rep.

1273 (1965) .................................................... ................ 9a
Romeo v. Weakley, 226 F.2d 399 (9th Cir. 1955) ....... 19a
Royster Guano Co. v. Virginia, 253 H.S. 412 (1920) ... 9

San Francisco Unified School District v. Johnson,
3 Cal. 3d 937, 92 Cal. Rptr. 309, 479 P. 2d 669 (1971)
(en banc), cert, denied, 401 U.S. 1012 (1971) ____ 14a

Santa Barbara School District v. Superior Court, 13
Cal. 3d 315, 118 Cal. Rptr. 637, 530 P. 2d 605 (1975)
(en banc) ......................................................................... 15a

Simkins v. Moses Cone Memorial Hospital, 323 F.2d
959 (4th Cir. 1963), cert, denied 376 U.S. 938
(1964) .....................................................................1,2, 7a, 9a

Sipuel v. Board of Regents, 332 U.S. 631 (1948) ....... 2a
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) .... 4, 6,

7,9
Smith v. Hampton Training School for Nurses, 360

F.2d 577 (4th Cir. 1966) ........................ ............ ........ ga
Soria v. Oxnard School District Board of Trustees,

386 F. Supp. 539 (C.D. Cal. 1974), on remand from
488 F.2d 577 (9th Cir. 1973) ................... ...... .......... . I3a

Spangler v. Pasadena City Board of Education, 311
F. Supp. 501 (C.D. Cal. 1970) ........................ ..... 13a, 17a

Vll

PAGE

Sparf v. United States, 156 U.S. 51 (1895) ................... 6
Strauder v. West Virginia, 100 U.S. 303 (1880) ......—- 4
Swann v. Cliarlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .......................................................... 58

Takaliashi v. Fish and Game Commission, 334 U.S. 410
(1948) ..... .......................................................................... 19a

Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885) ............... 17a

United Jewish Organizations of Williamsburgh, Inc.
v. Carey, ----- U.S. -------, 51 L.Ed. 2d 229 (1977) .... 4

W ard v. Flood, 49 Cal. 36 (1874) .................................. 16a
Washington v. Blampin, 38 Cal. Rptr. 235 (Calif.

Dist. Ct. of Appeals 1964), 9 Race Rel. L. Rep.
899 .............................................-...................................... 65

Washington v. Davis, 426 U.S. 229 (1976) ................... 5
Weems v. United States, 217 U.S. 349 (1910) ............... 7
Wood v. Hogan, 214 F. Supp. 53 (W.D. Va. 1963) ....... 9a
Wvsinger v. Crookshank, 82 Cal. 588, 23 P. 54 (1890) .. 16a

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................. 5,19a

Statutes:
State Statutes
Ala. Code tit. 45 §4; §248 tit. 46, §189 .......................... 8a
Ark. Stats. Ann. §§7-401, 7-402, 7-404 .................... 8a
General School Law of California §1662 at 14 (1880) .. 16a
1860 Cal. Stats., c. 329, §8 .............................................. 16a
1863 Cal. Stat., c. 159, §68.................................................. 16a
1885 Cal. Stats., c. 117, §1662 .......................................... 17a
1893 Cal. Stats., c, 193, §1662 .......................................... 17a
1921 Cal. Stats., c. 685, § 1 ......................... 17a
1935 Cal. Stats., c. 488, §§1, 2 .......................................... 18a

V l l l

PAGE

1947 Cal. Stats., c. 737, § 1 .................................................. 18a
1959 Cal. Stats., Res. c. 160 .............................................. 21a
Assembly Concurrent Resolution Number 151, 1974

Cal. Stats., Res. c. 209 (1974) .......................... 8, 21a, 27a
Chicago Ordinance of March 14, 1956, 2 Race Rel. L.

Rep. 697 ........................................................................... 9a
Del. Code Ann. tit. 16 §155 (1953) .................................. 8a
Ga. Code Ann. §35-225 (1935); §35-308 (1957 supp.) .. 8a
Ky. Rev. Stats. §215.078 and §205.180 (1953) (both re

pealed in 1954) ................................................... 8a
La. Rev. Stats. Ann. §46.181 (1950); Acts. 1904 ........ 8a
Md. Code Ann. Art. 59, §§61-63; §§285-286 .................. 8a
Miss. Code Ann. §6883; §6927; §6973; §6974 .............. 8a
Mo. Rev. Stats. §9390 (1939) ...................... ................... 8a
N.C. Gen. Stats. §122-3 (1957 Supp.) .......................... 8a
Okla. Stats. Ann. tit. 10, §§201-206.1 (1951); tit. 35,

§§251-256 tit. 63 §§531, 532 .......................................... 8a
S.C. Code 1942, §6223 ...................................................... 8a
Tenn. Code Ann. §33-602 (1955) ................................. 8a
Tex. Civ. Stats. Ann. art. 324a (1952) ....................... 8a
Tex. Civ. Stats. Ann. art. 324a (1952) .......................... 8a
Va. Code §§37-5 to 37-6 (1950) ...................................... 8a
W. Va. Code §2632 (1955); §2636 .................................. 8a

TJ.S. Statutes
20 U.S.C. §1600 et seq. (1972) ..................................... 12a
42 U.S.C. §2000d (1964) .................................................. 12a
12 Stat., c. 33 at 650 (1863) ....................................... 12
12 Stat., c. 103 at 796 (1863) .......................................... 12
13 Stat., c. 90 at 507-08 (1865) .......................................... 12
13 Stat. c. 90 at 508 (1865) ............................................ 37
13 Stat., c. 92 at 511 (1865) .......................................... 12
14 Stat. c. 31 at 27 (1866) .............................................19, 34
14 Stat., c. 127 at 66, 67 (1866) ...................................13, 35

PAGE

14 Stat. c. 200 at 173-177 (1866) .............................-1 9 , 39
14 Stat., c. 200 at 174-176 (1866) .............. 11,12,35,36,37
14 Stat., c. 296 at 317 (1866) ......................................... 12
14 Stat., Ees. 86 at 368 (1866) ..................................... 45
15 Stat., Ees. 3 at 20 (1867) ............... 12
15 Stat., Ees. 4 at 20 (1867) ............................................ 43
15 Stat., Ees. 25 at 26 (1867) .................................... —.11, 48
15 Stat., Ees. 28 at 28 (1867) ......................................28, 44
16 Stat. c. 14 at 8 (1869) .......................... .......... ............ 12
16 Stat., c. 114 at 506-07 (1871) .................................. 12
17 Stat. 366, 528 (1872) .................................................. 12

Congressional Authorities:

Cong. Globe, 38th Cong., 1st Sess. (1864) ...............13,14,15
Cong. Globe, 38th Cong., 1st Sess. App. (1864) .......14,15
Cong. Globe App., 39th Cong. 1st Sess. 69-78 (1866) ..22, 24,

25, 28, 30
Cong. Globe, 39th Cong., 1st Sess. 251, 297 (1866) ....24, 27
Cong. Globe, 39th Cong., 1st Sess. 319-397 (1866) ....23,25,

26, 28, 30, 31, 38
Cong. Globe, 39th Cong., 1st Sess. 401-421 (1866) ....24,31
Cong. Globe, 39th Cong., 1st Sess. 514-515, 544, 588-

590 (1866) ........................................ .......... 23,28,29,30
Cong. Globe, 39th Cong., 1st Sess. 603, 623-635, 688

(1866) ............................................4, 22, 24, 25, 27, 29, 31, 52
Cong. Globe, 39th Cong., 1st Sess. 935-943 (1866) ....32, 33
Cong. Globe, 39th Cong., 1st Sess. 1034, 1088, 1092

(1866) ....................................................................... 49,50,51
Cong. Globe, 39th Cong., 1st Sess. 1117-1118, 1123-1125,

1160 (1866) ..................................................................... 4
Cong. Globe, 39th Cong., 1st Sess. 2459, 2472 (1866) .... 52
Cong. Globe, 39th Cong., 1st Sess. 2501, 2511-2512,

2537-2538, 2545 (1866) ................................................. 51, 52

PAGE

Cong. Globe, 39th Cong., 1st Sess. 2743, 2772-2780,
2799 (1866) ..........................................................34,36,37,38

Cong. Globe, 39th Cong., 1st Sess. 2807, 2869 ........... 51
Cong. Globe, 39th Cong., 1st Sess. 2941, 2977 (1866) ....51, 52
Cong. Globe, 39th Cong. 1st Sess. 3042, 3071 (1866) ..34,51
Cong. Globe, 39th Cong. 1st Sess. 3149 (1866) ........... 51
Cong. Globe, 39th Cong. 1st Sess. 3413 (1866) .......38, 51
Cong. Globe, 39th Cong. 1st Sess. 3524, 3562 (1866) ....38, 51
Cong. Globe, 39th Cong. 1st Sess. 3840-3842, 3850

(1866) ......................................................................... ....39,51
Cong. Globe, 40th Cong., 1st Sess. (1867) ...........43, 44, 46
Cong. Globe, 40th Cong., 2d Sess. (1868) ................... 40
Cong. Globe, 41st Cong., 1st Sess. (1870) ................... 42, 55
Hearing on 8. 3585, Health Manpoiver Act Before the

Subcommittee on Health of the Senate Comm, on
Labor and Public Welfare, 93rd Cong., 2d Sess.
(1974) ............................................................................... 63

H.R. Exec. Doc. No. 11, 39th Cong., 1st Sess. (1866) ..19, 20
H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess. (1865) .... 20
H.R. Rep. No. 2, 38th Cong., 1st Sess. (1864) ............. 15
H.R. Rep. No. 121, 41st Cong., 2d Sess. (1870) ........... 55
S. Rep. No. 137, 38th Cong., 2d Sess. (1865) ................ 17

Other Authorities:

A merican P ublic H ealth A ssociation, Minority

H ealth Chartbook (1974) .......................................59,31a
A ssociation of A merican Medical Colleges Task

F orce to the I nter-A ssociation Committee of E x
panding E ducational Opportunities in Medicine
F or B lacks and Other Minority S tudents (1970) ..57, la

Atty. Gen. Opinion, Michigan, July 17, 1957, 2 Race
Eel. L. Rep. 1203 ........................................... 9a

G. Bentley, A History of the Freedmen’s Bureau
(1955) ...........................................12,16,18,35,41,45,48,54

PAGE

Bickel, The Original Understanding and the Segrega
tion Decision, 69 H arv. L. R ev. 1 (1955) .......... ........ 4

Black, The Lawfulness of the Segregation Decisions,
69 Y ale L.J. 421 (1960) .................................................. 4

J. B lackwell, T he B lack Community (1975) .......56, la
J . B laine,. 2 T wenty Y ears in Congress (1886) ........... 12
B ureau oe R efugees, F reedmen and A bandoned

L ands, S ixth S emi-A nnual R eport on S chools for

F reedmen (July 1, 1868) ..................... ........................ 54
B ureau of R efugees, F reedmen and A bandoned

L ands, E ighth Semi-A nnual R eport on S chools

for F reedmen (July 1, 1869) ...................... ............... 54
California Coordinating Council for H igher E duca

tion, H. K itano & D. Miller, A n A ssessment of
E ducational Opportunity P rograms in California

H igher E ducation (1970) .......................24a, 28a, 29a, 30a
California Coordinating Council for H igher E duca

tion, K. Martyn, I ncreasing Opportunities in
H igher E ducation for D isadvantaged S tudents

(1966) .................... 25a, 28a
22 California D epartment of J ustice, Opinions of

the A ttorney General, Opinion 6735a (January 23,
1930) 931-932 (1930) ............................................ ........ 18a

California L egislature, A ssembly, A Master P lan
for H igher E ducation in California, 1960-1975
(1960) ......................................................... ..................... 21a

California L egislature, A ssembly P ermanent S ub-
com. on P ostsecondary E ducation, U nequal A ccess

to College (1975) ......................................................28a, 30a
California L egislature, J oint Com. on H igher E d

ucation, K. Martyn, I ncreasing Opportunities for
D isadvantaged S tudents, P reliminary Outline

(1967) ......................................................................... 24a, 28a

Xll

PAGE

California L egislature, J oint Com. on H igher E d
ucation, T he Challenge of A chievement : A R e
port on P ublic and P rivate H igher E ducation in

California (1969) ........................................22a, 24a, 25a, 28a
California Legislature, J oint Com. on the Master

P lan for H igher E ducation, N airobi R esearch
I nst ., B lacks and P ublic H igher E ducation in

California (1973) ............................... ................................ 29a
California L egislature, J oint Com. on the Master

P lan for H igher E ducation, R. L opez & D. E nos,
Chicanos and P ublic H igher E ducation in Califor
nia (1972) ............................................................. ........... 29a

California Legislature J oint Com. on the Master
P lan for H igher E ducation, R. Y oskioka, A sian-
A mericans and P ublic H igher E ducation in Cal
ifornia (1973) ............................... - .................................... 29a

California L egislature, J oint Com. on the Master

P lan for H igher E ducation, R eport (1973) ........26a, 28a
California P ostsecondary E ducation Commission,

E qual E ducation Opportunity in California P ost
secondary E ducation: P art 1 (1976) .... 28a, 30a

California P ostsecondary E ducation Commission,
P lanning for P ostsecondary E ducation in Cal
ifornia : A F ive Y ear P lan U pdate, 1977-1982
(1977) ...........................................................-....................21a, 22a

California S tate D epartment of E ducation, R acial
and E thnic S urvey of California P ublic S chools,
F all 1966 (1967), F all 1968 (1969) and F all 1970
(1971) .............................................................-..................12a, 19a

H. Carter, T he A ngry S car, 57 (1959) ............................ 55
Center for N ational P olicy R eview, J ustice D e

layed, HEW and N orthern S chool D esegregation
(1974) ................................................................................... - 14a

XLU

PAGE

Center eor N ational P olicy R eview, T rends in B lack

S chool S egregation, 1970-1974, Vol. I (1977) ......... 12a
Center eor N ational P olicy R eview, T rends in H is

panic S egregation, 1970-1974, Vol. I I (1977) ........... 12a
Chassan, Race, Age and 8 ex in Discharge Probabilities

of First Admissions to a Psychiatric Hospital, 26
P sychiatry 391 (1963) ....................... - ........................ 66

Ckerkasky, Medical Manpower Needs in Deprived
Areas, 44 J . Med. E d. 126 (1969) .............-............... -61, 65

Citizens Commission on Graduate Medical E ducation,
T he Graduate E ducation of P hysicians (1960) ....... 62

Coe & Wesson, Social Psychological Factors Influenc
ing the Use of Community Health Resources, 55
A m . J. P ub . H ealth 1024 (1965) .................................. 66

Commissioner of the B ureau of R efugees, F reedmen

and A bandoned L ands, R eport, R eport (1866) ....... 54
Committee on E ducation for F amily P ractice, Meet

ing the Challenge of F amily P ractice (1966) ....... 62
Comely, Distribution of Negro Physicians in the

United States in 1942, 124 JAMA 826 (1944) ........... 63
Comely, The Economics of Medical Practice and the

Negro Physician, 43 JAMA 84 (1951) ....................... 63
Crawford, Rollins & Sutherland, Variations between

Negroes and Whites in Concepts of Mental Illness
and its Treatment, 84 A n n . N.Y. A cad. Sci. 918
(1963) ............................................................................... 66

J. Curtis, B lacks, Medical S chools and S ociety
(1971) ........................................................... 56, 63, 65, la , 3a

Curtis, Minority Student Success and Failure with the
National Intern and Resident Matching Program, 50
J. Med. E d. 563 (1975) .................................................. 65

Parity, Crucial Health and Social Problems in the
Slack Community, J ournal of B lack H ealth P er
spectives 1 (June/July 1974) ......................... -....... 60,32a

XIV

PAGE

Davis, A Decade of Policy Developments in Providing
Health Care for Low Income Families in H aveman,
R . E d. A D ecade of F ederal A nti-P overty P olio a :
A chievements, F ailures and Lessons (1976) .......... 34a

W. DuBois, B lack Reconstruction (1935) ................... 54
Fein, An Economic and Social Profile of the Negro

American, in K. Clark & T. P arsons, eds. The

N egro A merican (1966) ........................................... 61
R. F ein , T he D octor S hortage: A n E conomic Diag

nosis (1967) ............................................................................. 62
H. F lack, The A doption of the F ourteenth A mend

ment (1908) .......................................................................... 4, 48
W. F leming, 2 D ocumentary H istory of R econstruc

tion (1906) .......................................................... ............. ..11, 55
Governor’s Commission on the L os A ngeles Riots,

V iolence in the City (1965) ............. .......... ....... ....... . 19a
Haynes, Distribution of Black Physicians in the United

States, 1967 210 JAMA 69 (1969) ................................. 63
I. H endrick, The E ducation of N on-Whites in Cal

ifornia, 1849-1970 (1977) ......................... 16a, 17a, 18a, 19a
R. H enry. The S tory of Reconstruction (1938) ........ 55
Hochheister, et al., Effect of the Neighborhood Health

Center on the TJse of the Pediatric Emergency De
partments in Rochester, N .Y., 285 New England
Journal of Medicine (July, 1971) .............................. 60

Hollingshead and Redlich, Social Stratification and
Psychiatric Disorder, 18 A mer. S oc. Rev. 163 (1953) 66

O. H oward, 2 A utobiography (1907) ........................ 12, 20, 54
Iba, Niswander & Woodville, Relation of Prenatal Care

to Birth Weights, Major Malformations, and New
born Deaths of American Indians, 88 H ealth Ser
vices R eports 697 (1973) ..........................................60, 33a

Jackson, The Effectiveness of a Special Program for
Minority Group Students, 47 J. M ed. E d. 620 (1972) 62

XV
PAGE

J ohnson, History of the Education of Negro Physi
cians, 42 J . Med. E duc. 439 (1967) ................ 56, 64, la , 10a

1). K essner et al., Contrasts in H ealth S tatus, V ol
ume 1 I nstant Heath: A n A nalysis by Maternal

R isk and Health Care (1973) ................................. 60, 33a
R. L ogan, H oward U niversity: T he F irst H undred

Years, 1867-1967 (1969) ..... .............................................. 54
E. McP herson, T he P olitical H istory of the U nited

S tates o f A merica D uring the P eriod of Recon
struction (1871) .................................................................... 20

J. McP herson, The S truggle for E quality (1964) .... 33
Maternal and Child Health Service, U.S. D epart

ment of H ealth, E ducation and W elfare, P romot
ing the H ealth of Mothers and Children, F iscal

Year 1972 ............................................................................60, 34a
Melton, Health Manpower and Negro Health: The

Negro Physician, 43 J. Med. E d. 798 (1968) ....61,65,10a
Meltsner, Equality and Health, 115 P a. L. R ev. 22

(1966) ....................................................................................... 9a
8 Messages and P apers o f the P residents (1914) ....31, 32,

34, 38
Mills, Each One Teaches One, J. B lack H ealth P er

spectives (Aug.-Sept. 1974) ..... ................................. 32a
Montagu, P renatal I nfluences (1962) ...................... 33a
Morais, T he H istory of the N egro in Medicine

(1967) ..................................................... -........ 56, la , 7a, 10a
P. Murray, S tates’ Laws on R ace and Color (1951) ..2a, 8a
N ational Center for H ealth S tatistics, Department

of H ealth, E ducation and W elfare, Monthly
V ital S tatistics R eport, S ummary R eport F inal

M ortality S tatistics (1973) .....................................59, 32a
N ational Center for H ealth S tatistics, D epartment

of H ealth, E ducation and W elfare, V ital and
H ealth S tatistics, V olume of P hysician V isits,
U.S., July 1966-June 1967 (1968) ............. ................. 60

XVI

PAGE

National F oundation, A nnual Report (1974) ........... 33a
N inth S emi-A nnual Report on S chools for F reed-

men (Jan. 1, 1870) .......................................................... 54
N.Y. Dept, of Welfare Policy, Dec. 12, 1956, 2 R ace

R el. L. R ep. 511 ............................................ ................. 9a
C. Odegaard, Minorities in Medicine (1977) ........56, 61, 62,

64, 4a, 5a, 6a
P. P ierce, T he F reedmen’s B ureau (1904) ................ 18
R abkin & S truening, E thnicity, S ocial Class and

Mental I llness (1976) ....................................................... 66
Reissman, The Use of Health Services by the Poor,

S ocial P olicy 41 (M ay/June 1974) ...........................60,66
D. Reitzes, N egroes and Medicine (1958) ....63, 3a, 4a, 7a, 9a
Reitzes & Elkhanialy, Black Physicians and Minority

Group Health Care— The Impact of NMF, 14 Med
ical Care 1052 (1976) ....................................................... 64

Report of the Commissioner of the Bureau of Ref
ugees, Freedmen and Abandoned Lands, H.R. E xec.
Doc. No. 11, 39th Cong. 1st Sess. (1865) ................... 12

R eport of the Commissioner of the B ureau of R ef
ugees, F reedmen and A bandoned Lands (1867) ...... 40

Report of the Carnegie Council on P olicy S tudies in
H igher E ducation, P rogress and P roblems in Med
ical and Dental E ducation (1976) ............................... 61

R eport of the N ational Advisory Commission on

Civil D isorders (1968) ....................................................... 61
Reports of Detroit Mayor’s Interracial Committee

(1956), 1 R ace R el. L. R ep. 1123......................... ........ 9a
Richard, The Negro Physician: A Study in Mobility

and Status Inconsistency, 61 JNMA 278-279 (May,
1069) ..... ........................................................................... 62

XVII
PAGE

Robertson, et al., Toward Changing the Medical Care
System: Report of an Experiment in H aggarty,
T he B oundaries op H ealth Care, Reprinted from

Alpha Omega Honor Society, P haros of A lpha

Omega A lpha , Vol. 35 ................................... -............... 34a
Rodgers, The Challenge of Primary Care, D a e d a l u s 82

(Winter 1977) ............................................. -..... -........ 62, 34a
Schaffer & Myers, Psychotherapy and Social Stratifi

cation, 17 P sychiatry 83 (1954)............................ ....... 66
Schleifler, et al., Clinical Change in Jail-Referred Men

tal Patients, 18 A rchives of General P sychiatry 42
(1968) .............. 66

Singer, Some Implications of Differential Psychiatric
Treatment of Negro and White Patients, S ocial

S cience and Medicine 1 (1967) ............-................... ... 66
Strauss, Medical Ghettoes, in P atients, P hysicians

and Illness 381 (E.Jaco, ed. 1972) ........ ........................... 66
tenBroek, E qual U nder L aw (rev. ed. 1965) ...............4,49
Thompson, Curbing the Black Manpower Shortage, 49

J. M ed. E d. 944 (1974) .............. ...................................64, 66
T. T hompson and S. B arrely, A S tudy of the D istri

bution and Characteristics of B lack P hysicians in
the U nited S tates, 1972 (NMA Foundation 1973) .... 62

B. T unley , T he A merican H ealth S candal (1966) ..60, 32a
U.S. B ureau of the Census, Current P opulation Re

ports, Series P-23, No. 46, The Social And Economic
Status of the Black, Population in the United States,
1972 (1973) ............................. 15a

U.S. B ureau of the Census , H istorical S tatistics of
the U nited S tates, Colonial T imes to 1970, P art I
(1976) ..................................... 15a

U.S. B ureau of the Census, 1970, Census of P opula
tion, Series PC(2)-2A, State of Birth (1973) .......... 15a

U.S. B ureau of the Census, Occupational Character
istics, 1970 ................................................. 4a

XV111

PAGE

U.S. B ureau oe the Census, S tatistical A bstract of
the U nited S tates, 1976 (1976)....9, 50, 59, 64, 4a, 12a, 31a

U.S. Civil B ights Commission, Mexican-A merican

E ducation S tudy, Reports I-YI (1971-1974) ............ 20a
1976 U.S. Code Cong. & A dmin. N ews 5390, 5392-5393 61
U.S. C o m m , on Civil R ights, F ulfilling the Letter

and S pirit of the Law (1976) .......................................... 14a
U.S. Comm, on Civil Rights, 3 The F ederal Civil

Rights E nforcement E ffort— 1974, To Ensure
Equal Educational Opportunity (1975) ....................... 12a

U.S. D epartment of H ealth, E ducation and W elfare,
Office for Civil R ights, D irectory of P ublic E le
mentary and Secondary S chools in Selected D is
tricts, E nrollment and S taff by R acial/ E thnic
Groups, F all 1968 (1970), F all 1970 (1972) and
F all 1972 (1974) ......................................................12a, 15a

U.S. P ublic H ealth S ervice, D ept, of H ealth, E duca
tion and W elfare, Minority H ealth Chartbook

(1974) ............................... ............................................... 4a
U.S. P ublic H ealth Service, U.S. D epartment of

Health, E ducation and W elfare, Selected V ital
and H ealth S tatistics in P overty and N on-P overty
A reas o f 19 Large Cities, U nited S tates, 1969-71..60, 33a

U.S. P ublic H ealth Service, The S upply of H ealth
Manpower: 1970 P rofiles and P rojections to 1990
(1974) ............................................................................ . 62

C. V an W oodward, T he S trange Career of J im Crow

(3rd ed. 1974) ................................................................. 55
M. W einberg, A Chance to Learn (1977) .... ..........16a, 18a
Weiner & Milton, Demographic. Correlates of Low

Birth Weight 91 A m . J. E pidemio, 260 (Mar. 1970) 60, 33a
C. W ollenberg, A ll Deliberate Speed, Segregation

and E xclusion in California S chools, 1885-1975
(1976) .... ....... ................................................. ....16a, 17a, 18a

I n t h e

Olnurt ot % luiteii States
October Term, 1976

No. 76-811

T he R egents of the U niversity of California,
Petitioner,

A llan B akke.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

BRIEF OF THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest of Amicus

The N.A.A.C.P. Legal Defense and Educational Fund,
Inc., is a non-profit corporation established under the laws
of the State of New York. It was formed to assist black
persons to secure their constitutional rights by the prose
cution of lawsuits. Its charter declares that its purposes
include rendering legal services gratuitously to black per
sons suffering injustice by reason of racial discrimination.
For many years attorneys of the Legal Defense Fund have
represented parties in litigation before this Court and the
lower courts involving a variety of race discrimination
issues in the fields of education and health care. See, e.g.,
Brown v. Board of Education, 347 U.S. 483 (1954); Sim-
Jcins v. illoses Cone Memorial Hospital, 323 F.2d 959 (4th

Cir. 1963), cert, denied 376 U.S. 938 (1964). The Legal
Defense Fund believes that its experience in such litigation
and the research it has performed will assist the Court in
this case. The parties have consented to the filing of this
brief and letters of consent have been filed with the Clerk.

