Bakke v. Regents Brief Amicus Curiae for the Association of American Law Schools in Support of Petitioner

    JAMES M. NA8R!T, III 
ASSOCIATE-COU N S El

I n  th e

Supreme Court of tfje Untteb States
October T er m , 1976

N o .  7 6 -8 1 1

T he Regents of the  U niversity  of Ca lifornia ,
Petitioner,

vs.
A llan Rakke ,

Respondent.

BRIEF AMICUS CURIAE 
FOR THE ASSOCIATION OF 
AMERICAN LAW SCHOOLS 

IN SUPPORT OF PETITIONER

D avid E. F eller 
Law Building 
University of California 
Berkeley, California 94720

E rnest Gellhorn 
College of Law 
Arizona State University 
Tempe, Arizona 85281

T errance Sandalow  
Legal Research Building 
University of Michigan 
Ann Arbor, Michigan 48104

Of Counsel

A. K e n n e th  P ye
Allen Building
Duke University
Durham, North Carolina 27707

F rancis A. A llen  
Legal Research Building 
University of Michigan 
Ann Arbor, Michigan 48104

Robert B. M cK ay 
36 West 44th Street 
New York, New York 10036

Attorneys for the Association 
of American Law Schools



INDEX

Page

In terest of the Amicus .......................................................  1

Sum m ary of A rgum ent ...................... ..............................  3

Introduction .........................................................................  5
I. Without Minority Admission Programs Minority Stu­

dents Would Be Excluded From American Law 
Schools ............................................................................  8
A. The Number of Qualified Applicants Exceeds The

Number of Openings in Law School ......................  9
B. Numerical Predictors Indicate Which Applicants

Are Most Likely To Succeed In Law School .........  12
C. The Admissions Process Is Designed To Identify

Which Of The Qualified Applicants Should Be Ad­
mitted .....................................................................   17

D. The Use of Race as a Factor In The Admissions Pro­
cess Is Necessary If There Are To Be A Substantial 
Number of Minority Students In Law School . . . .  21
1. The Special Admissions Programs .....................  22
2. Minority Students Would Be Almost Eliminated

From Law School Without Special Admissions 
Programs .............................................................  27

3. No Reasonable Alternatives To Special Admis­
sions Programs Have Been Proposed ............... 32

II. Special Minority Admissions Programs Serve Compel­
ling Social Interests ...................................................... 39
A. The Need For More Minority Lawyers is Critical 42

1. The Public Role of the Legal Profession ............ 43
2. Serving the Legal Needs of Minority Com­

munities .............................................................  47
B. A Racially Diverse Student Body Is Important For A

Sound Legal Education .............................................  49
C. Minority Group Lawyers Will Contribute To The

Social Mobility of Racial Minorities .........................  53



11

D. Special Admissions Effectively Respond To The
Need For More Minority Lawyers ..........................  54
1. Success at School ................................................. 56
2. Success in Passing the Bar ................................ 59
3. The Argument on Stigmatization ....................  61

III. Special Admissions Programs Are Fully Consistent
With The Constitution ....................................................  63

Conclusion ..............................................................................  66



Ill
TABLES OF AUTHORITY

Table of Cases: Pages

Brown v. Board of Education, 347 U.S. 483 (1954) ....... 4, 39, 54
Califano v. Webster, 97 S.Ct. 1192 (1977) ............................  65
Cipriano v. City of Houma, 395 U.S. 701, 704 (1969) .........  63
DeFunis v. Odegaard, 416 U.S. 312, 320 (1974) . . .  .8, 10, 32, 47
Dred Scott v. Sanford, 19 How. 393 (1857) ..........................  39
Dunn v. Blumstein, 405 U.S. 330 (1972) .............................. 63
Strauder v. West Virginia, 100 U.S. 303 (1880) ................... 39
Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1, 16(1971)    52,64
Sweatt v. Painter, 339 U.S. 629, 634 (1950) ........................  50
United Jewish Organizations of Williamsburgh v. Carey, 97

S. Ct. 996 (1977)  64,65

Other Authority:

ABA, Law Schools and Bar Admission Requirements (1950)-
(1976) ................................................................................ 58

ABA, Law Schools and Bar Admission Requirements: A Re­
view of Legal Education in the United States 42, 45
(1976) ................................................................................ 7

Altesek & Gomberg, Bachelor’s Degrees Awarded to Minority
Students 1973-1974, at 4   33

Angoff & Herring, Study of the Appropriateness of the Law 
School Admission Test for Canadian and A merican Stu­
dents, LSAC 71-1, in 2 Law School Admission Research
(1976) .......................................................................... . • • 13

Bureau of the Census, Current Population Reports, Series 
P-60, No. 103. "Money Income and Poverty Status of 
Families and Persons in the United States: 1975 and
1974 Revisions” (Advance Report 1976) ...................36, 37

Bureau of the Census, Detailed Characteristics of the Popula­
tion, Table 223 (1970) ................................................  40

Bureau of the Census, Statistical Abstract of the United
States, Table 271, at 162 (1976) ............................... . 46

California Legislative Analysis of the 1976-77 Budget Bill, 
Report of the Legislative Analyst to the Joint Legislative
Budget Committee 820 (1976) ......................................... 60

Carlson, Factor Analysis and Validity Study of the Law 
School Admission Test Battery, LSAC 70-3, in 2 Law 
School Admission Research 11 (1976) ..........................  14



IV

Carlson & Werts, Relationships Among Law School Pre­
dictors, Law School Performance, and Bar Examination
Results, LSAC 76-1, at vii (1976) .................................. 60

CLEO, Annual Report of Executive Director (1976)   60
Columbia University Bulletin, School of Law, 96-97 (1976) . 18
A. de Tocqueville, Democracy in America 329-30 (Schocken

ed. 1961)   44
Employee Selection Guidelines. 41 Fed. Reg. 51733 (Nov. 23,

 ̂ 1976) .................................................................................. 34
EEOC Guidelines on Employee Selection Procedures, 29