Summary of Argument
We submit that the Fourteenth Amendment prohibits

any racial classification which has the purpose or effect
of stigmatizing as inferior any racial or ethnic group. The
history of the Fourteenth Amendment demonstrates, how
ever, that the framers intended it to legitimate and to
allow implementation of race-specific remedial measures
where a substantial need for such programs was evident.
This history is clear and unequivocal.

There has been extensive de jure segregation in the
California public educational system, an inevitable result
of which has been the production of a disproportionately
low number of minority-race doctors. Moreover, minority
populations in California and the nation suffer serious
health and health care delivery problems. Petitioners’ spe
cial admission program is intended and reasonably struc
tured to ameliorate both of these conditions and is there
fore constitutional under the Equal Protection Clause.

ARGUMENT
I.

Introduction

Much has been written on the question presented in
this case, and a large number of amicus curiae briefs
have been filed. We will not attempt to recapitulate what
has been submitted and will rather try to set forth rele-

vant materials which have not, insofar as we are aware,
been presented for the Court’s consideration.

We begin with what we believe to be a focusing charac
terization of the facts which engendered this litigation:
while Linda Brown was denied entrance to Topeka’s
Sumner Elementary School almost three decades ago be
cause she. was black, respondent Allan Bakke is not a
member of a racial group which is systematically ex
cluded from the University of California-Davis medical
school; indeed, whites comprise and have comprised the
vast majority of the student body. The school’s special
admission policy did favor—for permissible reasons which
we shall discuss—minority groups of which respondent
Bakke was not a member, and a result was to deny ad
mission to some applicants because there were not enough
places for all those who wished to attend. But the critical
fact about the special admission policy is, we submit,
that it had neither the intention1 nor effect of stigmatizing
respondent as inferior or slurring him because of his race
or color.

The Equal Protection Clause of the Fourteenth Amend
ment invalidates a State statute or policy, aimed at any
racial or ethnic group, which “is practically a brand upon
them, affixed by the law; an assertion of their inferiority,

1 Respondent has not contended that the University’s special ad
mission program was adopted with the purpose of stigmatizing non
minority applicants as inferior, and nothing in the record contro
verts the University’s allegation, made in its cross-complaint for
declaratory relief, that “the purposes of the special program were
to promote diversity in the student body and the medical profes
sion, and to expand medical education opportunities to persons
from economically or educationally disadvantaged backgrounds.”
Bakke v. Regents of University of California,----- Cal.3 d ------ , 132
Cal. Rptr. 680, 553 P.2d 1152, 1155 (1976). It is rather the effect
of this admissions program which respondent Bakke claims subjects
him to “invidious discrimination because of his race,” ibid, (empha
sis added).

and a stimulant to . . . race prejudice.” Strauder v. West
Virginia, 100 U.S. 303, 308 (1880). The harshly discrimi
natory “black codes” enacted by the Confederate States
shortly after Appomattox supplied a major impetus for
the adoption of the Fourteenth Amendment.2 A percep
tion of the unconstitutionality of invidious and stigmatiz
ing racial classifications was at the heart of the Court’s
landmark Brotvn v. Board of Education, 347 U.S. 483
(1954),3 decision, and this recognition has recently been
rearticulated by a majority of the Court.4 See also Morton
v. Mancari, 417 U.S. 535, 554 (1974).4a

2 tenBroek, Equal Under Law 180-181 (rev. ed. 1965); F lack,
The Adoption op the F ourteenth Amendment 15, 72-73, 96
(1908); Bickel, The Original Understanding and the Segregation
Decision, 69 Harv. L. Rev. 1, 13-14, 17 (1955). See also Cong.
Globe, 39th Cong. 1st Sess. 603, 1117, 1118, 1123-1125, 1151, 1160
(1866) ; Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70-71
(1873).

3 The Court held that to separate black school children “from
others of similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the commu
nity that may affect their hearts and minds in a way unlikely ever
to be undone.” Brown v. Board of Education, supra, 347 U.S. at
494. The Court’s decision recognized “a plain fact about the soci
ety of the United States—the fact that the social meaning of segre
gation is the putting of the Negro in a position of walled-off in
feriority—or the other equally plain fact that such treatment is
hurtful to human beings.” Black, The Lawfulness of the Segrega
tion Decisions, 69 Yale L.J. 421, 427 (1960).

4 In United Jewish Organizations of Williamsburgh, Inc. v.
Carey,----- U.S. -------, 51 L.Ed. 2d 229 (1977), the Court consid
ered whether New York’s use of racial criteria to draw electoral
district lines, in an effort to comply with Section 5 of the 1965
Voting Rights Act, violated either the Fourteenth or Fifteenth
Amendment. Three members of the Court found New York’s re-
districting plan constitutionally acceptable despite the fact that the
State “used race in a purposeful manner” because “its plan repre
sented no racial slur or stigma with respect to whites or any other
race”—the State’s action was thus “not discrimination violative of
the Fourteenth Amendment.” 51 L.Ed. 2d at 246 (opinion of Mr.
(See footnote 4a on following page.)

The absence of a stigmatizing intent in this case is sig
nificant because the Court has recently asserted that dis
proportionate racial impact is ordinarily6 not alone enough
to “trigger the rule . . . that racial classifications are to be
subjected to the strictest scrutiny and justifiable only by
the weightiest of considerations.” Washington v. Davis,
426 U.S. 229, 242 (1976). Application of this standard
would ipso facto require reversal of the judgment below.
But respondent contends that since petitioner’s admis
sions policy consciously takes race into consideration and
in many cases6 applies a differential admissions standard

Justice White for the Court). Two other members of the Court
agreed that “ [ujnder the Fourteenth Amendment the question is
whether the reapportionment plan represents purposeful discrimi
nation against white voters . . . . The clear purpose with which
the New York Legislature acted—in response to the position of the
United States Department of Justice under the Voting Rights Act
—forecloses any finding that it acted with the invidious purpose of
discriminating against white voters.” 51 L.Ed. 2d at 254-255 (con
curring opinion of Mr. Justice Stewart) (footnote omitted).

4a Morton v. Mancari, though dealing with a “tribal” rather than
a strictly racial preference, 417 U.S. at 553, is particularly relevant
to this case, for there the Court held that the Fifth Amendment’s
prohibition of racial discrimination, Bolling v. Sharpe, 347 U.S.
497 (1954), was not violated by a hiring preference for certain
Indians by the Bureau of Indian Affairs. The Court ruled that
such a preference was appropriate “to enable the BIA to draw more
heavily from among the constituent group in staffing of its projects,
all of which, either directly or indirectly, affect the lives of tribal
Indians.” Supra at 554. It was held that Congress could permissi
bly have found that the inclusion of such Indian personnel would
“make the BIA more responsive to the needs of its constituent
groups.” Ibid.; see also Califano v. Webster, ----- U.S. ------, 45
U.S.L.W. 3630 (March 21, 1977).

5 But see Washington v. Davis, 426 U.S. 229, 252-256 (1976)
(concurring opinion of Mr. Justice Stevens) ; Gomillion v. Light-
foot, 364 U.S. 339 (I960); Yich Wo v. Hopkins, 118 U.S. 356
'(1886).

6 The categories established in petitioner’s admissions program
were by no means racially hermetic. A number of minority appli
cants were admitted under the regular admissions program between
1970 and 1974. Bakke v. Regents of University of California, supra,

on the basis of race, the policy is unconstitutional under
the Fourteenth Amendment without regard to stigmatizing
motivation.

The Court below has purported to consider the validity
of petitioner’s admissions policy “ [r]egardless of its [the
Equal Protection Clause’s] historical origin,” Balike v.
Regents of University of California,----- Cal.3d-------, 132
Cal. Rptr. 680, 553 P.2d 1152, 1163 (1976). This Court has
emphasized, however, that constitutional questions arising
under the Fourteenth Amendment cannot “be safely and
rationally [re] solved without a reference to that history
[of the Amendment’s enactment],” Slaughter-House Cases,
83 U.S. (16 Wall.) 36, 67 (1873),7 and the first question this
Court asked counsel in the 1954 desegregation cases to ad
dress upon reargument was the intention of the framers
of the Fourteenth Amendment as to school segregation.8

553 P.2d at 1165 n.21. Petitioner did not contest, however, the
trial court’s finding that “applicants who are not members of a
minority are barred from participation in the special admission
program,” id. at 1159.

7 “Our sworn duty to construe the Constitution requires . . . that
we read it to effectuate the intent and purposes of the Framers. We
must, therefore, consider the history and circumstances indicating
what the Civil War Amendments were in fact designed to achieve.”
Bril v. Maryland, 378 U.S. 226, 288-289 (1964) (concurring opinion
of Mr. Justice Goldberg). A “questiofn] of constitutional construc
tion . . . is largely a historical question,” Sparf v. United States,
156 U.S. 51, 169 (1895).

8 Brown v. Board of Education, 345 U.S. 972 (1953) :
“In their briefs and on oral argument counsel are requested to
discuss particularly the following questions insofar as they are
relevant to the respective cases:
1. What evidence is there that the Congress which submitted
and the State legislatures and conventions which ratified the
Fourteenth Amendment contemplated or did not contemplate,
understood or did not understand, that it would abolish segre
gation in public schools?”

We therefore believe it desirable—and necessary9—to set
forth at some length the historical circumstances surround
ing the enactment of the Fourteenth Amendment. For
while this history has been frequently analyzed, and is
often Delphic, it is squarely controlling here since the pre
cise question at issue in this case—the permissibility of
providing educational benefits to blacks but not whites—
was heatedly debated and self-consciously resolved by the
same Congress which approved the Fourteenth Amend
ment. In light of this contemporaneous evidence, set forth
in P art II, infra, the history of the Fourteenth Amendment
is neither ambiguous nor “inconclusive,” Brown v. Board of
Education, supra, 347 U.S. at 489.

I t is true, of course, that “ [t]ime works changes, brings
into existence new conditions and purposes, . . . [and] a
principle, to be vital, must he capable of Avider application
than the mischief which gave it birth,” Weems v. United
States, 217 U.S. 349, 373 (1910). While the clock cannot be
turned back to the 1860’s, the resolution of the debate con
cerning race-conscious educational remedies in the Thirty-
Ninth Congress is controlling today because the conditions
Avhich originally engendered these remedies—the “mis
chief” at which the Fourteenth Amendment Avas principally
aimed—are still present today. After a discussion of these
Reconstruction measures adopted by the same Congress
that enacted the Fourteenth Amendment, see P art I I infra,
we set forth the substantial and legitimate reasons peti
tioner adopted its special admission program. We first de
scribe the de jure segregation in California’s elementary
and secondary education system, see P art I I I infra, and

8 It cannot now be confidently asserted that “ [fjortunately, that
history [of the adoption of the Civil War Amendments] is fresh
within the memory of us all,” Slaughter-House Cases, 83 U.S. (16
Wall.) 36, 68 (1873)).

then discuss the medical needs and health manpower short
age among racial minorities in this country and the way in
which production of minority-race doctors serves to amelio
rate these problems, see P art 11(c) and IV infra,

As we have previously noted, see note 1 supra, “ [t]here
can be no doubt that . . . [this policy] may be regarded as
an enactment [intended] to enforce the Equal Protection
Clause.” Katzenbach v. Morgan, 384 U.S. 641, 652 (1966).
Moreover, petitioner brought to the solution of these per
ceived problems of discrimination and health care “a spe
cially informed . . . competence,” id. at 656 (footnote
omitted),10 and acted pursuant to formal legislative policy,
most recently declared in Assembly Concurrent Eesolution
Number 151 (1974), which mandated:

“That the Regents of the University of California, the
Trustees of the California State University, and Col
leges, and the Board of Governors of the California
Community Colleges . . . prepare a plan that will pro
vide for addressing and overcoming, by 1980, ethnic,
economic, and sexual underrepresentation in the make
up of the student bodies of institutions of public higher
education as compared to the general ethnic, economic,
and sexual composition of recent California high
school graduates.”

We submit that in the absence of any proven stigmatizing
motives and upon demonstration that this racially conscious
admissions policy (which earmarked 16% of the places in
first year medical school classes for minority groups con-

10 Of. Katzenbach v. Morgan,, supra, 384 U.S. at 653:
“It is not for us to review the congressional resolution of these

factors [which impelled Congress to enact the Voting Rights
Act of 1965]. It is enough that we be able to perceive a basis
upon which the Congress might resolve this conflict as it did.”

stituting approximately 16% of California’s population)11
advances substantial State interests, petitioner should be
allowed to decide whom it will train as medical doctors in
light of its perception of society’s needs.12 As this Court

11 No particular racial minority is specially favored by petition
er’s special admissions program, which is open to, inter alia, blacks,
Hispanie Americans, native Americans, and oriental Americans. In
1970, there were 17,761,000 whites, 1,400,000 blacks, 91,081 native
Americans, 522,270 oriental Americans, and 178,671 members of
other minority groups in California, with the latter four groups
constituting approximately 11% of the State’s population. B ureau
op th e Ce n s u s , S tatistical A bstract op t h e U nited S tates 1976,
at pp. 31, 32 (1976). The Bureau of the Census counts Hispanic
Americans in its “white” category, and this group comprised 5.6%
of California’s population in 1970, id. at 36, making a total “minor
ity” population in the State of about 16.6%.

12 We recognize that “community prejudices are not static, and
from time to time other differences from the community norm
[than race] may define other groups which need . . . [constitu
tional] protection,” Hernandez v. Texas, 347 TJ.S. 475, 478 (1954).
Over a hundred years ago, the Court stated that “ [w]e do not say
that no one else but the negro can share in this protection [of the
post-civil war amendments].” Slaughter-House Cases, 83 U.S. (16
Wall.) 36, 72 (1873). Should a federal court be confronted with
an arcane racial (or ethnic or religious) classification in a state
educational admissions policy, its first task would be to determine
whether this classification has the purpose or effect of stigmatizing
the classified group as inferior. “Whether such a group [in need
of constitutional protection] exists within a community is a ques
tion of fact.” Ibid. Invidious racial classifications are “constitu
tionally suspect,” Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (foot
note omitted), and subject “to the ‘most rigid scrutiny’ ” and justi
fication, McLaughlin v. Florida, 379 U.S. 184, 192 (1964). Such
classifications have been upheld by this Court only in light of
“ [pressing public necessity,” Korematsu v. United States, 323
U.S. 214, 216 (1944). Of eourse, even if not invidious or stigma
tizing, such classifications may nevertheless violate the Fourteenth
Amendment since the Equal Protection Clause “den[ies] to States
the power to legislate that different treatment be accorded to per
sons placed by a statute into different classes on the basis of cri
teria wholly unrelated to the objective of that statute.” Reed v.
Reed, 404 U.S. 71, 75-76 (1971). The classifications which a State
enforces “must be reasonable, not arbitrary, and must rest upon
some ground of difference having a fair and substantial relation to
the object of the legislation, so that all persons similarly circum
stanced shall be treated alike.” Royster Cuano Co v Yirainia 953
U.S. 412. 415 (1920).

has now wisely recognized, the Fourteenth Amendment did
not enact Mr. Herbert Spencer’s Social Statics.13 But
neither did it enact the Educational Testing Service’s
Medical College Admissions Tests. While the Constitution
may not have compelled adoption of the special admission
program, petitioner has voluntarily and in good faith
sought to remedy the lingering effects of racial discrimina
tion. “To use the Fourteenth Amendment as a sword
against such State power would stultify that Amendment.”
Railway Mail Association v. Corsi, 326 TJ.S. 88, 98 (1945)
(concurring opinion of Justice Frankfurter).14

II.

The Legislative History of the Fourteenth Amendment

The propriety of race-conscious remedies was a matter
squarely considered by the Congress which fashioned the
Fourteenth Amendment, and that Congress believed such
remedial programs not merely permissible but necessary.
From the closing days of the Civil W ar until the end of
civilian Reconstruction, Congress adopted a series of social
welfare laws expressly delineating the racial groups en
titled to participate in or benefit from each program. Con-

13 Lochner v. New York, 198 U.S. 45, 75 (1905) (dissenting opin
ion of Justice Holmes) ; Ferguson v. Skrupa, 372 U.S. 726, 728-733
(1963).

14 In Railway Mail Association v. Corsi, supra, the Court sus
tained the constitutionality of a New York “Civil Rights Law”,
326 U.S. at 89, which forbade any labor organization to deny equal
treatment to any of its members “by reason of race, color or creed,”
Hid. A labor union had attacked the Law as violative of the Due
Process and Equal Protection Clauses of the Fourteenth Amend
ment. The Court rejected this argument, noting that “ [a] judicial
determination that such legislation violated the Fourteenth Amend
ment would be a distortion of the policy manifested in that amend
ment which was adopted to prevent state legislation designed to
perpetuate discrimination on the basis of race or color.” 326 U.S.
at 93-94.

11
gress adopted these race-specific measures over the objec
tions of critics who opposed such special assistance for a
single racial group. The most far reaching of these pro
grams, the 1866 Freedmen’s Bureau Act, was enacted less
than a month after Congress approved the Fourteenth
Amendment, and there is substantial evidence that a major
reason Congress adopted the Amendment was to provide
a clear constitutional basis for such race-conscious rem
edies.

The range and diversity of these measures is striking.
The Bureau of Befugees, Freedmen and Abandoned Lands,
(popularly known as the Freedmen’s Bureau) was author
ized by Congress in 1866 to provide land and buildings and
spend designated funds for “the education of the freed
people,” 15 but could provide no such aid to refugees or
other whites. The same statute conveyed a number of dis
puted lands to “heads of families of the African races” and
authorized the sale of some thirty-eight thousand other
acres to black families who had earlier occupied them un
der authority of General Sherman.16 Congress in 1867
made special provision for disposing of claims for “pay,
bounty, prize-money, or other moneys due . . . colored sol
diers, sailors, or marines, or their legal representatives.” 17
I t awarded federal charters to organizations established to

1514 Stat., c.200 at 174, 176 (1866).
1614 Stat., c.200 at 174, 175 (1866). The statute referred simply

to “such persons and to such only as have acquired and are now
occupying lands under and agreeably to the provisions of General
Sherman’s special field order, dated at Savannah, Georgia, Janu
ary sixteenth, eighteeen hundred and sixty-five.” That order, as
Congress well knew, provided that the land in question in South
Carolina and Georgia was “reserved and set apart for the settle
ment of the negroes now made free by the acts of war and the
proclamation of the President of the United States,” II W. F lem
ing , D ocum entary H istory op R econstruction 350 (1906).

1715 Stat., Res. 25 at 26 (1867).

suppor [t] . . . aged or indigent and destitute colored women
and children,” 18 to serve as a bank for “persons heretofore
held in slavery in the United States, or their descen
dants,” 19 and “to educate and improve the moral and in
tellectual condition of . . . the colored youth of the nation” 20
(these youth were also provided assistance to them in the
form of funds21 and land grants).22 Express appropriations
were made for “the relief of freedmen or destitute colored
people in the District of Columbia,” 23 and for a hospital
for freedmen established in the District,24 No comparable
federal programs existed for—or were established—for
whites.25

1812 Stat., c.33 at 650 (1863).
1913 Stat,, c.92 at 511 (1865).
2012 Stat,, c.103 at 796 (1863).
2114 Stat, c.296, 317 (1866). Such assistance continued after the

end of Reconstruction.
2212 Stat., e.33 at 650 (1863). Such assistance continued after

the end of Reconstruction.
2315 Stat., Res. 4 at 20 (1867).
2iSee, e.g., 16 Stat. e.14, 8 (1869); 16 Stat,, c.114 at 506-507

(1871); 17 Stat, 366, 528 (1872). In years prior to these appro
priations the hospital was supported by the Freedmen’s Bureau.

25 Other programs, while open to all blacks, were also available
to a limited group of whites, the unionist refugees who had fled to
the North during the Civil War. These measures provided food,
medical assistance, clothing and transportation administered by the
Freedmen’s Bureau, 13 Stat. c.90 at 507-508 (1865) ; 14 Stat, c.200
at 174-175 (1866). Such white refugees were also entitled, along
with the freedmen, to up to 40 acres of land from among property
seized by the United States from confederate sympathizers. 13 Stat..
e.90 at 508-509 (1865) ; this 1865 program, however, was largely
emasculated when President Johnson directed the return of most of
the seized property to its original owners. See Report of the Com
missioner of the Bureau of Refugees, Freedmen and Abandoned
Lands, H.R. Exec. Doc. No. 11, 39th Cong. 1st Sess. 4-5 (1865);
II O. Howard, Autobiography 229, 233, 235 (1907); II J. Blaine,
Twenty Years in Congress 164 (1886); G. Bentley, A History

These racial distinctions were neither inadvertent nor
unopposed. A vocal minority in Congress, as well as Pres
ident Andrew Johnson, criticized such proposals as class
legislation discriminating against whites. A substantial
majority of the Congress, however, believed such special
treatment appropriate and necessary to remedy past mis
treatment of blacks.

We shall examine in detail the legislative history of
eight measures: the 1864 Freedmen’s Bureau bill, the 1865
Freedmen’s Bureau Act, the 1866 Freedmen’s Bureau Act,
the 1867 Colored Servicemen’s Claims Act, two 1867 relief
statutes, and two 1868 statutes extending the Freedmen’s
Bureau. The most important of these debates concerned
the 1866 Freedmen’s Bureau Act: it was here that the
arguments for and against special legislation for blacks
were most fully developed, and it was at this time that
the Fourteenth Amendment was considered and approved
by Congress.

A. Race-Conscious L egislation o f the R econstruction Era

( 1 ) T h e 1864 F reed m en ’s B u reau Bill

The first major legislation specifically designed to aid
blacks26 called for the creation of a new agency, the Bureau
of Freedmen’s Affairs, to provide special assistance and
protection.27 The beneficiaries of this plan were described

of t h e F reedm en’s B ureau 89-96 (1955). No limitations were
placed, however, on the Southern Public Lands Act of 1866 or on
Federal food provided in the south and southwest during the fam
ine of 1867; these were available, respectively, with “no distinction
or discrimination . . . on account of race or color,” 14 Stat., c.127
at 66, 67 (1866), and “to any all classes of destitute or helpless
persons,” 15 Stat. Res. 28, 28 (1867).

26 Cong. Globe, 38th Cong., 1st Sess. 19 (1864).
27 The Bureau’s responsibilities were to include overseeing the

enforcement of all laws “in anyway concerning freedmen aiding

in the House bill as “persons of African descent,” 28 and
in the Senate version as “such persons as have once been
slaves.” 29 The Senate rejected a draft that would have
limited coverage to “such persons as have become free
since the beginning of the present war,” 30 the Senate spon
sor arguing that blacks might require its “aid and protec
tion” even though freed decades before the war.31

A variety of arguments were advanced in opposition to
these bills, with the Democrats contending that such social
legislation was traditionally the exclusive concerns of the
states and should be left to them.32 The bill was also op
posed because it applied only to blacks, the argument be
ing framed in several different ways. A minority of the
House Select Committee on Emancipation objected—in lan
guage much like that used in today’s debates about affirma
tive action—to whites being taxed to support such assis
tance for blacks.