C.F.R. 1607.1 (1976) ........................................................ 34
Evans, Applications and Admissions to ABA Accredited Law 

Schools: An Analysis of National Data for the Class En­
tering in the Fall 1976 (Law School Admission Council
1977) ................................................  7, 28-34, 37, 38, 50, 55

Evans & Reilly, A Study of Speededness as a Source of Test 
Bias, LSAC 71-2, in 2 Law School Admission Research
111 (1976) ........................................................................  13

Evans & Reilly, The LSAT Speededness Study Revisited:
Final Report, LSAC 72-3, in 2 Law School Admission
Research 191 (1976)   13

Fleming & Poliak, The Black Quota at Yale Law School—An 
Exchange of Letters, 19 The Public Interest 44, at 45
(Spring 1970)   55

Gellhorn, The Law Schools and the Negro, 1968 Duke L.J.
1069, 1073-74 ...................................................................  43

Hart & Evans, Major Research Efforts of the Law School A d­
mission Council, in Law School Admission Research
(LSAC 1976) ..................................................................... 13

Hinds, Keynote Introduction: "The Minority Candidate and
the Bar Examination,” 5 Black L.J. 123, 124-36(1977) . 59

Hughes, McKay & Winograd, The Disadvantaged Student 
and Preparation for Legal Education: The New York
University Experience, 1970 Tol. L. Rev. 701 ...............  56

In re Griffiths, 413 U.S. 717 (1973) .......................................  63
Kaplan, Equal Justice in an Unequal World: Equality for the 

Negro—The Problem of Special Treatment, 61 Nw. U. L.
Rev. 361, 410 (1966) ........................................................ 38

Law School Admission Council, Reports of LSAC Sponsored
Research, vols. 1 & 2 (1976)   12

Linn & Winograd, New York University Admissions Inter­
view Study, LSAC 69-2, in 1 Law School Admission 547
(1976)     16

LSAT Handbook 47 (1964) .................................................... 15
Nicholson, The Law Schools of the United States 26, 217

(1958) ............................................................................  9, 10



V

1972-1973 Prelaw Handbook 153, 345 (1972) .................
1976-77Prelaw Handbook 153,375 (1976) ......................  18,
Pitcher, Predicting Law School Grades for Female Law Stu­

dents, LSAC 74-3, in 2 Law School Admission Research
555 (1976) ......................................................................

Rappaport, The Case for Law School Minority Programs, Los 
Angeles Times, Opinions Section, p. 1 (Mar. 14, 1976).. 

Redish, Preferential School Admissions and theEqualProtec- 
tion Clause: An Analysis of the Competing Arguments, 22
UCLA L. Rev. 343 (1974) ..............................................

Reilly, Contributions of Selected Transcript Information to 
Prediction of Law School Performance, LSAC 71-4 in 2
Law School Admission Research 133 (1976) .................

Reilly & Powers, Extended Study of the Relationship of 
Selected Transcript Information to Law School Per­
formance, LSAC 73-4, in 2 Law School Admission Re­
search 405 (1976) ...........................................................

Report of Minority Groups Project in AALS Proceedings 172
(1965) .............................................................................. 7,

Report on Special Admissions at Boalt Hall After Bakke, 28 J.
Legal Ed. 363 (1977) ..............................................; • • 19,

Sandalow, Racial Preferences in Higher Education: Political 
Responsibility and the Judicial Role, 42 U. Chi. L. Rev.
653,684(1975) .............................................. .................

Schrader & Pitcher, Adjusted Undergraduate Average. 
Grades as Predictors of Law School Performance, LSAC 
64-2, in 1 Law School Admission Research 291 (1976) . . 

Schrader & Pitcher, Effect of Differences in College Grading 
Standards on the Prediction of Law School Grades, LSAC 
73-5, in 2 Law School Admission Research 451 (1976).. 

Schrader, Pitcher & Winterbottom, The Interpretation of Law 
School Admission Test Scores for Culturally Deprived 
and Non-white Candidates, LSAC 66-3, in 1 Law School
Admission Research 375 (1976) .....................................

Schrader & Pitcher, The Interpretation of Law School Admis­
sion Test Scores for Culturally Deprived Candidates: An 
Extension of the 1966 Study Rased on Five Additional 
Law Schools, LSAC 72-5, in 2 Law School Admission Re­
search 227 (1976) ...........................................................

Schrader & Pitcher, Predicting Law School Grades for Black 
American Law Students, LSAC 73-6, in 2 Law School 
Admission Research 451 (1976) .....................................

55
55

13

60

63

14

14

22

, 27

52

14

14

13

13

13



VI

Schrader & Pitcher prediction of Law School Grades for Mex­
ican American and Black American Students, LSAC 
74-8,in2LawSchoolAdmissionResearch715(1976). . .  13

State Bar of California, Report of Commission to Study the
Bar Examination Process (1973)   60

Symposium, Disadvantaged Students and Legal E du­
cation—Programs for Affirmative Action, 1970 Tol. L.
Rev. 277 ............................................................................. 22

University of Virginia Record 1976-77, School of Law, 55
(1976) ................................................................................  19

Warren, Panel on "Factors Contributing to Bar Examination
Failure,” 5 Black L.J. 149-52 (1977) ..............................  60

White, Legal Education: A Time of Change, 66 A.B.A.J. 355,
356 (1976) ......................................................................... 11



I n  t h e

S u p r e m e  C o u r t  of tfje U n tte b  S t a t e s
October T er m , 1976

N o. 76-811

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

vs.
A llan Bakke ,

Respondent.

BRIEF AMICUS CURIAE 
FOR THE ASSOCIATION OF 
AMERICAN LAW SCHOOLS 

IN SUPPORT OF PETITIONER

This brief amicus curiae is filed by the Association of 
American Law Schools w ith the consent of the parties, as 
provided for in  Rule 42 of the Rules of th is Court.