“A proposition to establish a bureau of Irishmen’s af
fairs, a bureau of Dutchmen’s affairs, or one for the
aifairs of those of Caucasian descent generally, who
are incapable of properly managing or taking care of
their own interests by reason of a neglected or defi-

tliem in fashioning and enforcing their labor contracts and leases,
participating in litigation “as next friends of the freedmen,” and
renting to them such abandoned confederate real estate as came
into the possession of the United States. The Senate version of the
bill is set out at Cong . Globe, 38th Cong. 1st Sess., 2798 (1864).

28 Id. at 2801.
29 Id. at 2798.
30 This was the language proposed by the Senate committee. Id.

at p. 2798. I t was amended on the floor at the urging of the Senate
sponsor, Senator Sumner. Id. at 2800-01.

31 Id. at 2971, 2973. The bill applied, however, only to blacks in
“the rebel States.”

32 Id. at 760; Cong . Globe, App., a t 54.

cient education, would, in the opinion of your com
mittee, be looked upon as the vagary of a diseased
brain. Why the freedmen of African descent should
become these marked objects of special legislation, to
the detriment of the unfortunate whites, your commit
tee fail to comprehend . . . . The propriety of incur
ring an expenditure of money for the sole benefit of
the freedmen, and laying a tax upon the labor of the
poor and, perhaps, less favored white men to defray
it, is very questionable . . . . [I]f [the Bureau] is to
be converted into a grand almshouse department,
whereby the labor and property of the white popula
tion is to be taxed to support the pauper labor of the
freedmen . . . its operations cannot be too closely
scrutinized.” 33

33 H. R. Rep. No. 2, 38th Cong., 1st Sess., at 2, 4 (1864). The
minority criticized the provisions on abandoned lands because
whites were to be excluded from them.

“Your committee cannot conceive of any reason why this vast
domain, paid for by the blood of white men, should be set
apart for the sole benefit of the freedmen of African descent,
to the exclusion of all others.”

Id. at 3. There seems to have been some uncertainty on the floor
as to whether the bill in fact prohibited leases to whites. See Cong .
Globe, 38th Cong., 1st Sess., 775 (1864), Congressman Knapp,
one of the Committee minority, later expanded this objection be
yond the lands provisions.

“If there is any duty on the part of the Government to support
these persons who have been rendered destitute by the opera
tion of this war, I ask why not support all the bruised and
maimed men, the thousands and tens of thousands of widows,
and the still larger number of orphans left, without the pro
tection of a father . . . . If this bill is to put upon the ground
of charity, I ask that charity shall begin at home and . . . I
shall claim my right to decide who shall become the recipients
of so magnificent a provision, and with every sympathy of
my nature in favor of those of my own race.”

Cong . Globe, 38th Cong., 1st Sess, App., 54 (1864). As the hypo
thetical tone of this statement suggests, Knapp was not squarely
advocating that whites be afforded the benefits of the bill, but only

In the Senate, opponents did not focns on the differing
treatment of blacks and whites under this particular bill,
but criticized it as part of a general Republican policy of
preferential treatment for blacks. Senator Richardson
complained:

“ [T]he idea now sought to be carried out and con
summated by this bill, to make war for, to feed, to
clothe, to protect and care for the negro, to give him
advantages that the white race do not receive or claim,
is one that has characterized the legislation of Con
gress and all the acts of the President and his Cabinet
for the past three years.” 34

Proponents of the bill emphasized that it was needed
to overcome the effect of past mistreatment of blacks,36
and it passed the House on March 1, 1864,36 and, in a
different form, the Senate on June 28, 1864.37 The two
Houses could not, however, iron out their differences,38

that they be treated the same as blacks. Representative Knapp
also urged as a reason for opposing the bill that it might lead to
comprehensive federal social legislation for both whites and blacks.
Id. at 761; see also id. at 763 (remarks of Rep. Brooks).

34 Id. at 2801. Similar views were expressed by Senators Powell,
Saulsbury and Hicks. Id. at 2787, 2933, 2966, 3366.

35 Id. at 572, 572-573, 774, 2799.
36 Id. at 895. The vote was 69 to 67.
37 Id. at 3350. The vote was 21 to 9.
38 The substantive provisions of the two bills were largely identi

cal, but they differed as to the department in which the Bureau
was to be located; the House wished to place it in the Department
of War, while the Senate preferred the Department of the Treas
ury. See G. B en t l e y , A H istory of th e F reedm en’s B ureau SO
TS (1955). This difference ultimately proved fatal to the bill. The
Conference Committee, unable to agree whether to place the Bu
reau in the Departments of War or Treasury Department, reported
to the next session a bill establishing instead an independent “De
partment of Freedmen and Abandoned Lands.” Cong . Globe, op.

and as the Civil W ar neared its end, new legislation was
introduced.

( 2 ) T h e 1865 F reed m en ’s B u re a u Act

After the extensive debates of 1864 and the failure to
agree on a compromise bill, the House passed on Feb
ruary 18, 1865, a simplified bill introduced by Congress
man Schenck39 establishing a new Bureau of Refugees,
Freedmen and Abandoned Lands to be situated within
the W ar Department40 and to continue operation until one
year after the end of hostilities. With very little debate,
a similar bill passed the Senate, a conference bill was ap
proved by both Houses, and President Lincoln signed the
measure on March 3, 1865.41

The 1865 Act contained three substantive provisions.
First, the Secretary of W ar was authorized to provide

cit., at 563-564, 767. The Conference bill was widely criticized as
being a new bill altogether, rather than merely a compromise of
the House and Senate versions. Id. at 689 (remarks of Rep. Wash-
burne), 691 (remarks of Rep. Schenck, 785 (remarks of Sen.
Davis), 958 (remarks of Sen. Hendricks and Sen Grimes). Despite
this objection, the House agreed to the conference bill by a 64-62
vote. Id. at 694. The Senate, however, which had earlier approved
the bill by a margin of 21-9, voted on February 22, 1865, to reject
the conference bill by a margin of 24-14 and asked for another con
ference. Id. at 990. Since by this point the war was virtually over,
and the need for some aid provision particularly urgent, Congress
turned from the complex bill it had been considering for over a
year to a similar measure for a Bureau of more limited authority
whose location was to prove less controversial.

39 Id. at 908. During the debates on the 1864 bill, Congressman
Schenck and others urged that provision be made for white refu
gees because they faced many of the problems of poverty and local
hostility, which affected freedmen. Id. at 691, 960, 962, 984, 985.
Congressman Eliot, the sponsor of the 1864 bill, stated that he had
no objection to including refugees if such a need were demon
strated. Id. at 693.

40 Id. at 1182, 4037; S. Rep. No. 137, 38th Cong., 2d Sess. (1865).
41 Act of Mar. 3, 1865, c.90, 13 Stat. 507-508.

“provisions, clothing and fuel” for “destitute and suffer
ing refugees and freedmen.” 42 Second, the Commissioner
of the Bureau was authorized to lease, and ultimately sell,
up to forty acres of abandoned land to any refugee or
freedman. Third, the Bureau was invested with “the con
trol of all subjects relating to refugees or freedmen.”
Although the statute did not detail many of the powers
enumerated in the 1864 bill for the aid of freedmen, this
general language of its three substantive provisions was
broad enough to authorize all such activities. In its actual
operations, the Bureau undertook all the remedial activity
contemplated by the 1864 bill for the assistance of blacks,
and provided most of that assistance to blacks alone, see
pp. 19-42 infra.

(3 ) T h e 1866 F reed m en ’e B u reau Act

The Freedmen’s Bureau Act ultimately passed by the
Thirty-Ninth Congress in 1866 was one of the most com
prehensive of the race conscious remedial measures en
acted during the Reconstruction period. The chronological
sequence of events during this year is complicated, but
important, and a brief perspective is useful before con
sidering in detail the various legislative debates. After
lengthy discussion, Congress passed a Freedmen’s Bureau
bill in February, 1866, S. 60, but this bill was vetoed im
mediately by President Johnson, and Congress failed to
override the veto. The Civil Rights Act of 1866 was also
passed b}r Congress in early 1866, and was vetoed, but
Congress overrode this veto and enacted the measure in

42 The law was limited to freedmen or refugees “from the rebel
States.’- Historians of this period have not regarded the inclusion
of the white refugees provisions in the bill a significant factor in
its enactment. See, e.g., 6 . B en tl ey , A H istory op th e F reed
m e n ’s B ureau 47-49 (1 9 5 5 ) ; P . P ierce, T h e F reedm en’s B ureau
42-45 (1 9 0 4 ).

April, 1866.43 During the spring, the Fourteenth Amend
ment was formulated, passed both Houses, and was sub
mitted by the Secretary of State on June 16, 1866, to the
several States for ratification. While the Fourteenth
Amendment was being debated in Congress, a second
Freedmen’s bill was prepared, and a conference bill was
approved by both Houses in July. President Johnson
again vetoed the bill, but this time, the veto was over
ridden, and the Freedmen’s Act of 1866 was enacted on

* July 16, 1866.44

The consideration in 1866 of new legislation to protect
the freedmen was undertaken after General Oliver Howard,
Commissioner of the Freedmen’s Bureau, submitted a re
port46 in December, 1865, describing the Bureau’s activities
under the 1865 statute. The report revealed that most of
the Bureau’s programs in actual operation applied only to
freedmen. Among the programs where only freedmen were
among the named or intended beneficiaries were educa
tion,46 the regulation of labor,47 Bureau farms, land dis
tribution and adjustment of real estate disputes,48 super
vision of the civil and criminal justice systems through
the freedmen’s courts,49 registration of marriages,60 and
aid to orphans.61 General Howard’s recommendations to

43 Act of April 9, 1866, 14 Stat., c. 31, at 27.
44 Act of July 16, 1866, 14 Stat., c. 200, at 173-177.
45 H.R. Exec. Doc. No. 11, 39th Cong., 1st Sess. (1865).
46 Id. at 2, 3, 12, 13.
47 Id. at 2, 12.
48 Id. at 4, 7-12.
49 Id. at 22.
60 Id. at 23.
51 Ibid. Both freedmen and refugees received medical assistance,

but not in equal numbers; as of October 30, 1865, there were 27,819

20
Congress, which stressed particularly the importance of
education,52 dealt almost exclusively with the needs of
freedmen.63

After consulting at length with General Howard,64
Senator Lyman Trumbull introduced a new Freedmen’s
Bureau bill, S. 60,65 as a companion to the Civil Rights
Act of 1866. S. 60 proposed to continue the operations of

freedmen under treatment, but only 238 refugees. Id. at 20-21.
Freedmen received about three-quarters of all rations, and an un
stated share of clothing and fuel distributed. Id. at 13, 16. Only
in the area of transportation were the numbers of freedmen and
refugees indeed approximately equal, but this represented less than
1% of the Bureau’s budget and was a function which the report
described as “nearly ceased.” Id. at 14, 17. The regulations issued
by Assistant Commissioners in the various states paralleled this
distinction; those dealing with education, contracts, labor condi
tions, orphans or courts referred almost exclusively to freedmen,
whereas regulations pertaining to rations, medicine and transpor
tation referred to both Freedmen and refugees. See H.R. E xec .
Doc. No. 70, 39th Cong., 1st Sess. (1865).

52 “Education is absolutely essential to the freedmen to fit them
for their new duties and responsibilities . . . . Yet I believe the
majority of the white people to be utterly opposed to educating the
negroes. The opposition is so great that the teachers, though they
may be the purest of Christian people, are nevertheless visited, pub
licly and privately, with undisguised marks of odium.” H.R. E xec .
Doc. No. 11, 39th Cong., 1st Sess. 33 (1866). Howard urged that
sites and buildings be provided for schools, and that they “not be
exclusively for freedmen; for any aid given to education the nu
merous poor white children of the south will be most important to
the object our government has in view; I mean the harmony, the
elevation, and the prosperity of our people. Id. at 34. Congress
did not accept this suggestion. The first bill, S. 60, was limited to
white children who were refugees, and the law ultimately adopted
provided for educational assistance only to freedmen. See note 149
infra.

53 Id. at 32-35.
54II O. H oward, A utobiography 280-81 (1907).
65 The bill in the form ultimately adopted by Congress in Feb

ruary but vetoed by the President, is set out in E. McP h erson ,
T h e P olitical H istory of t h e U nited S tates of A merica D uring
t h e P eriod of R econstruction 72-74 (1871).

21
the Bureau “until otherwise provided by law,” and to
extend its jurisdiction to refugees and freedmen “in all
parts of the United States.” 56

The 1866 bill was opposed on g’rounds similar to those
advanced against the 1865 proposal, but the arguments
concerning special treatment for blacks were more fully
developed. Although S. 60 made few significant racial
distinctions on its face, opponents and supporters generally
regarded it particularly in view of General Howard’s
report as largely if not exclusively for the assistance of
freedmen. Congressman Taylor, opposing the bill, con
tended there were no longer any refugees for the Bureau
to assist:

“The Freedmen’s Bureau was established ostensibly
for the aid and protection of refugees and freedmen.
At the time the bureau was created there was a large
class of refugees, or persons, both white and black,
who were very properly denominated refugees; persons
who had escaped and broke through the enemy’s lines
into our own for safety. But now, since the war has
ceased, the term ‘refugees’ ceases to describe any
class of persons among us. That class of persons
which the word refugees was descriptive of have now

66 An extensive geographic organization was contemplated, with
agents, where necessary in every county. The purchase of school
buildings for refugees and freedmen -was directed, subject, how
ever, to an express appropriation by Congress. The President was
authorized to reserve for freedmen and refugees up to three million
acres of “good” public land, to be rented and ultimately sold in
parcels not exceeding forty acres. Blacks occupying certain lands
south of Savannah were assured possession for another three years
and the Commissioner was authorized to provide them with other
property thereafter. Discrimination against freedmen or refugees
in the administration of the criminal or civil law was prohibited
in terms similar to the 1866 Civil Rights Act, except that viola
tions were to be tried before agents of the Bureau under rules
and regulations set by the War Department.

returned to their homes; and the great change wrought
by the termination of the war in the circumstances
and condition of that class of persons leaves the name
of refugee without a meaning, as in its original ap
plication, therefore obsolete and inapplicable in de
scribing any class of persons now having a habitation
within the United States.

Now, according to my understanding of the mean
ing of the name refugee as it is used in the bill creat
ing the bureau and the bill now before us, the present
proposed legislation is solely and entirely for the
freedmen, and to the exclusion of all other per
sons. . . .” 67

Representative Chanler reviewed the Bureau’s report in
detail to demonstrate the paucity of assistance to refugees:

“This present bill is to secure the protection of the
Government to the blacks exclusively, notwithstanding
the apparent liberality of the measure to all colors
and classes . . . General Howard’s report establishes
the fact that the present bureau gave most of its aid
exclusively to the negro freedmen.” 68

After quoting excerpts from the report, Chanler concluded:

“Prom these extracts it will plainly be seen that black
freedmen and not white refugees were the special care
of the bureau.

The white refugees were few in number and received
no land from the Government. The period during

67 Cong . Globe, 39th Cong., 1st Sess. 544 (1866) (the Globe for
this session w ill hereinafter be cited Gl o b e ; its Appendix, Globe
App.). See also Globe 634, 635 (remarks of Representative Ritter).

68 Globe, App. 78.

which they received aid by transportation ended with
the date of the report, or was rapidly doing so. The
‘supervisors’ appointed were not instructed to aid the
poor whites of the South, of whose destitute condition
we hear so much. . . .” 59

Congressman Eliot, the House sponsor of S. 60, referred
only to freedmen in describing the bill,60 and only men
tioned the coverage of refugees at the instance of another
supporter.61 Proponents of the bill did not seriously con
test that its scope was as suggested by Taylor and Chanler,
but grounded their arguments on the special needs of
blacks.

Most opponents of the bill complained, in the words of
Senator Wiley, that it made “a distinction on account of
color between the two races.” 62 Senator McDougall, who
believed in the natural superiority of members of the white
race, objected:

“This bill undertakes to make the negro in some re
spects their superior, as I have said, and gives them
favors that the poor white boy in the North cannot get;
gives them favors which were never offered to the
Indian, whom I hold to be a nobler and far superior
race. I t makes us their voluntary guardians to see,
in the first place, that they have the opportunity to
work, and then their guardians to see that they get
paid, and then that they are taken care of, and then
we are to take care of them ourselves. I never had

69 Globe, App., p, 81.
60 Globe 514-15.
61 Id. at 516.
62 Id. at 397; see also id. at 342 (remarks of Sen. Cowans), 544

(remarks of Rep. Taylor), App. 82 (remarks of Rep. Chanler).

anybody to do that for me, even when I was quite a
young lad; and from that time until now it has been
my office to protect myself; to earn what I could for
my own support. This bill confers on the negro race
favors that have not been extended to many men on
this floor within my personal knowledge.” 63

Congressmen Marshall and R itter contended the bill would
result in two separate governments, “one government for
one race and another for another.” 64

Differing sections of the bill were singled out by op
ponents for particular criticism. Senator Saulsbury ob
jected in particular to the lands provision:

“Another section requires that there shall be three
million acres of land assigned in certain States in
the South for those freedmen; and, mark you, the
negro is a great favorite in the legislation of Congress,
and the bill provides that it shall be ‘good land.’ No
land is to be provided for the poor white men of this
country, not even poor land ; but when it comes to the

63 Id. at 401.
64 Id. at 627 (remarks of Rep. Marshall), 634 (remarks of Rep.

Ritter). Several members of Congress renewed the objection ad
vanced without success in 1865 that the bill would result in whites
being taxed to assist blacks; Representative Ritter asked, “Will
the white people who have to support the government ever get
done paying taxes to support the negroes?” Id. at 635; see also id.
at 362 (remarks of Sen. Saulsbury); 634 (remarks of Rep. R itte r);
Globe, App. 83 (remarks of Rep. Chanler). Others argued that
the bill would actually harm the Negro, either by increasing his
dependence, Globe 401 (remarks of Sen. McDougall), or by pro
voking white resentment. Globe, App. 69-70 (remarks of Rep.
Rousseau). Several speakers thought the measure a device “to
practice injustice and oppression upon the white people of the
late slave-holding states for the benefit of the free negroes.” Globe
402 (remarks of Sen. Davis) ; see also id. at 251 (remarks of Sen.
Moccill); 415 (remarks of Sen. Davis); Globe, App. 78 (remarks
of Rep. Chanler).

negro race three million acres must be set apart, and
it must be ‘good land’ at that.” 66

Senator Guthrie complained that the litigation authorized
before Bureau agents was solely for the protection of the
f reedmen:

“All the suits to be instituted under this bill are to be
those in which justice shall be administered in favor
of the blacks; and there is not a solitary provision in
it relative to suits in cases where the blacks do wrong
to the whites.” 66

Congressman Rousseau cited the example of several schools
in Charleston established apparently with the assistance
of the Bureau, for the education of colored children, while
federal authorities forbade the opening of public schools
on an all-white basis:

“Mr. Speaker, when I was a boy, and in common with
all other Kentucky boys was brought in company with
negroes, we used to talk, as to any project, about hav
ing ‘a white man’s chance.’ I t seems to me now that a
man may be very happy if he can get ‘a negro’s chance.’
Here are four school-houses taken possession of, and
unless they mix up white children with black, the white
children can have no chance in these schools for in
struction. And so it is wherever this Freedmen’s Bu
reau operates.” 67

66 Globe 362. Senator Hendricks was less concerned about the
reservation of such lands in Southern states, but found it “very
objectionable” to reserve such property for blacks in the mid-west
where there was “likely to be a great demand for homesteads by
white settlers.” Id. at 372. See also, id. at 373 (remarks of Sen.
Johnson); 635 (remarks of Rep. Ritter) ; Globe, App. 84 (remarks
of Rep. Chanler).

66 Id. at 336. See also id. at 342 (remarks of Sen. Cowan).
67 Globe, App. 71.

Senator Johnson urged:

“If there is an authority in the Constitution to provide
for the black citizen, it cannot be because he is black;
it must be because he is a citizen; and that reason be
ing equally applicable to the white man as to the black
man, it would follow that we have the authority to
clothe and educate and provide for all citizens of the
United States who may need education and providing
for.” 68

Opponents of S.60 suggested a variety of white groups
which they claimed were equally entitled to assistance.
Senator Hendricks referred to the plight of white south
erners generally:

“It is all very well for us to have sympathy for the
poor and the unfortunate, but both sides call for our
sympathy in the South. The master, who, by his
wickedness and folly, has involved himself in the
troubles that now beset him, has returned, abandoning
his rebellion, and has bent down upon his humbled
knees and asked the forgiveness of the Government,
and to be restored again as a citizen.” 69

Senator Stewart cited the needs of the families of fallen
Union soldiers:

“I have also sympathy for the widows and orphans of
the North that have been bereaved by this terrible con
test, who are forgotten in our efforts for the negro. I
have sympathy for the poor negro who is left in a
destitute and helpless condition. I am anxious to enter
upon any practical legislation that shall help all classes

68 Globe 372.

69 I d . a t 319.

and all sufferers, without regard to color—the white
as well as the black” 70

Congressman Marshall pressed for aid instead to loyal
white southerners whose property had been seized or used
by the Union army:

“There are others who have higher claims to our con
sideration. In Tennessee and other southern Stales
thousands of loyal men left their homes to battle for
the flag of the Union; and in many cases their entire
property was seized in their absence and appropriated
to the use and support of the Federal armies, and their
families reduced to poverty and want. . . . And they
now come here to ask the Government to pay only for
the property actually taken for the use of the Govern
ment. The claim of these men to such compensation is a
just and holy one. This is not denied. But I do not hear
enactment of a law to pay these claims. You have, on
the contrary, passed a resolution that such claims
shall not be considered, because, as you allege, the
Government is not now able to pay these debts. . . .
No peans are sung in praise of these wronged de
fenders of their country. They happen, unfortunately,
to be white men and white soldiers, and they may
starve and die from want, and no wail will be raised in
their behalf; but when money is wanted to feed and
educate the negro I do not hear any complaints of the
hardness of the times or of the scarcity of money.” 71

Senator Davis, while opposing any such federal welfare
program, thought southern white paupers equally entitled
to assistance:

70 I d . a t 297.

71 I d . a t 629.

“ [T]he free negroes in South Carolina and in all the
southern States constitute a portion of their popula
tion. I t is a principle of our system of government,
and the Senator from Illinois cannot overturn or shake
it, that every State is bound to provide for its own
paupers, whether they he black or white. . . . The peo
ple of Kentucky would be gratified if the Congress
of the United States could constitutionally take off
them this burden. . . . If there is an obligation or a
duty or a power to take care of the negro paupers,
there is, I suppose, an equal obligation to take care
of the white paupers of the different states.” 72

Senator McDougall saw no reason to treat freedmen better
than the “ [t]housands of white boys in the North . . . the
poor boys of our own race and people.” 73

Supporters of the bill defended it by stressing the spe
cial needs of blacks. Senator Fessenden, for example,
stated :

“A large body of men, women, and children, millions
in number, who had received no education, who had
been laboring from generation to generation for their
white owners and masters, able to own nothing, to
accomplish nothing, are thrown, without protection,
without aid, upon the charities of the world, in com
munities hostile to them.” 74

72 Id. at 370.
73 Id. at 363.
74 Id. at 365. Congressman Donnelly urged:

“We have liberated four million slaves in the South. It is pro
posed by some that we stop right there and do nothing more.
Such a course would be a cruel mockery. These men are with
out education, and morally and intellectually degraded by
centuries of bondage.”

Id. at 588; see also Globe, App. 75 (remarks of Rep. Phelps.)
Assistance to this disadvantaged minority was argued to be in

Congressman Moulton distinguished Bureau aid to upgrade
blacks from unfair discrimination:

“The object of the bill is to protect the colored man.
The pro-slavery party on the other side of the House
from the foundation of the Government up to the
present time have done everything they could against
ameliorating the condition of the colored men. . . . One
object of the bill is to ameliorate the condition of the
colored man. . . . The gentleman has made another
objection to this bill. . . . He says the bill provides
one law for one class of men, and another for another
class. The very object of the bill is to break down the
discrimination between whites and blacks. . . . There
fore I repeat that the true object of this bill is the
amelioration of the condition of the colored people.” 75

Congressman Phelps urged that the bill properly gave spe
cial assistance to blacks because they lacked the political in
fluence of whites to advance their own interests:

“The very discrimination it makes between ‘destitute
and suffering’ negroes and destitute and suffering

the best interest of the country as a whole. Congressman Hubbard
insisted:

“They ought not to be left to perish by the wayside in poverty
and starvation when the country so much needs their work.
I t is not their crime nor their fault that they are so miserable.
Prom the beginning to the present time they have been robbed
of their wages, to say nothing of the scourgings they have
received. I think that the nation will be a great gainer by
encouraging the policy of the Freedmen’s Bureau, in the cul
tivation of its wild lands, in the increased wealth which in
dustry brings and in the restoration of law and order in the
insurgent States.”

Id. at 630. Senator Donnelly urged that with such assistance the
negro “becomes perforce a property-holder and a law-maker, and
he is interested with you in preserving the peace of the country.”
Id. at 589.

76 Id. at 631-32.

white paupers, proceeds upon the distinction that, in
the omitted case, civil rights and immunities are al
ready sufficiently protected by the possession of politi
cal power, the absence of which in the case provided
for necessitates governmental protection.” 76

Despite some expressed doubts as to the bill’s constitu
tionality,77 Congress approved this legislation by sizeable

76 Globe, App. 75. Senator Fessenden responded to the com
plaint that whites would be taxed to aid blacks by arguing that the
South had brought that upon itself by commencing the war. Globe
366. Particular emphasis was placed on the fact that the bill was_in
tended and formed to assist blacks to better their own position,
rather than merely providing relief. Senator Trumbull, the bill’s
author and Senate sponsor, explained that such legislation was
appropriate

“to educate, improve, enlighten, and Christianize the negro; to
make him an independent man; to teach him to think and to
reason; to improve that principle which the great Author of
all has implanted and every human breast . . . .”

Id. at 322. Trumbull urged that the
“cheapest way by which we can save this race from starvation

and destruction is to educate them. They will then soon be
come self-sustaining. The report of the Freedmen’s Bureau
shows that today more than seventy thousand black children
are being taught in the schools which have been established
in the South. We shall not long have to support any of these
blacks out of the public Treasury if we educate and furnish
them land upon which they can make a living for themselves.”

Ibid. Congressman Donnelly similarly emphasized the importance
of education to both the blacks and “the safety of the nation.”
Id. at 590.

77 As in 1865, Congress was divided as to whether it had con
stitutional authority to adopt protective legislation of this sort.
Proponents of the bill relied, inter alia, on the Thirteenth Amend
ment and the analogy of aid to Indians. Referring to the section
two of Amendment Senator Trumbull urged, “I have no doubt
that under this provision of the Constitution we may destroy all
these discriminations in civil rights against the black man; and if
we cannot, our constitutional amendment amounts to nothing. Id.
at 322; see also id. at 366 (remarks of Sen. Fessenden); 393 (re-

majorities. President Johnson, who had been expected to
sign the Freedman’s Bureau bill, vetoed it instead on Feb
ruary 19, 1866.78 Among other objections, the President
saw both the adoption of social welfare programs by the
federal government and the selection of one group for spe
cial treatment as unprecedented. Congress, he urged,

“has never founded schools for any class of our own
people, not even for the orphans of those who have
fallen in the defense of the Union, but has left the
care of education to the much more competent and
efficient control of the States, of communities, or pri
vate associations, and of individuals. I t has never
deemed itself authorized to expend the public money
for the rent or purchase of homes for the thousands,
not to say millions, of the white race who are honestly
toiling from day to day for their subsistence. A sys
tem for the support of indigent persons in the United
States was never contemplated by the authors of the

marks of Senator McDougall); 623 (remarks of Bep. Kerr) ; 631
(remarks of Kep. Moulton). Congressman Moulton asserted:

“I think the provisions of this bill are in accordance with the
acts of the Government in reference to similar subjects. . . .
I may allude to the same practice in regard to the Indian
tribes. Only a few days ago a bill was introduced into this
House by which we appropriated half a million dollars of
money for some half-starved Indians.”

Id. at 631; see also id. at 319 (remarks of Sen. Trumbull); 323
(remarks of Sen. Fessenden); 363 (remarks of Sen. Saulsbury).
A substantial majority of both houses concluded that such assis
tance to blacks was both authorized and necessary. The bill passed
the Senate on January 25, 1866, by a vote of 37 to 10, and was
approved by the House on February 6, 1866, by a vote of 137 to 33.
Id. at 421, 688.

78 His lengthy veto message raised a variety of objections to
the legislation, including doubts as to its necessity, fear of creating
a permanent institution, and a desire that such problems as might
exist be solved instead by the States. V III M essages and P apers
of t h e P residents, 3596-3603 (1 9 1 4 ).

Constitution; nor can any good reason be advanced
why, as a permanent establishment, it should be
founded for one class or color of one people more than
another.” 79

The Senate sought to override the veto the next day.
Senator Davis argued strongly that the legislation was
intended to elevate blacks to a position of superiority over
whites:

“ [Wjhile holding out to the negro the magic lure of
liberty and homes and largesses at the cost of the white
people of the United States, the design is to re-enslave
the freedmen and to reduce the white race of the
southern States to a slavery even lower than that of
the blacks.” 80

The broad powers of the Bureau, he urged,

“will enable it to depress the whites, to favor and hold
up the blacks, to flatter the vanity and excite the in
solence of the latter, to mortify and irrita te the former,
and perpetuate between them enmity and strife.” 81

Senator Trumbull responded to the arguments in the veto
message paragraph by paragraph,82 but although the bill

79 Id. at 3599. He urged that, if federal protection was to be
afforded blacks, it be limited to such relief as might be provided
by the federal courts. Id. at 3600, 3603.

80 Globe 935.
81 Hid.
82 In reply to the President’s contention that Congress had not

in the past enacted class legislation, Senator Trumbull urged:
“The answer to that is th is: we never before were in such a
state as now; . . . never before in the history of this Govern
ment have nearly four million people been emancipated from
the most abject and degrading slavery ever imposed on human
beings; never before has the occasion arisen when it was neces-

had earlier passed with better than a two-thirds majority,
several supporters unexpectedly switched their positions
and the vote in favor of the bill, 30 to 18,83 was insuffi
cient to override the veto.

This veto precipitated a final break with Congressional
Republicans.84 On March 27, 1866, the President vetoed
the Civil Rights Bill of 1866 on the ground, inter alia, that
it provided blacks with unprecedented and unwarranted
special treatment:

“In all our history, in all our experience as a people
living under Federal and State law, no such system
as that contemplated by the details of this bill has
ever before been proposed or adopted. They establish
for the security of the colored race safeguards which
go infinitely beyond any that the General Government

sary to provide for such large numbers of people thrown upon
the bounty of the Government, unprotected and unprovided
for. But, sir, when the necessity did exist the Government has
acted. We have voted hundreds of thousands and millions of
dollars, and are doing it from year to year, to take care of
and provide for the destitute and suffering Indians. We ap
propriated, years ago, hundreds of thousands of dollars to
take care and feed the savage African who was landed upon
our coast by slavers . . . And yet, sir, can we not provide for
those among us who have been held in bondage all their lives,
who have never been permitted to earn one dollar for them
selves, who, by the great constitutional amendment declaring
freedom throughout the land, have been discharged from bond
age to their masters who had hitherto provided for their neces
sities in consideration of their services? Can we not provide
for these destitute persons of our own land on the same princi
ple that we provide for the Indians, that we provide for the
savage African?”

Id, at 939. Senator Trumbull contended that the Thirteenth Amend
ment afforded ample constitutional justification for the bill. Id. at
941-942.

83 Id. at 943.
84 J. M cP h erson , t h e S truggle for E quality 347-349 (1964)).

has ever provided for the white race. In fact, the
distinction of race and color is by the bill made to
operate in favor of the colored and against the white
race.” 85

He objected in particular that the automatic citizenship
conferred upon blacks entailed “discrimination against
large numbers of intelligent, worthy, and patriotic for
eigners” who were still required to meet the statutory
standards for naturalization86 and that the bill required
federal courts, “which sit only in one place for white
citizens”, to move to any part of their district at the direc
tion of the President “to hear civil rights cases.” 87 On
April 9,1866, Congress passed the Civil Rights Bill over the
President’s veto.88

Emboldened by the success of the Civil Rights bill, Con
gress decided to try again to enact a Freedmen’s Bureau
bill, and on May 22, 1866, a new bill, H.R. 613, was reported
by the House Committee on Freedmen.89 The new bill
eliminated two provisions which had provoked the most
criticism of S.60: the Bureau was extended for only two
years, rather than indefinitely, and no express provision
was made for appointment of agents for every county.90
In addition, the reservation of a million or more acres of

85 V III Messages and P apers op t h e P residents, op. cit., 3610-
3611.

86 Id. at 3604-3605.
87 Id. at 3610.
88 Act of April 9, 1866, 14 Stat., c. 31, 27. The provisions of the

1866 Civil Rights Act are now incorporated in 42 U.S.C. §§ 1981
and 1982.

89 Globe 2743. The Senate bill was reported out of committee on
June 11, 1866. Id. at 3071.

00 Mr. Eliot explained these modifications on the floor of the
house. Id. at 2772-2773.

federal public lands for refugees and freedmen was deleted
as unnecessary because of the adoption of the Southern
Homestead Act,81 which opened up federal lands in five
southern States for settlement.

The new bill, however, distinguished between freedmen
and refugees in a number of ways not found in the vetoed
proposal. While section one of S. 60 had extended the old
statute to “refugees and freedmen in all parts of the United
States,” section 1 of the new bill extended it to

“all loyal refugees and freedmen, so far as the same
shall be necessary to enable them as speedily as prac
ticable to become self-supporting citizens of the United
States, and to aid them in making the freedom con
ferred by proclamation of the commander-in-chief, by
emancipation under the laws of States, and by con
stitutional amendment, available to them and beneficial
to the Republic.” Ma

Although the word “refugees” was included in this section
of H.R. 613, the purposes of effectuating the recently con
ferred “freedom” applied only to blacks. Section 6 of S. 60
had authorized the erection of schools “for refugees and

91 C. 127, 14 Stat. 66 (1866). Freedmen enjoyed an indirect
though significant priority under the Act over most whites. For
six months after the bill went into effect the public lands were not
available to any person who had “borne arms against the United
States, or given aid and comfort to its enemies.” 14 Stat., c. 127 at
67 (1866). This prohibition excluded a large proportion of south
ern whites. “Oliver Howard urged his assistant commissioners to
take immediate advantage of this restrictive proviso, to present in
formation about the opportunity it offered ‘in the strongest man
ner’, and to make every effort to secure homes for the Negroes
before the ‘rebels’ could take up the lands. ‘Bo all you can,’ he
emphasized.” G. B e n tl ey , A H istory of t h e F reedm en’s Bu
reau , 134 (1955) (emphasis in original).

91a 14 Stat., c. 200 at 174 (1866).

freedmen dependent on the Government for support” ; un
der H.R. 613, however, educational programs were limited
to blacks. Section 12 of H.R. 613 authorized the use of
land, buildings or the proceeds derived therefrom for “the
education of the freed people”, and section 13 directed co
operation with and assistance to “private benevolent as
sociations of citizens in and of freedmen . . . for purposes
of education.” 92 While the general lands provision of S.60
was deleted, H.R. 613 had six sections protecting blacks
who had occupied certain specified abandoned lands,93 and
Congressman Eliot contemplated that the Bureau would
use the provisions of the Southern Homestead Act “to pro
vide for the freedmen,” 94 as indeed occurred.95 In sum,
though slightly weakened in other respects, the new bill
expressly provided special protection and aid for blacks
alone in a manner unknown to the vetoed bill or the 1865
Freedmen’s Bureau Act.

Since the provisions of S. 60 had been exhaustively dis
cussed earlier in the year, the debates on H.R. 613 were
brief. The objection to the measure as a form of special
treatment for blacks, a description particularly accurate
as to H.R. 613, was renewed. Congressman LeBlond urged
that it was

9214 Stat., e. 200 at 176 (1866). Congressman Eliot noted that
the hroader provisions of S.60 had been objected to on the ground
“that the United States ought not to educate,” but urged “ [i]t is
perfectly plain that education cannot be secured to these freedmen”
without federal assistance. Globe 2773.

9314 Stat., c. 200 at 174-76 (1866).
94 Globe 2773.
95 See p. 32, supra, n. 90. Sections 7 and 8 of the old bill which

had protected “negroes, mulattoes, freedmen [and] refugees” from
discrimination in the administration of civil and criminal law, were
redrawn to prohibit only discrimination on the basis of “race or
color, or previous condition of slavery.” 14 Stat., e. 200 at 176-77
(1866).

“the duty of this Congress to strike down that system
at once, leaving these colored people, free as they are,
to make a living in the same way that the poor whites
of our country are doing. . . . [T]he period has gone
by when the American people, taxed as they are almost
to the death for the purpose of supporting this Gov
ernment, are going to contribute any longer to the
maintenance of this class of persons.” 96

He objected in particular to the provision of H.R. 613 au
thorizing the Secretary of W ar “to issue such medical
stores or other supplies and transportation, and afford
such medical or other aid” as might be needed to carry
out the purposes of section 2 of the 1865 Act, i.e. for the
assistance of “destitute and suffering refugees and freed-
men” : 97

“It is true it only purports upon its face to confer the
power to furnish medical aid; yet the power is there
given not only to feed but to clothe the colored people
who have been slaves. That of itself is objectionable.
I t is class legislation; it is doing for that class of
persons what you do not propose to do for the widows
and orphans throughout the length and breadth of
this whole country.” 98

96 Globe 2780.

9713 S tat. e. 90, 508 (1 8 6 5 ); 14 S ta t , c. 200 at 174 (1 8 6 6 ).

98 With reference to the lands provisions of H. R. 613 he argued,
“We owe something to these freedmen, and this bill rightly ad
ministered, invaluable as it will be, will not balance the ac
count. We have done nothing to them, as a race, but injury.
They, as a people, have done nothing to us but good . . . .
We reduced the fathers to slavery, and the sons have periled
life to keep us free. That is the way history will state the case.
Now, then, we have struck off their chains. Shall we not help
them to find homes? They have not had homes yet.”

Globe 2780. Additional constitutional authority, he urged, could

Again, Congressman Eliot, in support of the bill, urged
that such special treatment was entirely proper." H.R. 613
passed the House on May 29, 1866, and the Senate approved
a similar draft on June 26. The Conference Report on the
hill was adopted by both houses on July 2 and 3, 1866.100

President Johnson again vetoed the bill, arguing that it
fell “within the reasons assigned” in his veto message
concerning S. 60.101 After urging that any special problems
of blacks had already been resolved, he particularly criti
cized the lands sections providing property only

“to a particular class of citizens. While the quieting of
titles is deemed very important and desirable, the dis
crimination made in the bill seems objectionable___” 102

The neAv veto message closed with an emphasis on the un
desirability of such special treatment for any “favored
class of citizens” : “In conclusion I again urge upon Con
gress the danger of class legislation, so well calculated to
keep the public mind in a state of uncertain expectation,
disquiet, and restlessness.” 103

The bill was returned by President Johnson to Congress
on July 16, 1866, and voted on by both houses the same day.
Qenator Saulsbury, who had opposed legislation for freed-

be found in section 2 of the Thirteenth Amendment, which he read
as giving power to adopt such legislation as it “shall deem to be
appropriate to make fairly effective the great grant of freedom.”
Id. at 2779.

99 Id. at 2773.
100 Id, at 2878, 3413, 3524, 3562.
101 VIII Messages and P apers of t h e P residents, op. cit. 3620.
102 Id. at 3623.
10:1 Ibid.

men since the first proposals in 1864, once again objected
to the bill’s preferential treatment for blacks.

“W hat is the principle involved? No less a principle
than this: has the Congress of the United States the
power to take under its charge a portion of the people,
discriminating against all others, and put their hand
in the public Treasury, take the public money, appro
priate it to the support of this particular class of in
dividuals, and tax all the rest of the people of the
country for the support of this class! . . .
Not only are the negroes of the South set free, by
which the object and the aim of all abolitionists in the
land was accomplished as we supposed, but a bill is
passed by Congress conferring upon them all civil
rights enjoyed by white citizens of the country, and
they are now selected out from among the people of
the United States, the public Treasury put at their
disposal, and the white people of the country taxed for
their support. Lands to which you claim title . . . you
take and given to the negroes in South Carolina. You
give these lands to no white person. . . .
I never believed that Congress had any right to estab
lish any such bureau to take under its charge any
particular portion of the people of the United States
and to provide for them out of the public Treasury or
out of the public lands.” 104

Congress, which had consistently rejected such arguments,
did so again.

The House voted 104 to 33 to override the veto, and the
Senate voted the bill into law by a margin of 33 to 12.106

104 Globe 3840-3841.
105 Id. at 3842, 3850. The 1866 Freedmen’s Bureau Act is codi

fied as Act of July 16, 1866, c. 200, 14 Stat. 173-177.

(4 ) F reed m en ’s B u re a u L eg isla tion , 1868-1870

Although General Howard had believed the Freedmen’s
Bureau should be allowed to expire in July, 1868, as the
1866 Act provided,106 he discovered that the consequence
of withdrawing Bureau agents from the Southern States
w as:

“to close up the schools; to intimidate Union men and
colored people, and, in fact, to paralyze almost com
pletely the work of education which, until then, was in
a healthful condition and prospering.” 107

Accordingly, Howard wrote to Congress on February 8,
1868, recommending continuation of the Bureau for an
other year.108

Congressman Eliot introduced such legislation to extend
the Bureau, emphasizing the importance of its educational
work:

“ [I]f the protecting care of the General Government,
feared by those whose hearts are rebel as their hands
were hostile during the war, should be removed, there
is no doubt at all that schools would be abolished and
a war upon the freedmen begun. There are now two
hundred and thirty-eight thousand three hundred and
forty-two scholars receiving instruction in these
schools. The teachers are chiefly supplied and paid

106 In his report of December, 1867, General Howard noted that,
while other Bureau activities had generally declined since its crea
tion, the operation of schools for freedmen had continued to ex
pand. For the year ending September 1, 1867, educational activi
ties accounted for $208,445 of the Bureau’s $284,117 in expendi
tures. R eport of t h e Commissioner of th e B ureau of R efug ees,
F reedm en and A bandoned L ands 36 (1867).

107 Cong. Globe, 40th Cong., 2d Sess., 1817 (1868).
108 IMd.

by northern and western benevolent associations. The
school houses are mainly built from private funds of
freedmen and contributions from loyal men. School-
houses are in some places rented and everywhere pro
tected by the Government and it is this protection
which is needed, and without which they cannot be
continued.” 109

This extension of the Bureau was opposed on the grounds
urged in past years. Congressman Adams objected to
legislation “to feed, clothe, educate and support one class
of people to the exclusion of all others equally as destitute
and much more deserving”.110 Congressman Wood objected
to taxing white men for the aid of blacks.111 Senator
Hendricks attacked the Bureau for placing freedmen “in
supremacy and in power over the white race”.112 Congress
again rejected these arguments by a decisive margin,113
and in June, 1868, renewed the Bureau for another year.114
In July of 1868, without significant additional debate,
Congress passed over the President’s veto,115 a new statute
continuing indefinitely “the educational department of said
Bureau and payment of moneys due the soldiers, sailors,
and marines,” and terminating other Bureau functions as

109 Id. at 1816.
110 Id. at App. 292.
111 Id. at 1994.
112 Id. at 3054.
113 The House vote was 97 to 38. Id. at 1998. The Senate vote

was not recorded. Id. at 3058.
114 The law is set out at 15 Stat. 83, c.135 (1868). The bill be

came law without the President’s signature. Id. at 84.
116 The veto was based on limitations placed by the new statute

on the President’s authority to appoint Bureau personnel. G.
B e n tl ey , A H istory of th e F reedm en’s B ureau 202 (1 9 5 5 ).

of January 1, 1869.116 Congressional appropriations for
freedmen’s hospitals in Washington, D. C. and elsewhere
continued for many years, thereafter.117

116 Cong . Globe, 41st Cong., 1st Sess., 193-194 (1870).
117 Except for a single appropriation in 1866, the Bureau had

been largely self-supporting, paying for its education and other
programs in part with funds received from the rental of abandoned
property and other activities. With the termination of all but the
education and colored servicemen programs, however, these sources
of income were lost, and after continuing on cash reserves for two
years the Bureau ran out of funds in the spring of 1870. This de
velopment forced Congress to consider whether or not to follow
General Howard’s recommendation that federal assistance to or
operation of local educational facilities be continued and funded on
a permanent basis. In March of 1870, Congressman Arnell intro
duced legislation to create an Office of Education “to exercise the
same powers of those hitherto exercised by the Freedmen’s Bureau
in its educational division.” Id. at 2295. The measure passed the
House by a vote of 104-55 on April 5, 1870, id. at 2430, but never
reached a vote in the Senate, and thus died. Id. at 5286, 5287.
While the basis of Senate opposition cannot be determined, since
the bill was never debated, the primary objection to the measure in
the House was that providing for education was a matter for the
states. Congressman McNeely argued that all the Southern States
had or would make “suitable provision by their constitutions for
the education of the children of freedmen,” and if they failed to
do so Congress could as easily intervene then as now. Id. at 2317.
He therefore urged Congress:

“to end this Federal interference in educational affairs and
leave their exclusive regulation to the States and the people
directly interested. What would suit one State might not suit
another, and that system of teaching or character or qualifica
tion of teachers, or kind of school books, or set of rules for
school discipline, which might suit the people of one county or
school district might not suit another.”

Id. at 2319. Congressman Lawrence argued that:
“this bill opens up a subject vastly more important than many
members of this House have as yet supposed. It presents the
question whether we shall embark in the general business of
taking charge of the educational interests of the States. For
if we may in this way provide the means of education in the
States of this Union, we may do it to the exclusion of the com
mon schools already existing in the States; and we may sub-

(5 ) 1867 R elief L egislation

In March, 1867, Congress adopted two statutes providing
food and other aid to the poor whose contrasting provi
sions and legislative histories indicate the care with which
Congress designated by race the intended recipients.

The first measure, -which became law on March 16, 1867,
appropriated funds “for the relief of freedmen or destitute
colored people in the District of Columbia, the same to be
expended under the direction of the commissioner of the
bureau of freedmen and refugees.” 118 Senator Morrill
urged “the necessities of this class of people in the district
commend themselves very strongly to [the Senate’s] sense
of humanity and charity.” 119 Congressman Holman argued
for its adoption on the ground “that great destitution
exists among the colored population here, and that an
appropriation of this kind is imperatively demanded by
considerations of common humanity.” 120

Two weeks later, Congress enacted “a Resolution for
the Relief of the Destitute in the Southern and South
western States.” This measure, growing out of crop fail
ure and resulting famine, authorized the Secretary of
War, “through the commission of the freedmen’s bureau,”
to provide from funds previously allocated to the Bureau
“supplies of food sufficient to prevent starvation and

vert the educational systems which have been established in
every State of this Union.”

Id. at 2320. The arguments of past years regarding special aid
to freedmen were not, however, raised again. With the defeat of
the Arnell bill the educational activities of the Bureau came to an
end, as did most of the freedmen’s schools. The Bureau itself,
moribund except for the payment of colored servicemen’s claims,
was finally abolished in 1872.

11815 Stat. Res. 4, 20 (1867).
119 Cong . Globe, 40th Cong., 1st Sess., 28 (1867).
120 Id. at 76.

extreme want to any and all classes of destitute or help
less persons.” 121 The decision to give indigent whites equal
access to Bureau food supplies originally intended for
freedmen was a matter of great controversy. Congress
man Butler objected to this plan to aid “the white men
at the expense of freedmen.” He asked, rhetorically, for
whom they were asked to encroach “upon the provision
made for the freedmen,” and concluded that the food
would go to “ [n]ot merely the women and children, not
merely the sick and disabled, but the able bodied rebel
who, lounging at the corner grocery, refuses to work,”
while the “mudsills of the North are obliged to work
in order that they may pay taxes for the support of the
Government.” 122 Others renewed their criticism of the
general exclusion of whites from the Bureau’s aid pro
grams,123 and urged that the statute be modified to include
whites for other purposes.124

12115 Stat. Res. 28, 28 (1867).
122 Cong. Globe, 40th Cong., 1st Sess., 257 (1867): see also id. at

83-84.
123 Id. at 85 (remarks of Rep. Chanler).
124 Id. at 237 (remarks of Rep. Pile). Such modifications were

not enacted. The sense of Congress was expressed by Ohio Con
gressman John A. Bingham, the author of the Fourteenth Amend
ment, who saw no objection to the general limitation in the Freed-
men’s Bureau Act for which he had voted in 1866, id. at 235-236,
but urged that no such distinction should be made in a case of
actual starvation:

“ [T]he war’s dread alarm has ended, as happily as it had with
us, when the broken battalions of rebellion have surrendered
tô the victorious legions of the Republic, let no man stand
within the forum of the people and utter the horrid blasphemy
that you shall not have regard for the famishing poor. Do not
then, I pray you, ask that this Government shall degrade itself
in the presence of the civilized world by refusing supplies to
its own citizens who are famishing for bread, and stop to in
quire of the starving thousands whether they were friends or
enemies. Sir, you cannot discriminate, if you would, between
friends and enemies when famishing men ask for bread.”

Id. at 90.