IN T E R E ST  OF TH E AM IC U S
The Association of American Law Schools (AALS) has a 

membership of 132 law schools, all of which are approved by 
the American Bar Association. The purpose of the AALS is 
"improvement of the legal profession through legal educa­
tion.” It participates in  developments affecting legal educa­
tion, serves as a repository of inform ation about legal educa-



2

tion and assists in developing policy on national issues of 
legal education.

The Association’s in terest in th is case derives from the 
im pact th a t th is Court’s decision will have on legal educa­
tion and the legal profession. Although the decision of the 
court below arises from adm issions to a medical school, the 
admissions processes of law schools are sufficiently sim ilar 
to those of medical schools to be affected directly by any deci­
sion in this case. Almost all m em ber schools of the AALS 
have some form of special adm issions program  designed to 
in c rease  th e  n u m b e r of q u a lif ied  m em bers of ra c ia l 
m inorities who will en ter law school and become members of 
the bar. The decision of the court below im perils these pro­
gram s and therefore the progress made in  the la st ten  years 
to include racial and ethnic m inorities1 in the legal profes­
sion. Specifically, if th is  Court were to hold th a t professional 
schools including law schools could no longer take race into 
account in the admissions process, the resu lt would be to ex­
clude v irtually  all m inorities from the legal profession. Be­
cause of the ir im portance to the objective of achieving a m ul­
tiracial bar, we are committed to these programs. We are 
convinced th a t these carefully designed and thoughtfully 
a d m in is te re d  p ro g ram s re p re s e n t th e  only  re a lis t ic  
possibility for increasing the very small num ber of m inority 
group members in  the legal profession and th a t they are 
fully consistent w ith the Constitution.

1. Throughout this Brief, the terms "race,” "racial,” or "minorities,” are 
based upon "standard race/ethnic categories” such as those defined by the 
Equal Employment Opportunity Commission for its various information 
reports. See 41 Fed. Reg. 17601-02 (April 27, 1976). They are generally 
limited to four groups: black, Hispanic (primarily Chicano and Puerto Ri­
can), Asian (including Pacific Islanders) and American Indian (including 
Alaskan Native). There is some variance among schools about which 
groups are eligible for inclusion in their special admissions programs be­
cause of differing emphasis reflecting the concerns of their geographical 
service areas. It appears that all include blacks, either Chicanos or Puerto 
Ricans or both, and American Indians.



3

SUM M ARY OF A R G U M EN T
The imposition of a requirem ent th a t professional schools 

forego any consideration of race in m aking admissions deci­
sions would resu lt in substantially  all-white law schools. It 
is for th is reason th a t almost all accredited American law 
schools have adopted "special admissions program s” which 
give preference in admissions to blacks and members of 
other "discrete and in su la r” minorities. As a consequence, in 
a little  over a decade the law schools have increased the ir 
enrollm ent of m inority students from 700 or 1.3% (in 1964) 
to over 9,500 or 8.1% (in 1976). These special admissions 
program s have thereby sought to increase the num ber of 
lawyers from m inority groups, a num ber which is still inor­
dinately sm all a t under 2% of the entire bar.

A fter over a decade of searching, it  is clear to the law 
schools th a t there is no alternative available to them , other 
than  the use of race as a factor in admissions, if m inority 
student representation among American law students is to 
rise above a negligible level. For the s ta rk  and unalterable 
fact is th a t under today’s conditions, if indicators of academic 
potential were used by law schools as the sole basis for de­
term ining admission, "few m inority students would be ad­
m itted to law school.” Despite wishful th inking  and facile 
generalizations to the contrary concerning the means avail­
able to professional schools to increase m inority enrollm ent 
w ithout special admissions, no alternative with any prospect 
of success has been proposed. Those alternatives which have 
been suggested would be ineffective and undesirable: they 
would not resu lt in a substantial enrollm ent of m inority s tu ­
dents in  the nation’s law schools, but they would lead to an 
abandonm ent of intellectual promise and academic qualifi­
cation as the standard  by which schools determ ine w hether 
an applicant shall be adm itted.

Special admissions program s are an  in tegral p a rt of the



4

law school admissions process which is designed to provide 
the community w ith the lawyers i t  needs. Admission to law 
school is not a prize granted as a rew ard for the most deserv­
ing. Law schools are created and supported by the sta te  to 
m eet its needs for lawyers and legal services. Thus the ques­
tion which the law schools address in  the ir admissions pro­
cesses, in  the best way they can, is which among the m any 
applicants will best serve those needs of society. In th is con­
text, where m any more qualified candidates apply than  
there are places in  the schools, th a t decision has generally 
been to select those students who show the most potential to 
succeed in  law school subject to other lim itations which also 
serve the community. Thus, in addition to past (under­
graduate) grades and test scores, law schools consider an  ap­
plicant’s background as well as his residence in  deciding 
w hether to adm it him. Background is a factor in obtaining a 
diverse student body so im portant to comprehensive educa­
tion; residence is im portant to governing boards who seek 
lawyers to m eet local needs.

Reliance on race is a sim ilar lim itation used as a factor in 
the admissions process to serve the com m unity’s interests. It 
is p a rt of the com mitment, made clear by this Court in 1954 
in Brown v. Board of Education  and by Congress a decade 
la te r in  the Civil R ights Act of 1964, tow ard racial equality 
and the full participation of racial m inorities in American 
life. T hat need is as pressing and pervasive today as i t  has 
ever been: (1) lawyers play a critical, indeed a crucial role in 
our society and the inclusion of m inorities in the bar is re­
quired to achieve the ir participation in  the governance of our 
society, public as well as private; (2) the existence of race as 
an im portant social elem ent m eans th a t m inority lawyers 
are needed to serve the legal needs of m inority communities 
who will not otherwise be served as they prefer; (3) racial 
diversity is v ita l in the classroom if legal education is to be



5
effective and not isolated from the individuals and in s titu ­
tions w ith which law interacts; and (4) the opportunity to be 
a lawyer is part of a larger effort by the nation to improve 
the conditions of life of its least advantaged citizens. The 
special adm issions program s in the overwhelming m ajority 
of A m erican law schools are a direct response to these and 
sim ilar needs. Unless allowed to continue, these needs and 
the nation’s need for m inority lawyers will go unm et.