(6 ) T h e C olored S erv icem en’s C laim Act

During the war special bounties and other payments
were authorized for soldiers who enlisted in the Union
forces, the funds, at least in part, only payable at the
conclusion of hostilities or completion of the period of
enlistment. In the following years unscrupulous claim
agents, offering to represent black servicemen in obtain
ing such sums, pensions, or back pay due to them, took
unfair advantage of their often uneducated and unsophis
ticated clients and pocketed unwarranted portions of the
funds ultimately obtained. To protect the black soldiers,
Congress in 1866 established a schedule of maximum fees
payable to agents or attorneys handling such claims for
colored soldiers.125 This measure having proved inade
quate, Senator Wilson proposed in 1867 that all claims
of black servicemen from Southern states handled by
agents or attorneys be paid to the Commissioner of the
Freedmen’s Bureau, who was to pay to each claimant
and agent or attorney the sum authorized by law.126

This proposal, like other legislation pertaining to the
Freedmen’s Bureau, was opposed as a form of discrim
inatory legislation. Senator Grimes urged that he had
long maintained that such:

“class legislation was a great error, that it was wrong,
that it was wicked; that we should not single out one
class and say that the nation should take the guard
ianship of that class to the exclusion of another class;
that we should not single out one class and confer
upon them a consequence which we would not confer

12514 Stat. Res. 86 at 368 (1866).
126 The Bureau had, since July, 1865, been attempting to pro

tect colored servicemen from such abuses by assisting them, without
charge, to collect money owed them. G. B en t l e y , A H istory op
t h e F reedm en’s B ureau 87 (1955).

upon another class. I had thought and hoped that
that time had gone by; that we were successful; that
we had triumphed in this regard; and that we were
to see and hear no more of class legislation. But
what is this proposition but placing, by an act of
Congress, the business affairs of all the colored men
who have been in the Army and Navy and Marine
Corps of the United States under the guardianship
of the Government. . . . ” 127

Senator Henderson objected

“My impression is that the negroes understand their
rights as well as anybody; and I protest against the
idea that we must be eternally legislating for the
negro in order to protect his interest and regarding
him as a ward of the Government, All we need do
is confer upon him the rights, civil and political, that
we confer upon other men, and then I guaranty that
the negro will take care of himself; and so far as his
money rights are concerned he will look out for them
with the same diligence and the same care that white
men do.” 128

127 Cong . Globe, 40th Cong., 1st Sess., 79 (1867).
128 Id. at 80; see also id. at 444 (remarks of Eep. Chanler).

Congressman Holman could see so basis for treating blacks less
than self-sufficient in financial matters if Congress believed them
qualified to vote:

“If, as you assert, the colored man is competent to control the
affairs of the nation, I insist that all public laws and regula
tions which are made applicable to any class of our citizens
who participate in controlling public affairs should be alike
applicable to all who are invested with that high right; and
that all our laws should be sufficiently effective in their pro
vision to protect all men in their just rights of property.”

Id. at 445.

Senator Howe thought the bill covered too many blacks,
since it did not “discriminate at all between . . . those who
are educated and those who are not.” 129

Proponents of the legislation based their arguments on
the special needs of black servicemen.130 Congressman
Scofield argued that conditions requiring special treatment
for colored servicemen were the result of past discrim
ination.

“The object of [the bill] is to protect the colored
soldiers against the fraudulent devices by which their
small bounties are taken away from them. We have
passed bills for the protection of white soldiers, not
exactly like this, but having the same end in view,
for the protection of men who from infancy have had
the benefit of our common schools, and have acquired

129 Id. at 81.
130 Congressman Garfield responded to Congressman Holman’s

argument, see note 128 supra:
“I perfectly agree with the gentleman that we ought to have

general rules operating uniformly upon all classes of cases that
are similar; but I call his attention and the attention of the
House to the marked difference between the condition of the
soldiers and sailors from the States lately in rebellion—the
colored soldiers and sailors—and the position of other soldiers
and sailors. Our soldiers and sailors, enlisted from northern
States, came from States . . . that had their military State
agents here at Washington to take care of the interests of their
soldiers. These soldiers from the South had no such protection
or care. Their State authorities were hostile to them.

Id. at 445. Senator Wilson contended for the bill on this basis;
colored servicemen, he urged,

“have scattered about; there is nobody to watch for or take care
of them; and there are a great many agents who are plunder
ing them and getting all they ean out of them . . . . This
proposition is made for no other purpose on earth than to
provide the necessary precautions so that the money paid by
the Government shall go into the hands of those to whom the
Government intends to pay it.”

Id. at 79.

all that sharpness and self-reliance that come from
the rough and tumble of American life. . . . I say we
have passed laws for the protection of white soldiers,
but not going quite as far as this, because, unlike the
blacks, they have not been excluded from our schools
by legal prohibition, nor have they all their lives been
placed in a dependent position. I know the colored
people are ignorant, but it is not their own fault, it
is ours. We have passed laws that made it a crime
for them to be taught and now, because they have not
the learning that the white man has, gentlemen say
we must not pass laws to protect them against plunder
by the sharks that hang around the bounty offices.” 131

Congress found these arguments for special treatment per
suasive, and passed the bill by a substantial margin.132

B. T he A doption o f the F ourteenth A m endm ent

The Fourteenth Amendment was fashioned and approved
by the same Congress that deliberately enacted race-con
scious remedies for the exclusive or prim ary benefit of
blacks. This is hardly coincidental, for one of the chief
purposes of the Fourteenth Amendment was to consti
tutionalize the remedies tvhich the Thirty-Ninth Congress
had already adopted.133

131 Id. at 444.
132 Id. at 294, 445. The House vote was 62 to 24; the Senate vote

was not recorded. The statute is set out at 15 Stat. 26, Res. 25
(1867). “In five years the Bureau paid to Freedmen from Boston
to Galveston over seven and a half million dollars.” G. B en tl ey ,
A H istory of th e F reedm an’s B ureau 148 (1955).

133 See H . F lack , T h e A doption of t h e F o urteenth A m en d
m ent 11 (1908) :

“The legislation preceding the adoption of the Amendment will
probably give an index to the objects Congress was striving
to obtain or to the evils for which a remedy was being sought

“The one point upon which historians of the Four
teenth Amendment agree, and, indeed which the
evidence places beyond cavil, is that the Fourteenth
Amendment was designed to place the constitutionality
of the Freedmen’s Bureau and civil rights bills . . .
beyond doubt. . . . [T]he new amendment was written
and passed, at the very least, to make certain that
that statutory plan was constitutional, to remove
doubts about the adequacy of the Thirteenth Amend
ment to sustain it, and to place its substantive provi
sions in the Constitution.” 134

When President Johnson vetoed on February 19, 1806
the first Freedmen’s Bureau Bill of 1866, he had questioned
whether the measure was “warranted by the Constitution”
and challenged in particular the authority of Congress to
spend funds, at least outside the District of Columbia, for
the assistance of any class of the needy. In that month,
Congress was already debating an early draft of the Four
teenth Amendment, H.R. 63, which gave Congress the au
thority similar to that now contained in Section 5.135 On
February 28, 1866, nine days after the veto, Congressman
Woodbridge, after reciting the need for federal aid to
destitute freedmen, argued:

. . . . This legislation, together with the debates in Congress,
while being considered by that body, as well as the debates on
the Amendment itself, should afford . . . sufficient material
and facts on which to base a fairly accurate estimate of what
Congress intended to accomplish by the Amendment.”

134 J. te nB roek, E qual U nder L aw 201, 203 (1965).
135 The Amendment then before the House provided, “The Con

gress shall have power to make all laws which shall be necessary
and proper to secure to the citizens of each State all privileges and
immunities of citizens in the several States, and to all persons in
the several States equal protection in the rights of life, liberty, and
property.” H.R. 63, 39th Cong., 1st Sess. (1866) Globe 1034.

“But it may be said that all this may be done by legisla
tion. I am rather inclined to think that most of it may
be so accomplished. But the experience of this Con
gress in that regard has been most unfortunate. Sir,
I cast no imputation upon the President of the United
States . . . . But inasmuch as the President, honestly,
I have no doubt, has told us that there were constitu
tional difficulties in the way, I simply suggest that we
submit the proposition to the people, that they may
remove these objections by amending the instrument
itself.” 136

Later in the debate on the same day Congressman Bing
ham, the sponsor of H.R. 63, placed in the record a news
paper article describing the “rejoicing of the people of the
South” at news “that the President had vetoed the Freed-
men’s Bureau bill.” When opponents objected to the rele
vance of this article, the Speaker ruled it was pertinent
since related to the purpose and effect of the proposed
Amendment:

“This constitutional amendment proposes to give Con
gress ‘power to make all laws which shall be necessary
and proper to secure to the citizens of each State all
privileges and immunities of citizens in the several
States and to all persons in the several States equal
protection in the rights of life, liberty, and property.’
And if the Chair is correctly informed by the remarks
of the gentleman from Ohio as to what this extract is,
it relates to the veto by the President of a bill passed
by Congress in regard to the rights of certain persons,
and if that is the case, it may be within the province
of Congress to pass a constitutional amendment to
secure those rights and the rights of others generally,

136 Id, at 1088.

and therefore, as a part of the remarks of the gentle
man from Ohio, this is certainly in order.” 137

The Freedmen’s Bureau Act of 1866, the Reconstruction
measure which probably contained the most race-specific
remedial legislation, was considered simultaneously in Con
gress with the Fourteenth Amendment. The House passed
the Amendment on May 10, 1866, the Senate voted a modi
fied version on June 8, 1866, and the House acquiesced in
the Senate changes on June 13.138 The House approved the
second Freedmen’s Bureau Act on May 29, 1866, the
Senate voted a modified version on June 26, 1866,139 and
the Conference Report was adopted on July 2 and 3, 1866.
On several occasions the Act was debated in one House at
the same time the Amendment was being debated in the
other.140

Moreover, the same legislators who comprised the two-
thirds majority necessary to override President Johnson’s
second veto of the Freedmen’s Bureau Act of 1866 also
composed the two-thirds majority who approved the Four
teenth Amendment.141 The sponsors of the Amendment,
Congressman Stevens and Senator Wade, as well as its
apparent author, Congressman Bingham, all voted for the
Freedmen’s Bureau Act. The sponsors of the Act, Senator
Trumbull and Congressman Eliot, voted for the Amend-

137 Id. at 1092.
138 Id. at 2545, 3042, 3149.
139 Id. at 2773, 3413, 3524, 3562.
140 See, e.g., at 2799, 2807, 2869, 2977.
141 Of the 33 Senators and 104 Representatives who voted to

override President Johnson’s second veto of the Freedmen’s Bureau
Act, all who were present for the vote on the Fourteenth Amend
ment voted for it. Of the 33 Senators and 120 Representatives who
voted for the Amendment, all but 4 representatives who were
present for the vote or the veto voted to override it. Id. at 3042,
3149, 3842, 3850.

ment; Eliot spoke at length in support of the Amend
ment,142 and Trumbull wrote and sponsored the 1866 Civil
Rights Act whose substantive provisions were the basis of
section 1 of the Amendment.143

Congressman Stevens, introducing the Fourteenth
Amendment to the House, described its basic purpose as
providing for “the amelioration of the condition of the
freedmen.” 144 These are exactly the same words which
Congressman Moulton used only three months earlier to
describe the object of the first Freedmen’s Bureau bill of
1866.146 This identity of phrasing reflects the similarity of
purpose underlying the two measures. The supporters of
the Act and Amendment regarded them as both consistent
and complementary, while opponents viewed the two, to
gether with the Civil Rights Act of 1866, as part of a single
coherent, though in their view, undesirable, policy.146 No
member of Congress intimated he saw any inconsistency
between the provisions of the Act and the Amendment; or
between the Thirteenth Amendment, which advocates of the
bill contended provided authority to establish and continue
the Bureau, and the Fourteenth Amendment. During the
debates on the Amendment, opponents frequently went out
of their way to criticize the Freedmen’s Bureau,147 while
supporters of the Amendment praised the Bureau.148

142 See, e.g., id. at 2511-12.
143 See F lack , op. cit., at 55-97.

144 Globe 2459.

145 Id. at 632.
146 Id. at 2501 (remarks of Rep. Shanklin) ; 2537-8 (remarks of

Rep. Rogers) ; 2941 (remarks of Sen. Hendricks) ; App. 239-40
(remarks of Sen. Davis).

147 Globe at 2472 (remarks of Rep. W. Black) ; 2501 (remarks
of Rep. Shanklin).

148 Id. at 1092 (remarks of Rep. Bingham) ; 3034-35 (remarks of
Sen. Henderson).

The Thirty-Ninth Congress, which was fully aware of
the race-conscious remedies and limitations contained in
the Freedmen’s Bureau Acts it had passed in February and
July of 1866, cannot conceivably have intended by its ap
proval of the Fourteenth Amendment on June 12, 1866, to
have invalidated or forbidden such remedies. The debates
in that Congress have an uncannily modern reverberation:
the opposition to the Freedmen’s Bureau Acts and other
race specific remedies was expressed in much the same
terms as contemporary argument against such measures as
petitioner’s special admission program. Moreover, the
post-Civil W ar remedies cannot be distinguished from peti
tioner’s program on the ground that they provided general
services to a particular racial group without denying ser
vices to another racial group, since the services provided
to freedmen were not at the time available to whites in the
affected areas and were usually not authorized to be pro
vided to them by the legislation aimed at the freedmen.
As the debates just reviewed indicate, the “scarcity of re
sources” argument was frequently voiced by opponents of
the Reconstruction measures—the freedmen’s legislation
was undesirable and unconstitutional, it was contended,
because affording programs to blacks meant denying such
programs to whites. These opponents—and respondent—
have contended that abstract principles of equality and
racial justice preclude special assistance for racial groups
whose members have for generations suffered invidious
discrimination, although the lack of remedial treatment is
likely to perpetuate the exclusion of these groups from
important areas of American life. This social theory was
repeatedly and overwhelmingly rejected over a hundred
years ago, and insofar as respondent’s arguments in this
case assume the Fourteenth Amendment is founded upon
such a theory, these arguments do not withstand analysis.

C. Discrimination in Medical Education D uring the
Last Century

The most significant achievement of the Freedmen’s Bu
reau was in the area of education,149 although the progress

149 General Howard had contended that “the most urgent want
of freedmen was a practical education; and from the first I have
devoted more attention [to that] than to any other branch of my
work.” II 0 . H oward, A utobiography 368 (1907). See also G.
B en tley , A H istory of t h e F reedm en’s B ur ea u 63, 169, 257 n.
101 (1955). In most years, more than two-thirds of all funds spent
by the Bureau were used for the education of freedmen. Com m is
sioner of B ureau of R efug ees, F reed m en , and A bandoned
L ands R eport 12 (1866); id. at 33, 36 (1876) ; id. at 7 (1868);
id. at 21 (1869) ; id. at 14 (1870). Over three million dollars was
spent on freedmen’s schools from 1868 to 1870. W. DuBois, B lack
R econstruction 648 (1935). The Bureau provided funds, land,
or other assistance for the establishment of more than a dozen col
leges and universities for the education of black students. H oward,
supra, at 390-422; B ureau of R efug ees, F reedm en and A b a n
doned L a n d s , S ix t h S em i-A n n u a l R eport on S chools for F reed
m e n , 60-63 (July 1, 1868); E igh th S em i-A n n u a l R eport on
S chools for F reedm en , 75-80 (July 1, 1869); N in t h S em i-
A n n u a l R eport on S chools for F reedm en , 61-63 (January 1,
1870). Provision was also made for normal schools to educate black
teachers. Only one institute of higher education for white refugees,
the Lookout Mountain Educational Institute, was ever assisted by
the Bureau. B en t l e y , supra, at 255 n.43. In 1867, following the
incorporation of Howard University, the Bureau provided it with
the down payment for the property on which the University is lo
cated and then constructed for it buildings at a cost of half a mil
lion dollars. H oward, supra, at 398-401. Underlying the decision
to establish and assist the University and to establish graduate and
professional schools there, was General Howard’s view that, follow
ing the Civil War, “Negro pharmacists and other medical men were
soon required, and contentions with white men in courts demanded
friendly advocates at law.” Id. at 394. Howard was open to whites,
L ogan, H oward U n iv e r sit y : T h e F irst H undred Y ears, 1867-
1967, 34 (1969), but the Bureau required as a condition of its aid
that the University make “special provision for freedmen.” B ureau
of R efug ees, F reedm en , and A bandoned L a n d s , S ix t h S em i-A n
n u a l R eport on S chools for F reedm en 60 (July 1, 1868).

In 1870 General Howard’s conduct of the Bureau was investi
gated by the House Committee on Education and Labor, following
charges of misconduct made by Congressman Fernando Wood. The
first of the fifteen specific accusations considered was that the

made was limited, and although many of the educational
institutions were abandoned or abolished after other Bu
reau programs were terminated in 1869 and after federal
aid to freedmen’s education was ended in 1870. Congress
apparently believed that such education should be left to
the States, but the Hayes-Tilden compromise after the
election of 1876 and the end of military reconstruction
ushered in an era which was marked by vicious racism:150
the neglect of black educational problems by the federal

Bureau’s aid to Howard University was “without authority of law.”
H.R. Rep. No. 121, 41st Cong., 2d Sess., 2 (1870). General How
ard defended that assistance, inter alia, by reference to this special
provision, “If it be claimed that the University charter does not call
for the education of refugees and freedmen, or their children, the
answer is, that its charter is not limited; that in the reception of
all the funds derived from the government the University Corpora
tion formally accepted the conditions expressed in the order of
transfer and in the contracts for building. The deeds of transfer
of the buildings also expressly demand and secure the fulfillment
of this important condition.” Statement of Br. Maj. Gen. O.O.
Howard Before the Committee on Educational Labor in Defense
Against the Charges Presented by Hon. Fernando Wood, id. at
517. The committee found persuasive Howard’s explanation of
this and other disputed conduct, and exonerated him. H.R. Rep.
No. 121, 41st Cong., 2d Sess. (1870). On March 2, 1871, the House
adopted a resolution from the Committee formally acquitting
Howard of the charges and praising his administration of the Bu
reau. Cong. Globe 41st Cong., 3d Sess., p.1850-51 (1871).

Approximately 100,000 students were educated each year during
the existence of the Bureau’s schools, with enrollment limited al
most exclusively to blacks. General Howard “refused to spend
Bureau money on [school] buildings unless they were on sites
secured by deed for Negro education forever.” B e n tl ey , supra, at
174. Among black students, no distinctions were made according
to degree of past disadvantage. During this period, comparable
free public education was not generally available in the South.
R. H e n r y , T h e S tory of R econstruction 129, 243 (1938); H .
Carter, T h e A ngry S car 57 (1959). A Georgia editor complained
in 1871 that “ [t ] he colored people of Georgia are receiving more
educational advantage than the poor whites.” II W. F lem ing .
D ocum entary H istory of R econstruction 203 (1906).

150 See generally C. V a n W oodward, T h e S trange Career of
J im Crow (3rd e'd. 1974).

and state governments, the forcible segregation of the
black population, and the denial to that population of
equivalent medical training and care.

In no area was this invidious discrimination more
marked than in medical education and health facilities.
We set forth this dreary history at length in Appendix A,
infra, and. only a few highlights need be recounted here.
During the past century, medical education has been al
most entirely segregated, and 90% of the nation’s black
physicians have been trained at the medical schools of
Howard and Meharry Universities, institutions expressly
created for blacks and financed with federal funds.151 As
late as 1948, a third of the approved medical schools in
this country (26 out of 79) had an official policy of deny
ing admission to black applicants solely on account of
their race.152 The effects of this invidious discrimination
are reflected in the disproportionately small number of
black doctors now practicing in this country. While there
is one white doctor for every 477 whites, there is only one
black doctor for every 2779 blacks,153 and a mere 2.2%
of the nation’s physicians are black.164 Even when black
medical students have gained admission to medical schools,
their professional advancement and, indeed, their ability
to treat the sick has often been impeded or actually

151 J. B lack w ell , T h e B lack Co m m u nity 127-128 (1 9 7 5 ).
See also H . M orais. T h e H istory of th e N egro in Medicine 93-94,
134-138, 174 (1 9 6 7 ) ; J. Cu r tis , B lacks, Medical S chools and
S ociety 13-14 (1 9 7 1 ).

162 Johnson, History of the Education of Negro Physicians, 42 J.
Med . E duc . 439, 441 (1 9 6 7 ).

163 U .S . B ureau of th e Ce n s u s , S tatistical Abstract of th e
U nited S tates, 1976, 25; C. Odegaard, M inorities in Medicine
18 (1977) (population as of 1 9 75 ).

154 Odegaard, id.

thwarted by racial discrimination in training programs,
the use of hospital facilities, and in medical associations.

The attempt since 1969 to expand medical educational
opportunities for blacks and other minority students165 and
petitioner’s special admissions program reflect the recog
nition that the invidious discrimination which prompted
federal legislation in the 1860’s continues to plague the
nation and that programs such as those enacted by Con
gress in the Reconstruction E ra are still needed a century
later to alleviate the injuries suffered by blacks and other
minorities in the health area.

III.

D e J u re Segregation in California Public Education

Just as the court below considered the constitutionality
of petitioner’s special admission program without regard
to the history of the Fourteenth Amendment, so also did it
ignore judicially noticeable materials which establish that
this program is a remedial response to historical de jure
educational segregation in California.156 This Court has

165 See A ssociation of A m erican Medical Colleges T ask F orce
to t h e I n t er -A ssociation Comm ittee of E xpan ding E ducational
Oppo rtun ities in M edicine for B lacks and Other M inority
S tu dents (1970).

156 “There is no evidence in the record to indicate that the Uni
versity has discriminated against minority applicants in the past
. . . . Neither party contended in the trial court that the Univer
sity had practiced discrimination, and no evidence with regard to
that question was admitted below.29 Thus, on the basis of the
record before us, we must presume that the University has not en
gaged in past discriminatory conduct.” Bakke v. Regents of Uni
versity of California, supra, 553 P.2d at 1169. In note 29, the
court conceded: “Admittedly, neither the University nor Bakke
would have an interest in raising such a claim [of de jure segrega
tion] . But this fact alone would not justify us in making a finding
on a factual matter not presented below.”

ruled that “the differentiating factor between de jure seg
regation and so-called de facto segregation . . . is purpose
or intent to segregate,” Keyes v. School District No. 1, 413
U.S. 189, 208 (1973) (emphasis in original), whether this
latter element is manifested by legislative or administra
tive action. As we demonstrate in Appendix B, infra,
California schools were segregated by statute until 1947,
and since that time there have been a large number of judi
cial and administrative decisions, see, e.g., Pasadena City
Board of Education v. Spangler, 427 U.S. 424 (1976), find
ing “racial discrimination through official action,” Swann
v. Charlotte-MecMenhurg Board of Education, 402 U.S. 1,
32 (1971). We also show in Appendix B that an over
whelming proportion of black children attend virtually all
minority public schools in California, and most attend
schools in districts that have been adjudicated in violation
of federal and state law in the last decade. In the past ten
years, the fact that minority groups “are underrepresented
in our institutions of public higher education as compared
to the proportion of these groups among recent California
high school graduates,” (Assembly Concurrent Resolution
No. 151 (1974)), due to the lingering effects of historical de
jure segregation, has been frequently recognized by the
California legislature, Avhich has mandated petitioner and
other State educational institutions to undertake “affirma
tive action” programs to eradicate the continuing problems
of invidious discrimination.

We describe these judicial and legislative materials in
detail in Appendix B, and we submit that they are sufficient
to establish the existence of a condition of de jure segrega
tion in minority education in California167 which justifies—

157 In Keyes v. School District No. 1, supra, 413 U.S. at 197, the
Court noted a 1971 Report of the United States Commission on
Civil Rights “ [fReusing on students in . . . California” and other
Southwestern States which concluded:

if it does not mandate—a special medical school admission
program such as petitioner’s.

IV.

Minority Health Problems and Petitioner’s
Special Admissions Program

Petitioner’s plan to increase the number of minority
doctors is a rational response to the serious health prob
lems of minority communities. I t is well established that
blacks and other minorities have more illnesses and die
younger than white Americans, but a review of mortality
and disease statistics, which are set forth in detail in Ap
pendix 0, shows that the problems are truly grave and
justify a decisive and meaningful response by those who
are responsible for medical care and medical education.

Measures of life expectancy,158 infant mortality,159 ma
ternal deaths,160 fetal death rates,161 and deaths among
young children162 show a horrendous gap between the
health of black and white Americans. Blacks suffer from

“ ‘The basic finding of this report is that minority students in
the Southwest—Mexican Americans, blacks, American Indians
—do not obtain the benefits of public education at a rate equal
to that of their Anglo classmates.’ ”

413 U.S. at 197 n.8.
158TJ.S. B ureau o r t h e Ce n s u s , S tatistical A bstract o r th e

U nited S tates, 1976, 60.