The equal protection clause of the Fourteenth  Amend­
m ent should not be construed to require th a t the law schools 
of the country abandon special admissions program s so es­
sential to achieving these compelling objectives. These pro­
gram s are aimed w ith precision a t the ir objectives of racially 
in teg rating  law schools and substantially  increasing the 
num ber of m inority lawyers. They m eet the most exacting 
constitutional standard  and are necessary if law schools are 
to serve these compelling sta te  in terests. These programs 
also support the concept of equality and give m eaning to the 
opportunity which equal protection is designed to serve.

IN T R O D U C TIO N
The purpose of this B rief is to dem onstrate a single propo­

sition: the practice of providing a degree of preference for 
blacks and other m inorities in  law school admissions is a 
necessary, and indeed the only honest method, to achieve 
ce rta in  very  im p o rtan t social objectives. S ta ted  more 
bluntly, a holding th a t the Constitution requires th a t the 
schools abjure any consideration of race as a factor in m ak­
ing adm issions decisions m ust, unless covertly circum ­
vented, resu lt in substantially  all-white schools.

The case before the Court is a medical school case. We ven­
tu re  no conclusion as to w hether the m atters which we here 
present are applicable to the same degree to medical schools.



6

But the holding of the court below, th a t none of the criteria  
used in  selecting among applicants for adm ission to medical 
school "can be related to race,” may also be equally applica­
ble to schools of law. Our assum ption, therefore, is th a t if the 
judgm ent of the court below in th is case is affirmed, the  pub­
licly-supported law schools of this country will be obliged to 
conform the ir admissions practices to the principle tha t, in 
selecting among applicants, no consideration may be given 
to race, either explicitly or by indirection.

The im position of such a requ irem en t would require  
changes in the admissions practices used by the vast major­
ity of the accredited A m erican law schools. Most of them  
have, in  one way or another, and under various nam es and 
guises, adopted "special adm issions” programs: practices 
which give preference in admissions to blacks and members 
of other "discrete and in su la r” minorities. The resu lt is th a t 
for each of those schools there can be found unsuccessful ap­
plicants, such as the p la in tiff in th is case, who rank  higher 
on the num erical adm issions criteria  used by th a t school 
than  other applicants who have been adm itted because they 
are members of a racial m inority. The object ofth is Brief is to 
dem onstrate th a t such a resu lt is the necessary consequence 
of a program  designed to m eet certain  im perative social 
needs directly related  to the purposes for which the schools 
exist and th a t there is no other reasonable method by which 
those needs can be met.

The imposition of a requirem ent th a t the admission of law 
school applicants be made w ithout consideration of race 
would v irtually  wipe out the progress th a t has been made 
toward the goals of an in tegrated  bar and society. In little 
over a decade the law schools have increased the ir enroll­
m ent of m inority students from 700 or 1.3% to over 9,500 or 
8.1%.2 The regrettable but unalterable fact is th a t under to­
day’s conditions, if indicators of academic potential w ithout



7
regard to race were used by law schools as the sole basis for 
determ ining admission, "few m inority students would be 
adm itted to law school.” T hat is the stark  conclusion of an 
exhaustive study of more than  76,000 applications to law 
school for the 1975-76 admission year th a t was confirmed by 
a separate survey of 80% of all accredited law schools. See F. 
Ev ans, Applications and Adm issions to A B A  Accredited Law  
Schools: A n  Analysis o f National Data for the Class Entering  
in the Fall 1976 (Law School Admission Council 1977) (here­
inafter Evans Report). The findings of the Evans Report are 
crucial to an understanding of w hat is a t stake in th is case. A 
detailed discussion of its findings appear a t pages 27-32, in ­
fra, following a description of the admissions process, which 
also m ust be carefully considered if these findings are to be 
fully understood. For now, we urge only a full awareness of 
the major conclusions to emerge from the Evans Report, th a t 
affirmance of the decision below would, under either exist­
ing admissions standards or any realistic alternative, ex­
clude all but a m inuscule num ber of m inority students from 
the nation’s law schools.

The dem onstration of these conclusions comprises the fol­
lowing parts. F irst, we exam ine the admissions systems used 
by American law schools today, w ithout regard to the racial 
question. This is im portant because those practices, and the 
conditions which give rise to them , are quite different from

2. The specific figures for ABA-approved law schools are:

Total
Minority
Enrollment

Total
Enrollment

1964
1976

700 (approx.) 
9,524

54,265
117,451

Source: Report of Minority Groups Project in AALS Proceedings 172 
(1965); ABA Law Schools and Bar Admission Requirements: A Review of 
Legal Education in the United States 42, 45 (1976).



8

those, fam iliar to most members of the bar, th a t existed only 
a few years ago. Second, we describe the process by which the 
practice of providing some preference to applicants of certain 
m inority groups has developed in  the context of these new 
and different admissions standards. An understanding of 
th is process dem onstrates th a t under current societal condi­
tions, conditions th a t we believe will in tim e disappear, 
there  is no feasible alternative to the use of some form of 
racial preference if the presence of a significant num ber of 
m inority students is to be achieved. Third, we show th a t the 
presence of a significant num ber of law students from these 
m inority groups serves im portant social and educational 
purposes th a t cannot be m et under today’s conditions in  any 
other way. Finally, and in  conclusion, we add a few words as 
to why we believe the  Constitution does not require th a t the 
law schools of the country abandon program s so essential to 
achieving these compelling objectives.