159 Id. at 64; A m erican P ublic H ealth A ssociation, M inority
H ealth Chartbook 36 (1 9 7 4 ).

160 U .S . B ur ea u op t h e Ce n s u s , S tatistical A bstract o r th e
U nited S tates, 1976, 64.

161 Id.
162 ]srATI0NAL Center eor H ealth S tatistics, D epartm ent or

H ea lth , E ducation and W elpare, M o nth ly V ital S tatistics Re
port, S um m ary R eport F in a l M ortality S tatistics, 1973, Table 3.

serious disease at a higher rate,163 and when blacks do get
ill the incidence of death from disease far surpasses the
white mortality rate for the same disease.164

Although morbidity and mortality rates among the black
population are attributable in part to poor housing, nutri
tion, and other incidents of poverty, studies have estab
lished that illness and death among blacks is directly re
lated to lack of health care,165 and that with adequate
facilities and doctors the high incidence of infant and ma
ternal death and illness is dramatically reduced.166 Yet
although access to doctors directly correlates with im
proved health, minorities have fewer opportunities to re
ceive medical attention, and in fact visit doctors much less
frequently that the white population.167

i63b . T u n l e y , T h e A m erican H ealth S candal 40-41 (1966).
164 Darity, Crucial Health and Social Problems in the Black

Community, J ournal of B lack H ealth P erspectives Table 13 at
46 (June/July 1974).

165 P ublic H ealth S ervice, TJ.S. D epartm ent of H e a l t h , E du
cation and W elfare, S elected V ital and H ealth S tatistics in
P overty and N o n-P overty A reas of 19 L arge Cities , U nited
S tates, 1969-71 13; see Iba, Niswander & Woodville, Relation of
Prenatal Care to Birth Weights, Major Malformations, and New
born Deaths of American Indians, 88 H ealth S ervices R eports
697-701 (1 9 7 3 ) ; Weiner & Milton, Demographic Correlates of Low
Birth Weight, 91 Am. J. E pidem iol. 260-272 (Mar. 1970) ; D . K ess-
ner et al., Contrasts in H ealth S ta tu s, V olum e I , I n sta n t
D eath : A n A na ly sis by M aternal R isk and H ealth Care
(1 9 7 3 ).

166 E.g., M aternal and Child H ealth Service, U .S . D epart
m e n t of H ea l t h , E ducation and W elfare , P romoting t h e
H ealth of M others and Ch il d r en , F iscal Y ear , 1972, 6 ; Hoch-
heister, et al., Effect of the Neighborhood Health Center on the
Use of the Pediatric Emergency Departments in Rochester, N.Y.,
285 New E ngland J o urn . of M ed . (July, 1971).

167 Reissman, The Use of Health Services by the Poor, S ocial
P olicy 41 (M a y /J u n e 1 9 7 4 ); N ational Cen ter for H ealth
S tatistics, V ital and H ealth S tatistics, V olum e of P h ysicia n
V isits, U.S., J u l y , 1966-Ju n e , 1967 (1 9 6 8 ). One in every 20 blacks

Lack of access to health care is due in part to the gross
maldistribution of physicians in the United States today,
which leaves many areas and communities devoid of ade
quate health manpower, and the discrepancies have wors
ened in the past decade.168 Whether in inner cities or rural
areas, not only blacks as a whole but other underrepre
sented minorities have poorer access to health care.169
Studies demonstrate that ghetto areas have significantly
fewer doctors than white areas of the same city.170

The lack of adequate health manpower to serve low-
income minorities is also attributable to the growth of
specialization and the decline in the supply of general
practitioners, a trend that has characterized American
medicine in the twentieth century. Between 1931 and 1963,
the number of general practitioners fell from 112,000 to

has never seen a physician; this is true of only 1 in every 100
whites. Fein, An Economic and Social Profile of the Negro Amer
ican, in K . Clark & T. Parson eds., T h e N egro A m erican (1966).
While much of the health difference is due to poverty, the National
Health Survey found that black-white health and health service
differences fail to disappear when income groups were examined
separately. Melton, Health Manpower and Negro Health: The
Negro Physician, 43 -J. M ed . E d . 798, 801 (1968).

168 1976 U.S. Code Cong . & A d m in . N ew s 5390 shows that doctors
are clustered in urban centers in the New England, Atlantic and
Pacific shores. See also A R eport of t h e Carnegie Council on
P olicy S tudies in H igher E ducation , P rogress and P roblems in
Medical a n d D ental E ducation 35-36 (1976).

169 Odega.ard, supra at 44.
i7° jnor example, the black ghetto of Watts in Los Angeles, Cali

fornia has 1 physician for every 4,200 persons, although the aver
age number of physicians in urban areas was 1 per 620. Melton, M.
Health Manpower and Negro Health: The Negro Physician, 43 J.
M ed . Ed. 798, 810 (1968) : see, R eport of th e N ational A dvisory
Comm ission on C ivil D isorders 136 (1968) ; Cherkasky, Medical
Manpower Needs in Deprived Areas, 44 J. M ed. E d . 126 (1969).
See study of metropolitan areas in 1976 U.S. Code Cong . & A d m in .
N ew s 5392-5393 (Study Conducted in 1973).

73,000, or from 72% to 28% of all physicians.171 In 1973,
general practitioners were an even smaller 14.9% of all
doctors.172 Yet, as those physicians who offer the point of
entry into the health system and continning contact with it,
primary care doctors dispense preventative and ambula
tory care, and can best ameliorate the needs of underserved,
low-income minorities.173

An increase in the number of black physicians is crucial
not only to remedy the past effects of discrimination in
medical education and institutions, but also to expand the
supply of doctors who will serve blacks and to provide
greater access to health care for the black community.

Studies over the past thirty-five years have confirmed
the well-recognized fact that black doctors in the United
States serve as primary care providers to an overwhelm
ingly black patient group.173a A study in 1942 found that

171K. F e in , T h e D octor S h o r tag e: An E conomic D iagnosis
68-72 (1967).

172 U .S . P ublic H ealth S ervice, T h e Su p p l y op H ealth M a n
p o w e r : 1970 P rofiles and P rojections to 1990, 60 (1974). If one
includes doctors in family practice, internal medicine, pediatrics
and obstetrics-gynecology as those who provide primary care, the
percentage fell from 54.5% in 1963 to 48.4% in 1973. Id.

173 Kodgers, The Challenge of Primary Care, D aedalus 82 (Win
ter 1977). The AMA has recognized the need for primary care
medicine. Citizens Com m ission on Graduate Medical E ducation ,
T h e Graduate E ducation of P h y sic ia n s , 1960 (Millis Commis
sion) ; Committee on Education for Family Practice, Meeting t h e
Ch allenge of F am ily P ractice, 1966 (Willard Commission). To
encourage greater emphasis on primary care, the AMA Council on
Medical Education approved a certifying board for family practice
in 1969. Odegaard, supra at 149.

173a See in general, T. T h om pso n and S. B arrely, A S tudy of
t h e D istribution and Characteristics of B lack P h y sic ia n s in
t h e U nited S tates, 1972, The NMA Foundation 1973; Jackson,
The Effectiveness of a Special Program for Minority Group Stu
dents, 47 J. Med . E d . 620-624 (1972) ; Bichard, The Negro Physi
cian: A study in Mobility and Status Inconsistency, 61 JNMA
278-279 (May, 1969).

black doctors, educated at Howard and Meharry medical
schools moved to urban communities to serve the health
needs of blacks who had migrated there from the South.174
A 1946 report showed that 88% of black physicians inter
viewed dispensed primary care, and two-thirds were full
time general practioners.175 In 1956, black doctors in four
teen cities surveyed had predominately black patients,
and the health of the black communities were found to be
related to the numbers of black doctors in all but one
city.176 In a survey conducted by the AM A in 1970, 45%
of the physicians interviewed indicated they were prac
ticing in or around the town in which they were raised ;m
given the pervasive segregation in housing in this country,
this data supports the findings of the other studies that
black doctors practice in black communities. The highest
concentration of black doctors in 1970 were in California,
the District of Columbia, and New York, the same three
areas that had shown among the largest increase in black
population during those years.178 In a 1972 random sample
of 200 doctors and dentists in New York, less than 5%
served a predominately white patient group.179 In 1974, Na-

174 Comely, Distribution of Negro Physicians in the United
States in 1942, 124 JAMA 826-830 (1944). In 1942, black doctors
were confined to a nationally dispersed professional ghetto, Thomp
son, Curbing the Black Manpower Shortage, supra,

175 Comely, The Economics of Medical Practice and the Negro
Physicians. 43 JAMA 84-88 (1951) (Questionnaires were returned
by 417 black doctors.)

176 D. R ietzes, N egroes and Medicine (1958).
177 Hearing on S. 3585, Health Manpower Act Before the Sub

committee on Health of the 8. Comm, on Labor and Public Wel
fare, 93rd Cong., 2d Hess. 229 (1974).

178 Haynes, Distribution of Black Physicians in the United
States, 1967, 210 JAMA 93 (1969). Black doctors in California
mirrored the rise in that State’s population where the number of
blacks increased ninefold since 1942. Id.

179 Cur tis , B lacks, Medical S chools a n d S ociety, supra a t 149.

tional Medical Fellowships, Inc., an organization dedicated
to increasing the number of black and minority physicians
and to breaking racial barriers in medicine, sent a ques
tionnaire to all 471 recipients of NMF scholarships (all
black )who had graduated from medical school in 1970 or
before and to one-third (1,777) of all National Medical
Association members (who are black) to determine, inter
alia, who their patient populations were. Of the 166 NMF
black doctors who responded, 94% reported that they
served black patients; 55% stated that they served ex
clusively blacks. Of the 259 NMA doctors, 88% said they
served black patients; 79% served only blacks.180

Despite the overwhelmingly predominance of black doc
tors in black communities, the meager number of black
doctors as a whole prevents the black community from re
ceiving anywhere near its share of health resources. In
the three areas that have the largest percentage of black
physicians, the ratio of black doctors to black population
w ere: District of Columbia, 1:1,100; California, 1:1,800;
New York, 1:3,000,181 although the national average physi
cian to population rate is 1 :750.182 Nationwide, there is one
black physician per 2,779 blacks in contrast to one white
physician per 599 whites, a difference of 463%.183

White physicians are obviously needed to serve the black
community, but researchers have reported that white doc-

180 Reitzes & Elkhanialy, Black Physicians and Minority Group
Health Care— The Impact of NMF, 14 Medical Care 1052, 1058
(1976).

181 Thompson, Curling the Black Manpower Shortage, 49 J. Med.
Ed. 944, 949 (1974).

182 Johnson, History of the Education of Negro Physicians, 42
J. Med. Ed. 439, at 443 (1967) (data as of 1967).

183 Population figures and numbers of doctors derived from U.S.
B ureau of th e Ce n s u s , S tatistical A bstract of t h e U nited
S tates, 1976, at 25, 78 (as of 1974) ; percentage of black doctors to
all doctors, Odegaard, supra at 18.

tors and dentists are reluctant to practice in ghetto areas,184
and leave areas as the racial population turns from white
to black.185 Economics is undoubtedly one of the reasons
for this pattern. Even within comparable income groups,
non-whites spend significantly less than whites on medical
care.186 In some instances, however, racism is the reason
for the refusal of white doctors to treat black patients.187
In general, the decision to serve the black community as
primary care providers involves a financial sacrifice.188
Nevertheless, interviews of black medical students indicate
that, they intend to return to black areas as primary care
providers.189

The effect of the shortage of health manpower on the
ill health of blacks and other minorities is aggravated by

184 Melton, supra, at 798, citing Tufts University School of
Medicine, Comprehensive Community Health Action Program, Ap
plication written for the Office of Economic Opportunity, 1966
(mimeographed) ; University of Southern California School of
Medicine, Neighborhood Family Health Service Center, Applica
tion written for the Office of Economic Opportunity, 1966 (mimeo
graphed) .

186 -EJ.gr., Cherkasky, Medical Manpower Needs in Deprived Areas.
44 J. Med. Ed. 126 (1969) (Study of the Bronx).

186 Cu r tis , B lacks, M edical S chools and S ociety, supra, at
159-160.

187 See, e.g., cases concerning the refusal of health professionals
to treat Negro patients. Washington v. Blampin, 38 Cal. Rptr. 235
(Calif. Dist. Ct. of Appeals 1964), 9 Race Rel. L. Rep. 899 (dam
age suit versus doctor who refused to treat black child under state
civil rights law) ; Buefort v. Elias, No. P-242 (Pa. Human Rel.
Commissioner Jan. 26, 1965), 11 Race Rel. L. Rep. 2186 (similar).

188 Melton, supra at 807. On the average, non-white physicians
earn less than half the amount earned by white doctors. Id.

188 Cur tis , B lacks, Medical S chools and S ociety, supra at
147; Curtis, Minority Student Success and Failure wi+h The
National Intern and Resident Matching Program, 50 J. Med . Ed.
563, 566-567 (1975). (Less than one-fifth of the students inter
viewed sought training in other than primary care areas.)

the underutilization by low-income minorities of those ser
vices which are available. Long waits at clinics, bureau
cratic procedures and the extreme impersonality of en
counters between physicians and patients account for some
of the resistance of these groups seeking health care.190
In the area of psychiatry, blacks are generally subject to
treatment inferior to that received by whites under similar
circumstances.191 An increase in black and other minority
physicans to serve these groups can minimize the accessi
bility problems in obtaining medical care due to cultural
and life style barriers.192

I f blacks and other minorities are to have greater access
to health care, more doctors are needed to serve minority

190 Strauss, Medical Ghettoes, in P a t ien t s , P h y sic ia n s and I ll
n e ss 381-388 (E , Jaco, ed. 1972) ; Coe & Wesson, Social Psycho
logical Factors Influencing the Use of Community Health Re
sources, 55 Am. J. P u b . H ealth 1024-1031 (1965) ; Reissman, The
Use of Health Services by the Poor, S ocial P olicy 41, 42-43 (May/
June 1974).

191 In comparison with the white population, blacks are more
likely to be placed in mental hospitals (Rabkin & Struening,
E t h n ic it y , S ocial Class a n d Men ta l I ll n e ss (1976) ; Hollings-
head and Redlich, Social Stratification and Psychiatric Disorder,
18 A m eb . S oc. R ev . 163 (1953) while less likely, along with other
lower-class patients, to receive outpatient psychotherapy (Schaffer
& Myers, Psychotherapy and Social Stratification, 17 P sychiatry
83 (1954) ; given only drugs or custodial care while in a hospital
(Singer, Some Implications of Differential Psychiatric Treatment
of Negro and White Patients, S ocial S cience an d Med icine 1
(1967) ; Hollingshead & Redlich, supra; kept in hospitals longer
than whites (Crawford, Rollins & Sutherland, Variations between
Negroes and Whites in Concepts of Mental Illness and its Treat
ment, 84 A n n . N.Y. A cad. S ci. 918 (1963) ; Chassan, Race, Age
and Sex in Discharge Probabilities of First Admissions to a Psy
chiatric Hospital, 26 P sychiatry 391-393 (1963) ; treated by lower-
ranking personnel (Schaffer & Myers, supra) ; and treated for
lesser periods of time on an outpatient basis (Schleifler, et al.,
Clinical Change in Jail-Referred Mental Patients, 18 A rchives of
General P sychiatry 42 (1968).

192 Thompson, supra, at 949.

communities. The efforts of petitioner and other medical
schools to increase the percentage of minority physicians
is a rational strategy to ameliorate the paucity of health
manpower in such communities.

CONCLUSION

For the foregoing reasons it is respectfully submitted
that the judgment of the court below should be reversed.

Respectfully submitted,

J ack Greenberg
J ames M. N abrit, III
Charles S. R alston
E ric S chnapper
D avid E . K endall
B ill L ann L ee
B eth J . L ief
K ellis P arker

10 Columbus Circle, Suite 2030
New York, New York 10019

Counsel for Amicus Curiae

APPENDICES

APPENDIX A

Discrimination in Medical Education 1870-1977

Petitioner’s special admission program represents one
of the first successful attempts by a medical school not only
to increase the actual numbers of black physicians it pro
duces but also to racially integrate the medical education
it provides. Prior to 1969, when the Association of Amer
ican Medical Colleges began efforts to expand educational
opportunities for blacks and other minority students,1
two institutions provided the vast majority of black physi
cians trained in this country: Howard University College
of Medicine and Meharry Medical College.2 Each was
expressly created for blacks and financed with federal
funds.3

Pervasive segregation has characterized medical educa
tion in this country. By 1948, a third of the approved
medical schools in this country (26 out of 79) did not admit
black students.4 Efforts to segregate medical education
were not the individualistic expression of isolated schools;

1 See A ssociation of A merican Medical Colleges T ask F orce,
R eport to th e I nter-A ssociation Comm ittee on E x pa n d in g E du
cational Oppo rtun ities in M edicine for B lacks and O ther
M inority S tu dents (1970).

2 During the past century, 90% of the Nation’s black physicians
have been trained at Howard and Meharry. J. B lackw ell, T h e
B lack Co m m u n ity , 127-128 (1975).

3 H. M orais, T h e H istory of th e N egro in Medicine , 93-94, 134-
138, 174 (1967); J. Curtis, B lacks, Medical S chools and Soci
et y , 13-14 (1971). Seven other small black medical schools oper
ated for short periods of time, but had ceased to operate by the
1920’s. Johnson, History of the Education of Negro Physicians,
42 J. Med . E du c . 439, 440-441 (1967).

4 Johnson, History of the Education of Negro Physicians, supra
at 441.

Appendix A

segregation has been legislatively mandated and financed.
On February 8, 1948, the governors of fourteen southern
states entered into an interstate compact for regional
education, which included a plan for joint support of
Meharry Medical College to finance the medical education
of blacks from their states who were barred from admis
sion to the medical schools in their borders. At least
sixteen states finally participated in the program and
adopted implementing legislation which included laws pro
viding for the payment of tuition of blacks to attend out-
of-state schools.6

The obvious effect of systematic exclusion was to limit
the production of black graduates to the number of seats
at Meharry and Howard. Even as black students gained
access to increasing numbers of white medical schools, they
remained a minuscule percentage of all students.

5 P . M urray , S tates’ L aws on R ace and Color, 23-28 (Ala.),
81 (Fla.), 91-96 (Ga.), 182-187 (La.), 201-208 (Md.), 241-245
(Miss.), 333-338 (N.C.), 363-368 (Okla.), 410-414 (S.C.), 432-436
(Tenn.), 666-675 (Note on Regional Compact) (1951). While in
theory, following Sipuel v. Board of Regents, 332 U.S. 631
(1948), those states could not bar blacks from their own state
schools, the interstate compact at least encouraged out-migration
of black medical students and clearly signaled that they were not
welcome within the states on the same basis as whites.

Appendix A

TABLE I6
Black Student Enrollment in

U.S. Medical Schools for Selected Years
1938-39 to 1969-70

% of Total Black
Enrollment in

Year
Total

Enrollment
Num ber of

Black Students
% Black
Students

Predominantly
W hite Schools

1938-1939 21,302 350 1.64 12.9
1947-1948 22,739 588 2.59 15.8
1948-1949 23,670 612 2.59 19.1
1949-1950 25,103 651 2.59 21.2
1950-1951 26,186 661 2.52 21.6
1951-1952 27,076 697 2.57 23.2
1952-1953 27,135 715 2.63 26.7
1955-1956 28,639 761 2.66 31.0
1968-1969 35,828 782 2.18 37.3
1969-1970 37,756 1,042 2.75 52.4

6 J. Cur tis , B lacks, Medical S chools and S ociety, 34 (1971).
Source: (1) Dietrich C. Reitzes, Negroes and Medicine, Harvard
University Press 1958; (2) A.A.M.C. Pall 1969 Enrollment Ques
tionnaire. While the percentage of black students remained fairly
constant during the years through 1969 and 1970, the actual num
bers of students showed an increase due at least in part to the
decreasing number of schools which refused to admit blacks.

Negro Medical Student Distribution

Year

Total Negro
Students
Enrolled

Negro Enroll
ment in White

Schools

White Schools
With Negro

Students

1947-1948 588 93 20
1955-1956 761 236 48
1969-1970 1,042 546 84

Id. at 40.

Appendix A

By 1970, a mere 2.2% of the nation’s physicians were black,
although blacks comprised approximately 11% of the
population.7

The special efforts of University of California-Davis and
other medical schools since 1969 to provide greater access
to medical education for minorities have for the first time
resulted not only in a substantially greater number and
percentage of minority students, but have begun to elimi
nate the almost totally segregated nature of medical edu
cation for blacks. Thus, enrollment for first year black
students increased four-fold from 1968-69 to 1974-75 prin
cipally as a result of increased admissions to white medical
schools.8 For other minorities who had not benefited from
the existence of Howard and Meharry, the results of the
affirmative admissions policies were even more dramatic.
During the same period, Mexican-Americans experienced
an eleven-fold increase;3 American Indian and Mainland
Puerto Rican enrollment increased twenty-fold.10

7 U . S. Bureau of the Census, S tatistical A bstract of t h e
U nited S tates, 1976, 25 (Statistics as of 1970) ; U . S. Bureau of
the Census, Occupational Characteristics, 1970, 593. The per
centage showed no advance since 1950, when there were 7 million
less black citizens who comprised 10% of the population. R eitzes.
supra at 3; S tatistical A bstract, id.

8 Odegaard, s u p r a at 32.

9 Odegaard, supra at 33. First-year enrollment in 1975-76 for
Mexican-Americans of 1.5% still falls short of the 2.2% repre
sented by this group in the United States. Id.

10 Id. Mainland Puerto Ricans comprise 0.7% of the United
States population ,- American Indians, 0.4% . U nited S tates P u b
lic H ealth S ervice, D e p t , of H ea lth , E ducation a n d W elfare .
M inority H ealth Chartbook 1-2 (1 9 7 4 ).

TABLE II11

Selected Minority Group Enrollment in First-Year Classes in U.S. Medical Schools (1968-75)

Black American Mexican Mainland Total Selected Total First-Year
American * Indian American Puerto Rican Minority Group Enrollment

Num- % of Num- <7c of Num- % of Num- % of Num- % of
ber Total ber Total ber Total ber Total ber Total
En- Enroll- En- Enroll- En- Enroll- En- Enroll- En- Enroll-

Year rolled ment rolled ment rolled ment rolied ment rolled ment

1968-69 266 2.7 3 0.03 20 0.2 3 0.03 292 2.9 9,863
1969-70 440 4.2 7 0.1 44 ,0.4 10 0.1 501 4.8 10,422
1970-71 697 6.1 H 0.1 73 0.6 27 0.2 808 7.1 11,348
1971-72 882 7.1 23 0.2 118 1.0 40 0.3 1,063 8.5 12,361
1972-73 957 7.0 34 0.3 137 1.0 44 0.3 1,172 8.6 13.677
1973-74 1,023 7.5 44 0.3 174 1.2 56 0.4 1,297 9.1 14,124
1974-75 1,106 7.5 71 0.5 227 1.5 69 0.5 1,473 10.1 14,763
1975-76 1,036 6.8 60 0.4 224 1.5 71 0.5 1,39! 9.1 15,295

* Black Americans at Howard and Meharry medical schools accounted for 120 of these 1969-70 freshmen and
195 of these 1974—75 freshmen.

11 Odegaakd, supra, at 30 (1977).

A
ppendix A

TABLE I I I12

Selected Minority Group Total Enrollment in U.S. Medical Schools (1968-75)

Black
American *

American
Indian

Mexican
American

Mainland
Puerto Rican

Total Selected
Minority Group

Total
Enrollment

Num- % of Num- % of Num- % of Num- % of Num- % of
ber Total ber Total ber Total ber Total ber Total
En- Enroll- En- Enroll- En- Enroll- En- Enroll- En- Enroll-

Year rolled ment rolled ment rolled ment rolled ment rolled ment

1968-69 783 2.2 9 0.02 59 0.16 3 0.01 854 2.4 35,830
1969-70 1,042 2.8 18 ** 92 0.2 26 0.07 1,178 3.1 37,690
1970-71 1,509 3.8 18 t * 148 0.4 48 0.1 1,723 4.3 40,238
1971-72 2,055 4.7 42 0.1 252 0.6 76 0.2 2,425 5.5 43,650
1972-73 2,582 5.5 69 0.2 361 0.8 90 0.2 3,102 6.5 47,366
1973-74 3,045 6.0 97 0.2 496 1.0 123 0.2 3,761 7.4 50,751
1974-75 3,355 6.3 159 0.3 638 1.2 172 0.3 4,324 8.1 53,554
1975-76 3,456 6.2 172 0.3 699 1.3 197 0.4 4.524 8.1 55,818

* Black Americans at Howard and Meharry medical schools accounted for 496 of these 1969-70 enrollees
and 695 of these 1974-75 enrollees.