I. WITHOUT MINORITY ADMISSION PROGRAMS 
MINORITY STUDENTS WOULD BE EXCLUDED 
FROM AMERICAN LAW SCHOOLS

An adequate appreciation of the devastating im pact th a t 
affirm ance of the decision below would have upon m inority 
enrollm ent in law schools depends, initially , upon an under­
standing of how admissions decisions are made, the facts 
upon which they are based, and the purposes they serve. The 
failure of such understanding can lead, as in  the opinion 
below and in the dissenting opinion of Mr. Justice Douglas in 
DeFunis v. Odegaard, 416 U.S. 312, 320 (1974), to faulty  
diagnoses of the problem th a t special admissions program s 
address and to facile generalizations concerning the means 
by which it can be solved. Both opinions assum e th a t means 
exist by which law schools (or medical schools) can, by some­
how altering the ir admissions criteria, m ain ta in  substan tial



9
m inority enrollm ents w ithout consideration of race. An 
understanding of the admissions process will dem onstrate 
th a t this assum ption is based upon wishful th inking  in  ig­
norance of the facts.

There is a second reason why it  is im portant to understand 
the selection process of law schools. A tendency exists to re­
gard admission to law school as a prize to be awarded in ac­
cordance w ith some principle of desert. But the goal th a t law 
schools seek to serve in the admissions process is not th a t of 
rew arding those applicants who are most deserving; adm is­
sions are not simply handed out as aw ards for prior per­
formance. R ather, law schools exist to provide the commu­
nity  w ith the lawyers it needs to serve its many purposes. 
The question to which the schools therefore address them ­
selves, in  the best way they can, is which of the m ultitude of 
applicants to the school will best serve those needs.

A. The Number of Qualified Applicants Exceeds The 
Number of Openings In Law School

The drastic change th a t has occurred in the admissions 
processes of the law schools over the past few decades can 
best be described by dividing its  development into three 
stages. The first stage was th a t era in which there was a 
place in law school, v irtually  any law school, for everyone 
w ith m inim al credentials. Any applicant w ith a college de­
gree from an accredited institu tion , and indeed many w ith­
out, could find a place. Competence to perform as a law stu ­
dent was tested in the best possible way—by performance 
itself. Those who dem onstrated the m inim um  competence 
required by the particu lar school were passed and those who 
did not were washed out.3

3. The situation as it existed in 1948-49 is graphically described in L. 
Nicholson, The Law Schools of the United States (1958), a report based on 
136 questionnaires and inspections of 160 law schools prepared for the



10

Such a system is operable, however, only when there are 
places available in  law school sufficient to accommodate all 
those possessing the m inim al educational qualifications. 
When applications exceed the places available, some crite­
rion of selection is required. The most n a tu ra l criterion, and 
the one actually  adopted by the law schools, was probable 
success in completing the course of instruction. This is the 
second stage in the development of the admissions process, 
the stage a t which the Law School Admission Test (LSAT) 
was developed as a tool for aiding predictions as to w hether 
an  applicant, if adm itted, would be able to m eet a school’s 
m inim um  level of performance. Since the dem and for adm is­
sion as compared to the available places varies from school to 
school, different schools reached th is stage and began using 
the LSAT at different times.

W hen there are more com petent and qualified applicants 
than  there are available positions the question becomes 
which applicants, of the m any who would be likely to suc­
ceed, should be adm itted. At th is th ird  stage, reached by dif­
ferent schools a t different tim es, the demand by qualified 
applicants for adm ission to law  school far exceeds the 
num ber of available positions. All or nearly  all law schools 
are now at this stage. Thus, in 1975, there were approxi-

ABA Survey of the Legal Profession. In 1948, 87% of the applicants to the 
schools surveyed met the schools’ minimum requirements and 70% of the 
applicants were accepted. Id. at 217. Descriptions taken from three inspec­
tion reports typical of the "vast majority of schools,” were as follows:

"All qualified applicants have regularly been admitted to the law 
school in recent years.”

"The school does not attempt to screen applicants over and above 
the determination that they have complied with the minimum qual­
itative and quantitative requirements.”

"In the year 1948-49,190 students entered upon the study of law in 
this school; only 91 remained in school at the beginning of the follow­
ing year. Forty of the 190 were flunked out, and 59 others quit volun­
tarily, most of them persuaded so to do because of low grades.”

Id. at 26.



11

m ately 83,000 applicants for law school admission for the 
39,038 first-year places opened for them  in all ABA-approved 
schools th a t year. There were, in short, a t least two appli­
cants for each law school seat in the U nited S tates.4

Confronted w ith the necessity of choosing from among so 
m any fully qualified applicants, alm ost all schools attem pt 
to select, subject to the qualifications discussed below (pp. 
18-20, infra), those applicants who are most likely to perform 
best academically. The object, in other words, is no longer to 
identify those students who can earn  a C, but those who are 
most likely to earn  As and Bs.

In using th a t standard  for admission, the schools are 
guided by the assum ption th a t those who perform well in law 
school are as a general rule likely to perform well in the pro­
fession. We know, of course, th a t th is assumption is a t best 
only a rough approxim ation. Law schools are concerned 
prim arily  w ith developing intellectual qualities-—analytic 
skill, the m astery of legal concepts, and the ability to work 
im aginatively w ith those concepts—th a t are im portant in 
all the roles th a t lawyers may be called upon to perform. But 
it is plain th a t there are additional qualities th a t are also

4. White, Legal Education: A Time of Change, 66 A.B.A.J. 355, 356 
(1976) (based on LSD AS completions; the LSDAS column therein errone­
ously reports for each year the following year’s data.)

Law School Data Assembly Service (LSDAS) completions understate 
the number of college graduates applying to law school. In 1975, there 
were 133,000 LSAT administrations, 50,000 more than the number of reg­
istered applicants in LSDAS. Some of the difference is accounted for by 
"repeaters,” students taking the test for the second time. Some of the dif­
ference reflects potential applicants who were dissuaded from completing 
the application process by low scores and some applicants were not re­
quired by their law schools to register in LSDAS. This does not, however, 
convey the full dimensions of the problem confronted by individual 
schools, especially those perceived by applicants as most desirable. It is 
not uncommon for law schools to receive as many as ten or fifteen applica­
tions for each position in the first-year class, the largest number of which 
are by applicants who would, it can be predicted with a high degree of 
certainty, successfully complete the school’s academic program.



12

im portant, qualities th a t m ay well be different for the ju ry  
lawyer, the appellate specialist, the counsellor and advisor, 
the negotiator and the legislator.

In m aking adm issions decisions, however, law schools are 
not able to address the full range of these qualities th a t go 
into the m aking of a successful law yer because there are no 
reliable guides, a t least yet,5 to the a ttribu tes  of a "successful 
lawyer.” Given the necessity of selection, a choice is the re­
fore made in  term s of a standard  th a t the law schools can 
m easure and apply, the expected performance of the appli­
cant in school.

B. Numerical Predictors Indicate Which Applicants Are 
Most Likely To Succeed In Law School

C entral to any understanding of the process by which law 
schools ration  the available spaces among qualified appli­
cants is the role of the quan tita tive predictors.

We have already mentioned the LSAT. I t  was first used in 
1948. Since th a t tim e the test has been the subject of an 
enormous volume of research under the sponsorship of the 
Law School Admission Council (LSAC) which consists of a 
representative from each school using the test (today identi­
cal w ith the list of ABA-approved schools). This research, 
now compiled in Law School Admission Council, Reports of 
L SA C  Sponsored Research , vols. 1 & 2 (1976), covering 72 
separate research projects, has been dedicated not only to 
scrutiny of the validity of the LSAT and its component parts  
and to im provem ent in its  content and structu re bu t also to

5. A major effort to study the relationships of predictors and success in 
practice was begun in 1973 with the inauguration of the Competent 
Lawyer Study, a joint project of the Association of American Law Schools, 
Law School Admission Council, American Bar Foundation and National 
Conference of Bar Examiners. The purpose of the study is to learn how to 
identify, measure and predict the factors that go into performance as a 
competent lawyer.



13
the search for other possible predictors of law school per­
formance.6

Some of the resu lts of th a t research are worth noting. We 
know, for example, th a t the test is not racially biased. Five 
separate studies have indicated th a t the test does not under­
predict the law school performance of blacks and Mexican- 
A m ericans.7 We know th a t it is not sexually biased.8 We 
know, even, th a t it predicts as well for Canadians as it does 
for A m ericans.9 We know th a t questions designed to m ea­
sure an  applicant’s general background knowledge, which

6. For a summary of the result of this research, see Hart & Evans, 
Major Research Efforts of the Law School Admission Council, in Law 
School Admission Research (LSAC 1976).

7. Schrader, Pitcher & Winterbottom, The Interpretation of Law School 
Admission T est Scores for Culturally Deprived and Non-white Candidates, 
LSAC 66-3, in 1 Law School Admission Research 375 (1976); Flickinger, 
Law School Admissions and the Culturally Deprived, printed with 
Schrader & Pitcher, The Interpretation of Law School Admission Test 
Scores for Culturally Deprived Candidates: An Extension of the 1966 Study 
Based on Five Additional Law Schools, LSAC 72-5, in 2 Law School Ad­
mission Research 227 (1976); Schrader & Pitcher, Predicting Law School 
Grades for Black American Law Students, LSAC 73-6, in 2 Law School 
Admission Research 451 (1976); Schrader & Pitcher, Prediction of Law 
School Grades for Mexican American and Black American Students, 
LSAC 74-8, in 2 Law School Admission Research 715 (1976).

Research has also been done as to whether there is any possible source of 
bias in the "speededness” of the test, i.e., the question whether minority 
candidates may not finish the test in as large a proportion as whites. The 
first study indicated that, although speededness had a slight affect on 
scores, there was no differential in that effect. Evans & Reilly, A Study of 
Speededness as a Source of Test Bias, LSAC 71-2, in 2 Law School Admis­
sion Research 111 (1976) and in 9 J. Educ. Measurement 123 (1972). A 
second, extended study confirmed the absence of any differential effect. 
Evans & Reilly, The LSA T Speededness Study Revisited: Final Report, 
LSAC 72-3, in 2 Law School Admission Research 191 (1976).

8. Pitcher, Predicting Law School Grades for Female Law Students, 
LSAC 74-3, in 2 Law School Admission Research 555 (1976).

9. Angoff & Herring, Study of the Appropriateness of the Law School 
Admission Test for Canadian and American Students, LSAC 71-1, in 2 
Law School Admission Research (1976).



14

were a t one tim e included in the test, bu t have since been 
abandoned, add nothing to its predictive value.10 We know 
th a t it is a useful and valid tool bu t th a t there is another 
ind icato r of alm ost equal v a lid ity —the u n d erg rad u a te  
grade-point average (GPA). And we know, finally, th a t these 
two indicators combined constitute the best predictors of law 
school performance th a t we have been able to devise.11

The validity of the LSAT, the  GPA, and th e ir combination 
as predictors is under constant scrutiny. Most schools which 
use the LSAT subm it, usually  once each year, the  per­
formance of each of the ir students in the first year as m ea­
sured by grades. This record of performance is then  m ea­
sured against the LSAT and GPA of these students. A de­
term ination is made as to the correlation of each of these 
predictors, and of both combined, w ith performance; in addi­
tion each school has a predicted index (or index number) pre-

10. Carlson, Factor Analysis and Validity Study of the Law School A d­
mission Test Battery, LSAC 70-3, in 2 Law School Admission Research 11 
(1976).