** Less than 0.1 percent.

12 Id. at 31.

A
ppendix A

Appendix A

Special admission policies are needed to overcome not
only the effects of segregated and inferior elementary,
secondary, and college education for blacks,13 but also the
effects of an exclusionary segregated health care system.
Blacks have been deterred from becoming physicians not
only because of the few medical school places available to
them, but also because upon graduation, they have faced
systematic, and in many instances, statutory barriers based
on the color of their skin to practicing as doctors and
delivering health care services. Black doctors have been
excluded from the staffs of white hospitals.14 Racial segre
gation in hospital facilities of various types wTas autho
rized or required by statutes of the United States and

13 See Part III, pp. 57-59, supra.
14 In a study of fourteen communities conducted in 1955, Atlanta,

Nashville and New Orleans had no black physicians with hospital
affiliations in a predominantly white hospital. In only two of the
other cities surveyed (Boston, Brooklyn, Chicago, Detroit, District
of Columbia, Gary, Indianapolis, Kansas City, Los Angeles, Phila
delphia, St. Louis) was the percentage of black physicians with
privileges in white hospitals higher than 28% and eight were below
8%. R eitzes, op. tit.

ib prior to 1965 the Hill-Burton Act contained a prohibition
against racial discrimination in state hospital construction plans,
but permitted the states to plan for separate hospital facilities for
separate population groups if there was e n a b le provision for
each group. Hill-Burton Act §622, 60 Stat. 1041 (1946), 42 U.S.C.
§991e (1964) The Surgeon General issued a regulation under this
provision. 21 Fed. Reg. 9841 (1956). The authorization of segre
gation was held unconstitutional in Simkms v. Moses Cone Me
morial Hasp., 323 F.2d 959 (4th Cir. 1963), cert, denied 376 L.S
938 (1964). As of March, 1964, 104 segregated hospitals and
health facilities were built with federal funds under the i -
Burton Act, 84 of them for “whites only’ and -0 for blacks H.
Morais The H istory of the N egro in Medicine, 180 ( lytw) .

Appendix A

fifteen states.16 Despite the fact that white hospitals were
more modern, better equipped and thus capable of pro
viding better health care, black doctors and dentists were
barred from their staffs and were unable to admit their

16 The States with hospital segregation laws were:
Alabama: Ala. Code tit. 45 §4 (tubercular hospitals); §248

(mental deficients) ; tit. 46, §189 (white women not to nurse
Negro men patients).

Arkansas: Ark. Stats. Ann. §§7-401, 7-402, 7-404 (tubercu
losis hospital).

Delaware: Del. Code Ann. tit. 16 §155 (1953).
Georgia: Ga. Code Ann. §35-225 (1935) (mental hospital);

§35-308 (1957 Supp.) (mental defectives).
Kentucky: Ky. Rev. Stats. §215.078 (tubercular hospitals) and

§205.180 (1953) (mental hospitals) (both repealed in 1954).
Louisiana: La. Rev. Stats. Ann. §46.181 (1950) (homes for

aged and infirm) ; Acts. 1904 (Colored Asylum).
Maryland: Md. Code Ann. 59, §§61-63 (state hospital for in

sane) ; §§285-286 (separate tubercular hospital).
Mississippi: Miss. Code Ann. §6883 (mental hospital) ; §6927

(State Charity Hospital) ; §6973 (separate entrances) ; §6974
(separate nurses).

Missouri: Mo. Rev. Stats. §9390 (1939) (school for feeble
minded).

North Carolina: N.C. Gen. Stats. §122-3 (1957 supp.) (mental
hospital).

Oklahoma: Okla. Stats. Ann. tit. 10, §§201-206.1 (1951) (Con
solidated Negro Institute) ; tit. 35, §§251-256 (insane) ; tit.
63 §§531, 532 (tubercular).

South Carolina: S.C. Code 1942, §6223 (separate nurses train
ing at Negro Department of State hospital).

Tennessee: Tenn. Code Ann. §33-602 (1955) (hospital for
insane).

Texas: Tex. Civ. Stats. Ann. art. 324a (1952) (TB hospital).
Virginia: Va. Code §§37-5 to 37-6 (1950) (hospitals for in

sane and epileptics).
West Virginia: W. Va. Code §2632 (1955) (mentally deficient

aged and infirm) ; §2636 (TB hospitals for white persons).
See P. Murray, S tates’ L aws on R ace and Color (1951).

Appendix A

patients.17 Where black patients were admitted, they were
often placed in segregated wards and rooms.18

17 Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th
Cir. 1963), cert, denied 376 U.S. 938 (1964).

18 A substantial number of courts have ruled on claims that both
publicly-owned and nongovernmental facilities have excluded or
segregated black patients and health professionals. See, e.g., Eaton
v. Board of Managers, 261 F.2d 521 (4th Cir. 1958), cert. den. 359
U.S. 984; Rackley v. Board of Trustees, 310 F.2d 141 (4th Cir.
1962) ; Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Flagler
Hospital, Inc. v. Hayling, 344 F.2d 950 (5th Cir. 1965) ; Smith v.
Hampton Training School for Nurses, 360 F.2d 577 (4th Cir.
1966) ; Cypress v. Newport News General and Nonsectarian Hospi
tal, 375 F.2d 648 (4th Cir. 1967) ; Johnson v. Crawfis, 128 F. Supp.
230 (E.D. Ark. 1955) ; Wood v. Hogan, 215 F. Supp. 53 (W.D. Va.
1963) ; Porter v. North Carolina Bd, of Control, No. C-123-D-62
(M.D. N.C. Mar. 28, 1963) ; Addison v. High Point Memorial Hos
pital, No. C-96-C-64 (M.D. N.C. Aug. 28, 1964) ; Clayton v. Person
County Hospital, No. C-137-D-64 (M.D. N.C. Oct. 28, 1964);
Rogers v. Druid City Hospital, 10 Race Rel. L. Rep. 1273 (1965) ;
Batts v. Duplin General Hospital, No. 1110 (E.D. N.C. Dec. 23,
1965), 11 Race Rel. L. Rep. 1427 (1966) ; Hall v. Roanolce-
Chowan Hospital, No. 522 (E.D. N.C. Sept. 7, 1975) ; Mangrum
v. Iredell Hospital, No. 519 (W.D. N.C., Nov. 9, 1965) ; Rackley v.
Board of Trustees, 238 F. Supp. 512 (E.D. S.C. 1965) ; Bell v.
Fulton DeKalb Hospital Authority, No. 7966 (N.D. Ga. Feb. 23,
1965) ; Lender v. Lee Memorial Hospital, No. 65-47-Ci. (M.D. Fla.
Dec. 10, 1965) ; Reynolds v. Anniston Memorial Hospital, No. 65-
206 (N.D. Ala., June 21, 1965) ; Rax v. State Department of Hos
pitals, C.A. No. 3265 (E.D. La. Dec. 23, 1965), 11 Race Rel. L. Rep,
384; Pringle v. State Tuberculosis Bd., No. 1044 (N.D. Fla. Jan.
26, 1966) 11 Race Rel. L. Rep. 1427; Burton v. Arkansas Tubercu
lar Sanitorium, No. LR-60-C-51 (E.D. Ark., May 3, 1966), 11 Race
Rel. L. Rep. 1933: Marable v. Alabama Mental Health Board. 297
F. Supp. 291 (M.D. Ala. 1969). See a general discussion of dis
crimination in medical care in Meltsner, Equality and Health, 115
P a . L. R ev. 22 (1966) ; and Reitzes, N egroes and Medicine 1958;
See also Reports of Detroit Mayor’s Interracial Committee (1956),
1 Race Rel. L. Rep. 1123; Atty. Gen. Opinion, Michigan, July 17,
1957. 2 Race Rel. L. Rep. 1203 (private nursing home can restrict
facilities to Caucasians) ; Chicago Ordinance of March 14, 1956 at
2 Race Rel. L. Rep. 697 (forbidding discrimination by hospitals) ;
N.Y. Dept, of Welfare Policy, Dee. 12, 1956. 2 Race Rel. L. Rep.
511 (policy against exclusion in nursing homes).

10a

Appendix A

Black physicians have faced and still face segregation
and exclusion not only hy hospital facilities but by the
organized medical profession as well.

In 1868, black physicians first sought, and were re
fused, membership in the American Medication Association
(AMA).19 In the 1960’s blacks were still faced with the
problem, especially in the South, of being excluded from
membership in local affiliates of the AMA. Despite numer
ous attempts to have the AMA revoke the privileges of
local medical societies which denied membership to blacks,
the AMA has continued to refuse to adopt such resolu
tions.20 Local dental associations have similarly refused
black membership.21 Denial of membership in these asso
ciations has not only deprived black physicians and den
tists of an important forum for the exchange of ideas,
techniques and advances but has actually meant denial of
hospital affiliation and loss of fees.22 Absent local medical
or dental society accreditation, Southern black doctors
were automatically barred from participation in company

19 M orais, note 3 supra at 52.

20 Id. at 174-175; Melton. Health, Manpower and Negro Health:
The Negro Physician, 43 J. M ed . E duc . 798, 799 (July 1968);
Johnson, History of the Education of Negro Physicians, 42 J.
Med . E duc ., 439, 444-445 (1967).

21Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th
Cir. 1966) ; Bell v. Georgian Dental Association, 231 F. Supp. 299
(N.D. Ga. 1964).

22 In many areas of the country, doctors have to be accredited
by their county societies before they can be eligible for hospital
appointments. If black doctors wish to hospitalize patients in such
circumstances, they have to do so by referring them to staff phy
sicians, thereby running the risk of losing them forever. M orais,
supra at 179.

11a

Appendix A

and union-backed health-care plans;23 black dentists were
denied the right to vote for or become members of State
Boards of Health, medical licensing boards, and state
hospital advisory boards.24

23 Ibid.
24 See Hawkins v. North Carolina Dental Society, 355 F.2d 718

(4th Cir. 1966); Bell v. Georgia Dental Association, note 21 supra.

12a

APPENDIX B

D e J u re Segregation in California Public Education

1, Elementary and Secondary Public School Segregation

In 1972, three-quarters of California’s black elementary
and secondary public school pupils attended schools which
were 50-100% black, Chicano, Asian or Indian; over 40%
attended public schools which were 95-100% minority,26
and numerous judicially noticeable decisions demonstrate
that official policies have caused, at the very least, a sub
stantial measure of this condition. The following school
districts have been found to have segregated minority
school children in violation of the Fourteenth Amendment
of the federal Constitution and/or in violation of federal
statutory civil rights guarantees:26 San Francisco,27 Los

25 B ureau of th e Ce n s u s ’ S tatistical A bstract of t h e U nited
S tates, 1976, p. 133 (1976).

Statistical evidence on the extent of segregation in California
elementary and secondary education is available in U. S. D epart
m en t of H ea lt h , E ducation and W elfare, Offic e for Civil
R ig h ts, D irectory of P ublic E lem entary an d S econdary
S chools in S elected D istricts, E nrollm ent and S taff by
R acial/ E th n ic Groups, for F all 1968.(1970), F all 1970 (1972),
and F all 1972 (1974). See also biannual California S tate D e
pa rtm ent of E ducation , R acial an d E t h n ic Survey of Califor
n ia P ublic S chools, for F all 1966 (1967), F all 1968 (1969) and
F all 1970 (1971); Center for N ational P olicy R eview , T rends
in B lack S chool S egregation, 1970-1974, Vol. I (1977) and
T rends in H ispa nic S egregation, 1970-1974, Vol. II (1977).

26 Pursuant to Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d, and Title VII of the Emergency School Aid Act
of 1972, 20 U.S.C. § 1600 et seq., the Department of Health, Ed
ucation and Welfare is given authority to terminate federal as
sistance in cases of, respectively, school segregation generally and
teacher assignment. HEW ’s enforcement role is discussed in, inter
alia, 3 U.S. Com m , on Civil R ights, T h e F ederal C ivil R ights
E nforcem ent E ffort—1974, To Ensure Equal Educational Op-
(See footnote 27 on following page.)

13a

Appendix B

Angeles,28 Pasadena,29 San Diego,30 Oxnard,31 Pittsburg,32
Richmond,33 Delano,34 Fresno,35 Sweetwater,35 Watsonville

portunity 49-138 (1975). Reeent litigation concerning HEW’s
failure to fulfill its enforcement obligations includes Adams v.
Richardson, 480 F.2d 1159 (D.C. Cir. 1973); Brown v. Weinberger,
417 P. Supp. 1215 (D.D.C. 1976); Kelsey v. Weinberger, 498 F.2d
701 (D.C. Cir. 1974).

27 Johnson v. San Francisco Unified School District, 339 F. Supp.
1315 (N.D. Cal. 1971), app. for stay denied, Guey Hcung Lee v.
Johnson, 404 TJ.S. 1215 (1971), vacated and remanded, 500 F.2d
349 (9th Cir. 1974) ; P. v. Riles, 343 F. Supp. 1306 (N.D. Cal:
1972), affirmed, 502 F.2d 963 (9th Cir. 1974) (14th Amendment
violation) ; Lau v. Nichols, 414 U.S. 563 (1974) (Title VI viola
tion found).

28 See, Kelsey v. Weinberger, supra, 498 F.2d at 704 n. 19 (HEW
determination of violation of Emergency School Aid Act noted).

29 Spangler x. Pasadena City Board of Education, 311 F. Supp.
501 (C.D. Cal. 1970) (14th Amendment violation).

30 People v. San Diego Unified School District, 19 Cal. App. 3d
252, 96 Cal. Rptr. 658 (Ct. App. 1971) (14th Amendment viola
tion ).

31 Soria v. Oxnard School District Board of Trustees, 386 F.
Supp. 539 (C.D. Cal. 1974), on remand from, 488 F.2d 577 (9th
Cir. 1973).

32 Brice v. Landis, 314 F. Supp. 94 (N.D. Cal. 1969) (14th
Amendment violation).

33 See Kelsey v. Weinberger, supra, 498 F.2d at 704 n. 19 (HEW
determination of violation of Emergency School Aid Act noted).

34 See, Brown v. Weinberger, supra, 417 F. Supp. at 1224 (vio
lation of Title VI noticed by HEW).

35 See, Brown v. Weinberger, supra, 417 F. Supp. at 1223 (viola
tion of Title VI noticed by HEW).

36 See, Brown v. Weinberger, supra, 417 F.Supp. at 1224 (viola
tion of Title VI noticed by HEW).

14a

Appendix B

(Pajaro Valley),37 Desert Sands,38 Bakersfield,39 Berkeley,40
and Redwood City (Sequoia).41 In addition, school sys
tems in Los Angeles,42 San Francisco,43 San Diego,44 San
Jose,46 Pasadena,46 Delano,47 San Bernardino,48 and Santa

37 Id.
38 Id.
39 See, Cen ter for N ational P olicy R ev iew , J ustice D elayed ,

HEW and N orthern S chool D esegregation 108 (1974) (viola
tion of Title VI noticed by H E W ).

40 Id.; see also, U .S . Com m , on Civil R ig h ts, F ulfillin g th e
L etter and Spirit of th e L aw 50-54 (1976) (discussion of Berke
ley’s voluntary desegregation effort).

41 See, Center for N ational P olicy R ev iew , J ustice D elayed ,
HEW and N orthern S chool D esegregation 108 (1974) (viola
tion of Title VI noticed by HEW).

Also, the State Department of Education agreed to remedy dis
proportionate representation of Mexican-American children in
classes for educable mental retarded classes by a consent decree
in Diana v. State Board of Education, N.D. Cal. Civ. Aet. No.
C-70-37 REP, stipulation dated June 18, 1973.

42 Crawford v. Board of Education, 17 Cal. 3d 280, 130 Cal.
Rptr. 724, 551 P.2d 28 (1976).

43 See, San Francisco Unified School District v. Johnson, 3 Cal.
3d 937, 943, 92 Cal. Rptr. 309, 311, 479 P.2d 669, 671 (1971)
(en banc), cert, denied, 401 U.S. 1012 (1971).

44 People ex rel. Lynch v. San Diego Unified School District, 19
Cal. App. 3d 252, 96 Cal. Rptr. 658 (Ct. App. 1971), cert, denied,
405 U.S. 1016 (1972).

45 Carlin v. San Jose Unified School D istric t,------ Cal. App.
Supp. 3d ----- , ------ Cal. Rptr. ----- (Super. Ct., County of San
Diego, No. 303800, filed March 9, 1977).

46 Jackson v. Pasadena City School District, 59 Cal.2d 876, 31
Cal. Rptr. 606, 382 P.2d 878 (1963) (en banc).

47 Pena v. Superior Court, 50 Cal. App. 3d 694, 123 Cal. Rptr.
500 (Ct. App. 1975).

48 NAACP v. San Bernardino City Unified School District, 17
Cal. 3d 311, 130 Cal. Rptr. 744, 551 P.2d 48 (1976).

15a

Appendix B

Barbara49 have been found in violation of State school
segregation and racial imbalance prohibitions. While nec
essarily an estimate, it appears that fully 59% of black
and 43% of all minority public school pupils in 1970 at
tended schools in districts that have been found in viola
tion of federal or State laws prohibiting school segre
gation.50 I t also should be noted that a substantial propor
tion of California’s black population received some part of
its schooling under de jure segregation conditions in the
southern states.61

Moreover, the recent school desegregation decisions in
dicate that California has not fully dismantled its historic
separate school system, which has been characterized as a
“classic case of [the] de jure segregation involved in Brown
v. Board of Education, 347 U.S. 483, relief ordered, 349
U.S. 294,” Guey Heung Lee v. Johnson, 404 U.S. 1215, 1215-

49 See, Santa Barbara School District v. Superior Court, 13 Cal.
3d 315, 319, 118 Cal. Rptr. 637, 642, 530 P.2d 605, 609-610 (1975)
(en banc).

50 Statistics derived from enrollment statistics by school district
and projected universe statistics for all California districts in U.S.
D epartm ent of H ea lth , E ducation and W elfare, Office of
Civil R ig h ts, D irectory of P ublic E lem entary and S econdary
S chools in S elected D istricts, E nrollm ent and S taff by
R acial/ E th n ic Groups, F all 1970 (1972).

61 Fully 42% of California’s black population was born in the
South, see U.S. Bureau of the Census, 1970 Census of Population,
Series PC(2)-2A, State of Birth 55, 61 (1973) ; see also U. S. Bu
reau of the Census, Current Population Deports, Series P-23, No.
46; The Social And Economic Status of the Black Population in
the United States, 1972 at 12 (1973). Extraordinary black migra
tion to California, principally from the South, during and after
the Second World War. resulted in the black population multiply
ing by 11.3 times from 1940 to 1970, U. S. B ureau of t h e Ce n su s ,
H istorical S tatistics of th e U nited S tates, Colonial T im es to
1970, P art I 25 (1976). In the same period, the white population
increased by only 2.7 times).

16a

Appendix B

1216 (1971) (Mr. Justice Douglas, Circuit Justice).62 Soon
after the first public “colored school” was opened in San
Francisco for black children, California’s education law
was formally amended in I86053 to permit separate schools
for the education of “Negroes, Mongolians and Indians.” 54
The constitutionality of the provision subsequently was
upheld, Ward v. Flood, 48 Cal. 36 (1874),55 but the statute
was repealed in 188056 after the closing of separate black
schools in California’s larger cities for reason of economy.67
However, recalcitrant districts continue to separate black
school children,68 and systemic segregation continued into
the 20th century.59 The most common means of segrega
tion has been through manipulation of student attendance
zones, school site selection and neighborhood school pol-

52 In Guey Heung Lee, Mr. Justice Douglas denied a request by
Americans of Chinese ancestry to stay a school desegregation plan
for San Francisco, observing that, “ [sjchools once segregated by
State action must be desegregated by State action, at least until
the force of the earlier segregation policy has been dissipated,” id.
at 1216.

The history of school segregation in California is reviewed in
C. WOLLENBERG, ALL DELIBERATE SPEED, SEGREGATION AND EX
CLUSION in California S chools, 1855-1975 (1976) and I. H e n
drick , Th e E ducation of N on-W h ites in California , 1849-1970
(1977). Pertinent sources and studies are cited. See also, M.
W einberg , A Ch anc e to L ea rn (1977).

53 1860 Cal. Stats., c. 329, §8; see also, 1863 Cal. Stats., c. 159.
§68.

64 See, W ollenberg, supra, at 10-14.
55 Ward v. Flood was later cited with approval in Plessy v. Fer

guson, 163 U.S. 537, 545 (1896).
66 General School Law of California, §1662 at 14 (1880).
57 See, C. W ollenberg , supra, a t 24-26.

58 See, Wysinger v. Croohshank, 82 Cal. 588, 23 P. 54 (1890).
69 See H endrick , supra, at 78-80, 98-100.

17a

Appendix B

icy.60 Following unsuccessful efforts to exclude Chinese,61
Japanese62 and Indian children63 from public education
altogether, specific statutory authority was created for the
establishment of separate schools for Chinese, Japanese
and Indian children.64 The California Education Code
provided:

8003. Schools for Indian children, and children of
Chinese, Japanese, or Mongolian parentage: Estab
lishment. The governing board of any school district
may establish separate schools for Indian children,
excepting children of Indians who are wards of the
United States Government and children of all other
Indians who are descendants of the original Amer
ican Indians of the United States, and for children
of Chinese, Japanese, or Mongolian parentage.

8004. Admission of children into other schools.
When separate schools are established for Indian chil
dren or children of Chinese, Japanese, or Mongolian
parentage, the Indian children or children of Chinese,
Japanese, or Mongolian parentage shall not be ad
mitted into any other school.”

60 See, id., at 100, 103-106; see, e.g., Spangler v. Pasadena City
Board of Education, 311 F. Supp. 501 (C.D. Cal. 1970). Cf. Keyes
v. School District No. 1, 413 U.S. 189, 191-194 (1973).

61 See, e.g., Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885).
62 See, e.g., Aoki v. Deane, discussed in W ollenbekg, supra, at

48-68.
63 (See, e.g., Anderson v. Mathews, 174 Cal. 537, 163 P. 902

(1917) ; Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926
(1924).

64 1885 Cal. Stats., c. 117, §1662 (Chinese); 1893 Cal. Stats.,
c. 193, §1662 (Indians); 1921 Cal. Stats., c. 685, §1 (Japanese).
The 1893 Indian provision was amended in 1935, see infra, at p.
18a, n. 67. See generally, W ollenberg, supra, at 28-107; H e n
drick, supra, at 11-59.

18a

Appendix B

These provisions were not repealed until 1947,65 see Guey
Heung Lee v. Johnson, supra, 404 U.S. 1215.

The repeal of California school segregation statutes
seven years before this Court’s invalidating decision in
Brown v. Board of Education, supra, was precipitated by
Mendez v. Westminster School District, 64 F. Supp. 544
(C.D. Cal. 1946), affirmed, 161 F.2d 744 (9th Cir. 1947)
(en hanc), involving yet another racial minority. As was
true of the southwestern states generally, see Keyes v.
School District No. 1 , 413 U.S. 189, 197-198 (1973), de jure
public school segregation of Mexican-American school chil
dren was tolerated by the State.66 While California law
did not expressly sanction separate schools, state adminis
trative authorities construed the term “Indian” in the
school segregation law to include Mexican-Americans.67
Mendez v. Westminster School District, supra, held that
“the general and continuous segregation in separate schools
of the children of Mexican ancestry from the rest of the
elementary school population” in four Orange County dis-

65 1947 Cal. Stats., c. 737, §1.
66 See, H endrick , supra, at 60-70, 81-82, 89-92; W ollenberg ,

supra, at 109-118.
67 California’s Attorney General was of the view that, “the

greater portion of the population of Mexico are Indians, and when
such Indians migrate to the United States, they are subject to the
laws applicable generally to other Indians.” 22 California D e
pa rtm ent op J u stic e , Opin io n s op t h e A ttorney Gen er a l ,
Opinion 6735a (January 23, 1930) 931-932 (1930). The legislature
then amended the separate school law to exclude from coverage
“children of Indians who are wards of the United States Govern
ment and children of all other Indians who are descendants of
the original American Indians of the United States,” 1935 Cal.
Stats., c. 488, §§1, 2. As a result, most American Indians were ex
cluded from coverage but Mexican-Americans included, see, H e n
drick , supra, at 87; W einberg , supra, at 166.

19a

Appendix B

tricts was impermissible under the Fourteenth Amend
ment. As was the case with the other racial minorities,68
segregation of Mexican-American children in public schools
was part and parcel of general state-imposed racially dis
criminatory policies and practices.68

The 1940’s and the 1950’s witnessed an accelerated rate
of segregation as a result of rapid in-migration of minor
ity groups and the actions of districts in drawing school
attendance areas.70 Thus, in the State Department of Edu
cation’s first statewide survey of racial distribution in
school districts in 1966, it was concluded that, “despite
efforts to implement the policies of the State Board of
Education and the progress made by the Department of
Education, the task of eliminating segregation and pro
viding equal educational opportunities remains formid
able.” 71 As the recent cases decided in the decade since
demonstrate, supra, “the force of the earlier segregation
policy has [not] been dissipated,” Guey Heung Lee v.
Johnson, supra, 347 U.S. at 1216.

Studies have documented some of the deleterious effects
of this educational deprivation. See, e.g., G overnor’s Com
m issio n on t h e Los A ng eles B iots, V io lence in t h e C ity
49 et seq. (1965); Califo rnia L eg islature , A ssem bly P er-

68 See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) ; Oyama
v. California, 332 U.S. 633 (1948) ; Takahashi v. Fish and Game
Commission, 334 U.S. 410 (1948).