11. Efforts to find a consistent and systematic correlation with other 
factors in order to improve the effectiveness of the combination of LSAT 
and GPA have proved fruitless. Studies have been made, for example, of 
the utility of factoring in the quality of the undergraduate schools as mea­
sured by the average LSAT scores of their graduates. This has not proved 
effective in increasing the predictive power of the LSAT and GPA com­
bined. Schrader & Pitcher, Adjusted Undergraduate Average Grades as 
Predictors of Law School Performance, LSAC 64-2, in 1 Law School Ad­
mission Research 291 (1976); Schrader & Pitcher, Effect of Differences in 
College Grading Standards on the Prediction of Law School Grades, LSAC 
73-5, in 2 Law School Admission Research 451 (1976). Until recently a 
separate weight was given to the score on the writing ability (WA) portion 
of the LSAT but this was abandoned when it was found that it added little. 
At one time it was thought that taking account of undergraduate major or 
using the improvement in grades over the undergraduate career, rather 
than simply the three-year average, would improve prediction. They did 
not. Reilly, Contributions of Selected Transcript Information to Prediction 
of Law School Performance, LSAC 71-4, in 2 Law School Admission Re­
search 133 (1976); Reilly & Powers, Extended Study of the Relationship of 
Selected Transcript Information to Law School Performance, LSAC 73-4, 
in 2 Law School Admission Research 405 (1976).



15

pared for it  in  evaluating applicants in  the succeeding year 
based on the accuracy of the predictors in  prior years.12

12. These studies not only validate the use of the composite of LSAT 
and GPA by each school but, in addition, they also provide each school 
annually with predictive formulas showing which combination of the two 
(LSAT and GPA) have the highest validity based on performance at that 
school in that year and in the three most recent years combined, as well as 
one based on the experience of all law schools put together. The school can 
choose whichever of these formulas it desires, or any other combination it 
desires and, in the succeeding year ETS, through the Law School Data 
Assembly Service (LSDAS), provides the school with an index, based on 
the school’s specified formula, of each applicant’s predicted performance.

An illustration may be helpful. Assume that a study of the 1975 enter­
ing class at a particular school reveals that the grades earned by the mem­
bers of that class would have been best predicted by a formula that sums 
the LSAT score and the product of 135 times the GPA. (Since LSAT is 
scored on a 200-800 scale and GPA on a 4-point scale the assumed formula 
involves a determination, today generally accurate, that the LSAT is a 
somewhat better predictor than the GPA.) In the following year, i.e., for 
applicants to the class of 1976, the LSDAS will, using that formula or any 
other requested, provide an index number for each applicant. This can, if 
requested, be given in terms of the particular school’s grading system. 
This is the predicted first-year average (PFYA or PG A) referred to in the 
brief filed by the deans of the four publicly-supported California law 
schools in support of the petition for certiorari.

Such predictions are, however, only statements of probability and hence 
are necessarily imperfect. The degree of probability is expressed in a corre­
lation coefficient. A school whose index number has a correlation co­
efficient of .45 and which admitted 100 students would normally expect to 
find that at the end of their first year, 8 of the top 20 who had the highest 
index numbers would be in the top 20 students. But the top 20 students 
would also include 1 or 2 whose index numbers were in the bottom 20% of 
those admitted. Conversely, 8 of the students with the lowest index num­
bers, and 1 or 2 of those with the highest, would probably be represented in 
the bottom 20% of the class. Finally, it is worth pointing out that a major­
ity of both the highest ranking 20% and the lowest ranking 20% of admit­
ted applicants are likely to end up in the middle 60% of the class. See 
LSAT Handbook 47 (1964).

Over the past few years, the correlation between the index number em­
ployed by most schools and the performance of their first-year students 
has ranged between .3 and .5, with some as high as .7. The mean validity is 
.45. Because a .45 correlation can be said to mean that the index accounts 
for only 20% of the rank order of student performance, there are those who 
have argued that the correlation of LSAT and GPA with law school per­
formance is so low as to make the use of these predictors unnecessary or 
undesirable. One answer to that argument is that, though far from perfect,



16

None of this is m eant to suggest th a t the law schools of this 
country should, or do, rely entirely  on the num erical indi­
cators. While on average they are valid and reliable, they 
state in essence only a probability of relative performance. 
The probability th a t a selection based on these predictors

the combined LSAT-GPA index is the best predictor available. Extensive 
efforts to use interviews or other subjective methods of evaluation of can­
didates for law school have never proved valid when tested against actual 
performance. See Linn & Winograd, New York University Admissions 
Interview Study, LSAC 69-2, in 1 Law School Admission 547 (1976). This is 
in accord with the available scientific evidence that predictors such as the 
LSAT are in general likely to be more accurate than subjective evaluation. 
The greater efficiency of the combination of LSAT and GPA is explained 
by the fact that the latter may measure motivation and study habits, fac­
tors not measured by the LSAT.

Moreover, the argument that a .45 correlation is too low to justify use of 
the index fails to take account of the phenomenon technically known as 
"range restriction” and thereby understates the utility of the index as a 
predictor. "Range restriction” can be illustrated by a simple example. It is 
a fact that there is a very strong relationship between the height and 
weight of human beings. If a randomly selected sample were taken, the 
correlation coefficient between these two quantities would be very high. 
There are a few short but very heavy people and a few tall bean poles, but 
on the average it is true that the taller a person is the more he weighs. But 
it is also true that as the differences in height decrease the correlation 
decreases: it is much less certain that a person 6'1" tall is heavier than one 
who is just 6' than it is that a 6' person is heavier than a 5' person. A 
correlation coefficient of height and weight among, let us say, professional 
basketball players would therefore be much lower than one in which the 
population as a whole were being measured.