69 See, e.g., Lopez v. Seccomie, 71 F. Supp. 769 (S.D. Cal. 1944)
(exclusion from municipal park and swimming pool) ; Perez v.
Sharp., 32 Cal. 2d 711, 198 P.2d 17 (1948) (miscegenation).

70 See, H en dr ick , supra, at 104-106; cf., Romero v. Weakley, 226
F.2d 399 (9th Cir. 1955).

71 California S tate D epartm ent of E ducation , R acial and
E t h n ic S urvey of California’s P ublic S chools, F all 1966, iii
(1967),

20a

Appendix B

MANENT SuBCOM. ON POSTSECONDARY EDUCATION, UNEQUAL

A c c e ss to C o lleg e (1975). See generally U.S. C iv il E ig h t s
C o m m is s io n , M e x ic a n A m e r ic a n E d u c a t io n S t u d y , R e p o r t s

I—VI (1971-1974) (comprehensive study of Mexican-Amer
ican public school segregation in the southwestern states,
including California). “A predicate for minority access
to quality post-graduate programs is a viable, coordinated
. . . higher education policy that takes into account the
special problems of minority students.” 72 I t was there
fore appropriate for the University of California-Davis
medical school in framing its admissions policies “to con
sider whether . . . educational requirement[s] ha[ve] the
‘effect of denying . . . the right [to public higher ed
ucation] on account of race or color’ because the State
or subdivision which seeks to impose the requirement [s]
has maintained separate and inferior schools for its
[minority] residents,” Gaston County v. United States,

72 Adams v. Richardson, 480 F.2d 1159, 1165 (D.C. Cir. 1973).
In Adams, the D. C. Circuit analyzed the requirements of Title VI
for State systems of higher education, and concluded that,

“The problem of intergrating higher education must be dealt
with on a state-wide rather than a school-by-school basis.10
Perhaps the most serious problem in this area is the lack of
state-wide planning to provide more and better trained mi
nority group doctors, lawyers, engineers and other profes
sionals. A predicate for minority access to quality post grad
uate programs is a viable, coordinated state-wide higher edu
cation policy that takes into account the special problems of
minority students.

10 It is important to note that we are not here discussing
discriminatory admissions policies of individual institutions.
. . . This controversy concerns the more complex problem of
of system-wide racial imbalance.”

Id, at 1164-1165. In the next section, we show that the State of
California has done precisely this, viz. formulated a state-wide
higher education policy that seeks to overcome discrimination at
lower levels of public education.

21a

Appendix B

395 U.S. 285, 293 (1969). Oregon v. Mitchell, 400 U.S. 112,
1333 (1970).

2. California’s Postsecondary Effort to Overcome the
Effects of Racial Segregation at Lower Levels of
Public Education

The entire public higher education system of the State
of California is under a duty imposed by state law to
“ [address] and overcomfe] . . . ethnic . . . underrepre
sentation in the makeup of the student bodies of insti
tutions of public higher education.” 78 This deliberate
State policy sanctions the race-conscious admissions pro
gram of the University of California-Davis medical
school.74

In 1960, California’s Master Plan for Higher Education
stipulated that up to two percent of the undergraduate
body of the University of California, the California State
University and Colleges, and the California Community
Colleges be admitted as exceptions to the general admis
sion requirements.75 Pursuant to this authority the Uni
versity of California in 1964-65, and the State Colleges

73 California Assembly Concurrent Resolution No. 151, 1974 Cal.
Stats., Res. c. 209.

74 See, e.g., California P ostsecondary E ducation Co m m ission ,
P l a n n in g for P ostsecondary E ducation in California : A F ive
Y ear P la n U pdate 33, n.* (1977).

75 California L egislature, A ssem bly , A Master P la n for
H igher E ducation in California, 1960-1975 p. 12 (1960). The
Master Plan was approved by the State Board of Education and
the Regents of the University of California December 18, 1959, id.
at 6. The Master Plan was formulated pursuant to authority con
ferred by the legislature, 1959 Cal. Stats., Res. c. 160.

22a

Appendix B

in 1966-196776 began to establish various undergraduate
“Equal Opportunity Programs” to increase opportunities
for “socio-eeonomically disadvantaged” students77 through
recruitment, tutoring, financial aid, etc.78 in order “to re-

76 The California Community Colleges instituted its program in
1969-1970, infra.

77 “Initially, under the terms of the 1960 Master Plan, the
number of authorized exceptions to the basic state college and
University admissions rules were limited to the equivalent of
2% of the number of applicants expected to be admitted as
freshmen and as transfer students. The figure of 2% was
recommended by the Master Plan Survey Team without any
particular justification, except that it would provide some re
lease from the basic rule in the case of athletes and others
whom the state colleges and University might wish to admit.

“As the pressure to admit more disadvantaged students be
gan to increase, the pressure to admit a greater number of
exceptions also increased. A careful examination of the way
the campuses were actually using the allotted 2% revealed, to
no one’s surprise, that it was being used primarily for ahtletes
and others with special talents or attributes which the cam
puses wanted. For 1966 it was found that among the freshmen
admitted as exceptions by both segments, less than 2 of 10
could be termed disadvantaged. And the figure was less than
1 in 10 for those admitted to advanced standing. In the follow
ing year, 1967, as pressure continued to mount for the admis
sion of disadvantaged students, these figures began to show
some improvement, but the number of exceptions who were
also disadvantaged remained well below 50%.”

California L egislature, J oint Com . on H igher E ducation , T h e
Ch allenge of A ch ievem ent : A R eport On P ublic A n d P rivate
H igher E ducation I n California 77 (1 9 6 9 ).

78 California P ostsecondary E ducation Co m m ission , P l a n
n in g F or P ostsecondary E ducation I n Ca l ifo r n ia : A F ive
Y ear P la n U pdate , 1977-1982, 32-34 (1977) describes the affirma
tiv e action and rela ted program s of the three branches o f Califor
n ia ’s h igher education sy s te m :

“University of California: In 1964, the University of Cal
ifornia established an Educational Opportunity Program
(EOP) designed to increase the enrollment of disadvantaged
students at the undergraduate level. Supported by the Uni-

23a

Appendix B

adjust some of the past practices which have contributed
to the problems of ‘minority and disadvantaged’ popula
tions” and “to attack one of the root causes of social

versity’s own funds and those from federal financial aid pro
grams, this program has grown from an enrollment of 100
students and a budget of $100,000 in 1965, to an enrollment
of over 8,000 students with a budget in excess of $17 million,

“Dissatisfied with the growth in minority enrollments, the
University in 1975 initiated an expanded Student Affirmative
Action program to supplement the activities of campus
EOPs. . . .

# * #

“The University also has initiated a variety of programs at
the graduate and professional level to increase the enrollment
of students from underrepresented groups. Generally, these
programs include special recruitment efforts and academic
support services. As a result, the enrollment of Black and
Chicano students at the graduate level increased from 3 per
cent in 1978 to 10.7 percent in 1972. Since then, Chicano
graduate enrollments have continued to increase but Black
graduate enrollments have declined.

“Finally, the University is authorized to admit up to 4 per
cent of its entering students under a special program which
provides for the admission of students who demonstrate po
tential for success but do not fully meet the regular entrance
requirements.

“California State University and Colleges: Approximately
$5.5 million in State funds were allocated to the California
State University and Colleges in 1974-75 for its Educational
Opportunity Program, which served 13,585 students that year.
For 1976-77, the State University projects that it will serve
19,439 students with a total of $10,182,138 in State appropria
tions ($6,129,041 in grants and $4,053,097 in support services).
EQP funds provide not only financial aid, but also a number
of student support services such as personal and academic
counseling. In addition, the State University is experimenting
with alternative admissions standards on several campuses.
The State University system also is authorized to admit up to
4 percent of its entering freshmen class in exception to reg
ular admission requirements, with a similar percentage for
lower division transfer students. . . .

“California Community Colleges: Extended Opportunity
Programs and Services of the California Community Colleges

24a

Appendix B

inequality—the lack of education.” 79 The systematic un
derrepresentation of minority groups at successive levels
of California public education was cited as the rationale
for the programs.80 Reviewing the programs in 1966, the

reached approximately 37,000 students in 1974-75 with a State
appropriation of $6.7 million. For 1976-77, those funds were
increased to $11.4 million. The EOPS program was the re
sult of specific legislation (SB 164, 1969) which identified the
unique purposes for allocating State funds in this area. The
Community Colleges report that the State dollars are put at
the disposal of students either through student support ser
vices (such as academic and personal counseling, tutoring,
and financial aid counseling), or through direct grants and
work/study programs.”

Compare California Legislative, J oint Com. of H igher E du
cation, The Challenge of A chievement : A R eport On P ublic
and P rivate H igher E ducation in California 65-80 (1969);
California Legislature, J oint Com. on H igher E ducation, K.
Marttn , Increasing Opportunities F or D isadvantaged S tu
dents, P reliminary Outline (1967).

79 California Coordinating Council F or H igher E ducation,
H . K itano & D . M iller , A n A ssessm en t of E ducational Oppor
t u n it y P rograms in California H igher E ducation 2 (1 9 7 0 ).

80 See, e.g., California Legislature, Joint Com. on Higher Edu
cation, The Challenge of Achievement, supra, at 66 (Table 6.1) :

Racial and E thnic Distribution of E nrollment for California P ublic Schools
and Public H igher Education, F all 1967

Chinese,
Spanish Japanese, American Other Other

Level of Enrollment Surname Negro Korean Indian Nonwhite White

Elementary
Grades (K-8) ....... .... 14.4% 8.6% 2.1% •3% • 7% 73.9%

High School
Grades (9-12) ..... 11.6 7.0 2.1 .2 .5 78.6

All Grades, K-12 ..... 13.7 8.2 2.3 .3 .7 75.1
Junior Colleges . ... 7.5 6.1 2.9 .1 .8 82.6
California

State Colleges .. 2.9 2.9 1.9 .7 — 90.1
University of

California* ........... .7 .8 4.6 .2 — 93.7

Excludes Berkeley Campus.

25a

Appendix B

California Coordinating Council on Higher Education81
advised higher education bodies “to explore ways of ex
panding efforts to stimulate students from disadvantaged
situations to seek higher education” 82 and, as part of that
effort, directed that consideration be given to expanding
the two per cent exception by an additional two per cent
to accommodate disadvantaged students not otherwise
eligible.88 Two years later, the Council recommended, and
the University and State Colleges accepted an expansion
of the programs by raising the ceiling to four per cent,
with at least half the exceptions reserved for disadvantaged
students.84 Criticism of the exception as unduly narrow,
however, continued.86 After further study,86 the California

81 The Council was renamed the California Postsecondary Edu
cation Commission.

82 California Coordinating Council F or H igher E ducation,
K. M ar ty x , I ncreasing Oppo rtunities in H igher E ducation F or
D isadvantaged S tu d e n ts , supra at 7 (1 9 6 6 ).

83 Id,

84 See, California L egislature, J oint Com. on H igher E duca
tio n , T h e Ch allenge of A c h ie v e m e n t : A R eport on P ublic
and P rivate H igher E ducation in California , supra, 78.

85 For instance, the Joint Committee on Higher Education’s
report, id ., criticized the four per cent ceiling as “arbitrary” and
limiting, and suggested a ten per cent ceiling that would permit
“a real effort on the part of the two four-year segments to expand
opportunities for disadvantaged students.” The report also called
for a general reappraisal of California higher education policies
and stated that:

“To many institutions, in the name of maintaining stan
dards, have excluded those who would benefit most from fur
ther education. For these reasons we believe that current ad
missions policies among California’s public institutions of
higher education should be very carefully and thoroughly
reexamined.”

Id. at 80.
(See footnote 86 on following page.)

26a

Appendix B

Legislature enacted Assembly Concurrent Resolution No.
151 (1974) to provide, in pertinent part, that:

“W hereas, The Legislature recognizes that certain
groups, as characterized by sex, ethnic, or economic
background, are underrepresented in our institutions
of public higher education as compared to the propor
tion of these groups among recent California high
school graduates; and

“■Whereas, I t is the intent of the Legislature that
such underrepresentation be addressed and overcome
by 1980; and

“W hereas, I t is the intent of the Legislature that
this underrepresentation be eliminated by providing
additional student spaces rather than by rejecting any
qualified student; and

86 “In the 1960 Master Plan for Higher Education, California
committed itself to provide a place in higher education to
every high school graduate or eighteen-year-old able and mo
tivated to benefit. California became the first state or society
in the history of the world to make such a commitment. We
reaffirm this pledge.

# * #

“Our achievements in extending equal access have not met
our promises. Though we have made considerable progress in
the 1960’s and 1970’s, equality of opportunity in postsecondary
education is still a goal rather than a reality. Economic and
social conditions and early schooling must be significantly im
proved before equal opportunity can be realized. But there is
much that can be done by and through higher education.”

California L egislature, J oint Com. On the Master P lan F or
H igher E ducation, Report 33, 37 (1973). The report recom
mended that, inter alia, “Each segment of California public higher
education shall strive to approximate by 1980 the general ethnic,
sexual and economic composition of the recent California high
school graduates,” at 38, and is the principle legislative history of
Assembly Concurrent Resolution No. 151.

27a

Appendix B

“W hereas, I t is the intent of the Legislature to com
mit the resources to implement this policy; and

“W hereas, It is the intent of the Legislature that
institutions of public higher education shall consider
the following methods for fulfilling this policy:

(a) Affirmative efforts to search out and contact
qualified students.

(b) Experimentation to discover alternate means
of evaluating student potential.

(d) Improved counseling for disadvantaged stu
dents ;

now, therefore, be it
“Resolved, by the Assembly of the State of Califor

nia, the Senate thereof concurring, That the Regents
of the University of California, the Trustees of the
California State University and Colleges, and the
Board of Governors of the California Community Col
leges are hereby requested to prepare a plan that will
provide for addressing and overcoming, by 1980,
ethnic, economic, and sexual underrepresentation in
the makeup of the student bodies of institutions of
public higher education as compared to the general
ethnic, economic, and sexual composition of recent
California high school graduates . . .”

“In adopting Assembly Concurrent Resolution 151 (1974)
the Legislature acknowledged that additional effort by
colleges and universities is necessary to overcome under-

28a

Appendix B

representation of ethnic minorities and the poor,” C alifor
n ia L e g islature , A sse m b l y P e r m a n e n t S u b c o m . on P ost
secondary E d u c a t io n , U n e q u a l A ccess T o C ollege 1
(1975).

California’s public higher education affirmative action
effort has been predicated on the need to increase educa
tional opportunities of persons disadvantaged by financial,
geographic, academic and motivational barriers.87 The
documented effect of such artificial barriers to exclude
many disadvantaged students, particularly minority stu
dents, from higher education in California was the spur
to affirmative action.88

Moreover, it is evident that individuals of low-income
minority groups suffer from double discrimination.89
California’s public higher education system has been char
acterized as “inherently racist because socioeconomic and

87 California Coordinating Council F or H igher E ducation ,
H. K itano & D . M iller, A n A ssessm ent of E ducational Op
po rtunity P rograms I n California H igher E ducation , s u p r a ,

at 9 ; California L egislature, J oint Comm ittee on H igher E du
cation , K . M ar ty n , I ncreasing Oppo rtunities F or D isadvan
taged S tu d e n ts , P relim inary Ou t l in e , s u p r a ; California Co
ordinating Co uncil F or H igher E ducation . K . M ar ty n , I n
creasing Oppo rtunities I n H igher E ducation F or D isadvan
taged S tu d e n ts , s u p r a , a t 10-11.

88 S e e , e . g . , California L egislature, J oint Com . on H igher
E ducation , K. Mar ty n , I ncreasing Oppo rtun ities F or D isadvan
taged S tu d e n ts , P relim inary Ou t l in e , s u p r a , a t 3-14; Califor
n ia L egislature, J oint Com . on H igher E ducation , T h e Ch al
lenge of A ch ievem ent : A R eport on P ublic and P rivate
H igher E ducation in California , s u p r a , at 66-67; California
L egislature, A ssem bly P er m an ent S ubcom . on P ostsecondary
E ducation , U nequal A ccess T o College, s u p r a ; California
P ostsecondary E ducation Co m m ission . E qual E ducational Op
portunity I n California P ostsecondary E ducation : P art I 4-6,
A p p en d ix B at B - l— B - l l (1 9 7 6 ).

89 S e e , e . g . , California L egislature, J oint Com . on t h e M aster
P lan F or H igher E ducation , R eport, s u p r a , at 37-38.

29a

Appendix B

cultural conditions in the early experience of minority
persons leave them unable to measure up to the admissions
standards of the four-year segments.” 90

“ . . . [0]ne of the most serious blocks to participa
tion in higher education for minority students occurs
in the secondary educational system. Students from
[black and Mexican-American] minority groups tend
to be systematically underrepresented at each succes
sive level of educational attainment.” 91

“The importance of the high school experience on the
[minority] student’s opportunity to attend college cannot
be too heavily emphasized.” 92 Thus, while the proportion
of high school seniors eligible for entrance into the Uni
versity of California and State University and Colleges
(on the basis of grades and test scores) increases with
family income for all students, the proportion of minority
seniors is consistently lower.93 The percentage of eligible

90 Id., at 47.

91 California Coordinating Council F or H igher E ducation,
H. K itano & D. Miller, A n A ssessment of E ducational Op
portunity P rograms in California H igher E ducation, supra,
a t 3.

92 California Legislature, J oint Com. on the Master P lan
F or H igher E ducation, K. Lopez & D. E nos, Chicanos and P ub
lic H igher E ducation in California 14 (1972). This report is
one o f a series that analyzes problems and available affirmative
action efforts from the perspective of various minority groups. See
also, California Legislature, J oint Com. on the Master P lan
F or H igher E ducation, K. Y oskioka, A sian-A mericans A nd P ub
lic H igher E ducation I n California (1973); California Legis
lature, J oint Com. on the Master P lan F or H igher E ducation,
N airoibi Research I n st ., B lacks and P ublic H igher E ducation
in California (1973L

03 California Coordinating Council F or H igher E ducation,
H. K itano & D. Miller, A n A ssessment of E ducational Op-

30a

Appendix B

minority race seniors who actually matriculate also is a
fraction of the percentage of eligible white seniors.84 Such
trends persist in the college and post-college careers of
minority students.95

In a comprehensive review of the State of California’s
higher education affirmative action programs, the Califor
nia Postsecondary Commission concludes that more rather
than less is required, E qual E ducational Opportunity I n-
California P ostsecondary E ducation : P art I I (publica
tion pending).

po rtunity P rograms in California H igher E ducation , supra,
at 4-5; California L egislature, A ssem bly P er m a n en t S ubcom .
on P ostsecondary E ducation , U nequal A ccess to College, su
pra, at 7 et seq.; California P ostsecondary E ducation Comm is
sio n , E qual E ducational Oppo rtun ity in California P ostsecon
dary E ducation : P art I, supra, at 5-6.

94 Id.
95 California Coordinating Council F or H igher E ducation,

H. K itano & D. Miller, A n A ssessment of E ducational Op
portunity P rograms in California H igher E ducation, supra,
at v ii i; au th orities c ited supra at p. 29a, n. 92.

31a

APPENDIX C

Morbidity and Mortality Statistics
of the Black Population

The life expectancy of white males is six years longer
than black males; white females are expected to live 5.4
more years than black females.96 There is approximately
a 200% difference in the infant mortality of whites and
non-whites.97 Maternal deaths among non-whites are 3V2
times that of whites.98 The fetal death rate for non-whites
is 1% times greater for blacks than for whites and the gap
between the two groups was greater in 1974 than in I960.99
According to statistics gathered in 1973, among children
aged 1 to 4, minority children die at a rate 70% higher

96U.S. B ureau op the Census, S tatistical A bstract of the
U nited S tates, 1976, supra at 60. (Statistic is as of 1974).

97 Id. at 64. This statistic represents death in infants under 1
year old, exclusive of fetal deaths. The incidence of all non-white
deaths was 28.5 per 1000 live births; infant mortality in 1971
among blacks 30.3 per 1000 live births; for whites 17.1 deaths per
live births. A merican P ublic H ealth A ssociation, Minority
H ealth Chart B ook 36 (1974).

98 U .S. B ureau op the Census , Statistical A bstract op the
U nited S tates, 1976, id.

99 Id. Neo-natal death (death between birth and 28 days) per
1,000 live births were as follows:

Male Female
blacks 23.3 18.5
whites 14.8 11.2

Death of post-natal infants per 1000 (death between 28 days and
1 year) in 1971 were:

Male Female
blacks 10.0 8.7
whites 4.5 3.5

Minority Health Chartbook, id. at pp. 39-40. Chart is based on
unpublished data from Division of Vital Statistics, National Center
for Health Statistics, Dept, of HEW, 1974.

32a

Appendix C

than w hite; in the 5 to 9 age group minority children die
at a rate 40 percent higher than white children,100

Blacks also suffer from serious disease at a far higher
rate than whites. The incidence of tuberculosis among
blacks is 31.4 per 100,000; among whites, it is 3.9 per
100,000.101 Diabetes and cancer of the cervix (both of which
are controllable) are three times more prevalent among
blacks.102 Three times as many blacks as whites suffer from
high blood pressure103 and when blacks do get ill, the inci
dence of death from disease far surpasses the white mor
tality rate for the same disease.104

Studies have established that illness and death among
blacks, notably fetal, infant and maternal morbidity and
mortality, are directly related to lack of health care.105

100 National Center for Health Statistics, Department of Health,
Education and Welfare, Monthly Vital Statistics Report, Summary
Report Final Mortality Statistics, 1973, Table 3,

101 Tunley, The A merican H ealth S candal 40-41 (1966).

102 Id.
108 Mills, Each One Teaches One, J ourn. B lack H ealth P er

spectives 5-10 (Aug.-Sept. 1974).
104Darity, Health and Social Problems of the Black Community,

J ourn. of B lack H ealth P erspectives (June/July 1974), Table
13, p. 46.

105 “For pregnant women, the adverse effects of chronic states
of illness induced by such diseases as syphilis, tuberculosis, and
diabetes, or resulting from poor nutritional status can be mitigated
if these conditions are identified and treated during early preg
nancy. Other adverse conditions . . . may develop later in preg
nancy or immediately before labor. For these reasons, the initiation
of prenatal care in early pregnancy and the continuous medical
supervision of the pregnant woman throughout the gestational
period are needed to ensure both the optimum development of the
fetus and the well-being of the mother.” P ublic H ealth Service,
U.S. D ept , of H ealth , E ducation & W elfare, Selected Vital
and Health Statistics in Poverty and Nonpoverty Areas of 19

33a

Appendix C

While the level of inadequate prenatal care is higher in
poverty areas than in higher income areas for all races, the
proportion of non-white women receiving no prenatal care
is greater than that of whites.106 Mothers who have had no
prenatal care are three times more likely to give birth to
infants with low birth weights,107 which is associated with
almost half of infant deaths, and substantially increases
the likelihood of birth defects.108 W ith adequate facilities

Large Cities. United, States, 1969-71. 13; See, Iba Niswander &
Woodville, Relation of Prenatal Care to Birth Weights, Major Mal
formations, and Newborn Deaths of American Indians, 8 H ealth
Services R eports, 697-701 (1973); Weiner & Milton, Demographic
Correlations of Low Birth Weight, 3 Am. J. E pidemiol. 260-272
(Mar. 1970); K essner, et al., Contrasts in Health Status, Vol. I—
Infant Death: An Analysis of Maternal Risk and Health Care
(1973).

106 Selected Vital and Health Statistics in Poverty and Non
poverty Areas of 19 large Cities, U.S. 1969-1971, Id,

107 National Center for Health Statistics, U.S. Dept, of Health,
Education and Welfare, Monthly Vital Statistics Reports, Sum
mary Report, Final Mortality Statistics 1973, p. 8.

108 National Foundation, Annual Report 1974, p. 9. See Mon
tague, P renatal I nfluences (1962).

34a

Appendix C

and doctors, the high incidence of infant and maternal
death and illness is dramatically reduced.109

109 See studies in Providence (Maternal and Child Care Service,
U.S. Department of Health, Education & Welfare, Promoting the
Health of Mothers and Children, Fiscal Year 1972, p. 6) ; Lowndes
County, Alabama, Bolivar County, Mississippi (Davis, A Decade
of Policy Developments in Providing Health Care for Low Income
Families in Haveman, B. ed., A D ecade op F ederal A nti-Poverty
P olicy: A chievements, F ailures and Lessons (1976) 47-48);
and Boston (Robertson, et al., Toward Changing the Medical Care
System: Report of an Experiment, in Haggarty, The Boundaries
of Health Care, Reprinted from Alpha Omega Honor Society,
P haros op A lpha Omega A lph a , Vol. 35, pp. 106-111 (1972)
which established that greater access to medical care resulted in
reduction of infant and maternal mortality of 50% even though
poor housing, nutrition and other incidents of poverty remained
stable in the population. See also, studies in Denver and Birming
ham discussed in Roger, The Challenge of Primary Care, in
D aedalus (Winter 1977) p. 88, where results were similar.

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Bakke v. Regents Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

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