Just so with law school admissions. Since almost all American law 
schools tend to select those who have the higher scores, the correlation 
coefficient is very much lower than it would be if all who applied were 
admitted. The greater the weight given to the index in admissions the 
lower the correlation coefficient. But the drop in the correlation coefficient 
says nothing as to the efficiency and effectiveness of the index as a dis­
criminator between those accepted and the vast majority who are 
rejected—it measures only the efficient use of the index in predicting the 
relative position of those accepted The "range restriction” phenomenon at 
least partly explains the difference between the relatively high correla­
tion coefficient of .67 for the University of California at Berkeley (Boalt 
Hall) and the more typical .45. Although Boalt Hall accepts only a small 
proportion of those who apply to it, including minorities, it does have a 
larger "special admissions” program than most schools and therefore ex­
hibits a somewhat smaller "range restriction” effect.



17

will in fact select the candidates who will perform best is 
very high if the difference in the indices is large but it is low 
when the indices are sim ilar. Given the large volume of ap­
plications the u ltim ate decision may have to be made among 
applicants who have very sim ilar index scores. It is for this 
reason, among others, th a t the schools generally use those 
predictors in combination with other inform ation th a t they 
have about applicants. We now tu rn  to the process by which 
they do so.

C. The Adm issions Process Is Designed To Identify Which 
Of The Qualified Applicants Should Be Admitted

A lthough the specific procedure varies from school to 
school, the following describes in general term s the m ain 
features of the regu lar admissions process a t most schools.

The first step is to reduce the num ber of files th a t can be 
given detailed exam ination to a m anageable number. This is 
done on the basis of the index num bers except where quick 
exam ination of the file indicates tha t, for some reason, the 
num bers are not indicative of probable performance. Those 
having the highest indices are adm itted and a larger num ber 
are denied, not because they are unqualified, although some 
may be, bu t simply because the ir performance as predicted 
by the index will probably be lower than  th a t of the group to 
be given detailed exam ination. After th is in itia l screening, 
then  each school, in its own way, attem pts to make the best 
possible prediction as to the relative quality of the appli­
cants. Everything th a t is known about them  is taken  into 
consideration: the applicants’ personal statem ents, the ir 
work histories, the na tu re  of the subjects taken  in under­
g rad u a te  college, differences in the  k ind of education 
provided by different colleges or differences in grading s tan ­
dards between colleges, the trend of an applicant’s under­
graduate  grades, the possible effect of a disadvantaged



18

background upon the validity of the predicted performance, 
and every other factor th a t the particu lar school th inks can 
possibly be utilized in m aking a judgm ent as to the relative 
quality of the applicants.

The admissions process thus involves more than  the use of 
test scores and grades.13 All, or v irtually  all schools use 
w hatever inform ation they believe, in  the best exercise of 
the ir professional judgm ents, will indicate the relative abil­
ity of the applicants to perform in law school. W hatever fac­
tors a particu lar school considers, i t  seeks to pick the most 
promising candidates from among those who apply for ad­
mission to it.

The last sta tem ent is subject to an  im portant qualifica­
tion. The effort of each school to identify and select those 
applicants most likely to perform successfully is subject to 
certain  overrides. The first of these is the desire for diversity. 
Faculties generally believe th a t a process th a t produces a 
homogeneous student body, all of the members of which 
share a common history, is unlikely to provide an atm o­
sphere for effective education in the law. Thus, an adm is­
sions committee is likely to give preference to diverse back­
grounds and experiences, perhaps selecting an  experienced 
businessm an, a prison guard, a psychiatrist or a newspaper 
reporter over a recently graduated college senior who would 
be likely to perform better academically.14

13. Almost all schools admit students other than "on the numbers.” 
This can be seen dramatically by inspecting the profiles of admissions at 
almost any school as shown in the 1976-77 Prelaw Handbook. One 
school, for example, rejected 15 of 94 applicants in 1976 who had LSAT 
scores between 650 and 699 and also had undergraduate grade point aver­
ages between 3.50 and 3.74. But it accepted 32 applicants who had LSAT’s 
below 600 and undergraduate grade point averages below 3.49. These fig­
ures exclude admissions under what that school calls its "special experi­
mental” program. Id. at 237.

14. See, e . g Columbia University Bulletin, School of Law, 96-97 (1976). 
The procedure used at the University of Virginia School of Law is typical:



19
A nother override typical of most state-supported schools is 

a m andated preference for residents of the state, usually ex­
pressed as a maxim um  percentage of the students not regis­
tered in the state who may be adm itted. Such a preference 
serves a t least two purposes—increasing the opportunities 
for professional education for those whose families support 
the institu tions and increasing the likelihood th a t graduates 
of the school will rem ain in the state to meet its needs for 
legal services. The effect of the preference is, of course, th a t 
the school will be required to reject some nonresidents who 
would be likely to perform more successfully than  some resi­
dents who are adm itted.

The final override, and the one this case is about, is race. 
The plain fact of the m atter is th a t were it not for this over­
ride the admissions processes of the nation’s law schools, 
tak ing  into account all of the factors we have described, 
would produce very few students who are members of racial

Even in dealing with the large application volume, encountered 
during the last several years, the admissions committee believes that 
absolute standards based on a combination of LSAT score and under­
graduate grade-point average (GPA) are not the best way to select an 
entering class. Consequently, the committee considers a broad array 
of elements in addition to the essential factors of LSAT and GPA, with 
a view toward assembling a diverse group while at the same time 
arriving at a fair appraisal of the individual applicant.

Because of this approach it is difficult to predict what action may be 
taken on an individual application. The LSAT score and under­
graduate GPA constitute the bulk of the committee’s consideration; 
usually about 80 percent total weighting is accorded these two factors. 
However, there are other elements taken into account; the maturing 
effect of an individual some years away from formal education; a ris­
ing trend in academic performance versus solid but unexceptional 
work; financial pressure requiring employment during the under­
graduate years; significant personal achievement in extracurricular 
work at college or in a work or military situation; unusual prior train­
ing which promises a significant contribution to the law school com­
munity. Other, similar factors are also considered.

University of Virginia Record 1976-77, School of Law, 55 (1976). A more 
complete report of the factors used and the admissions process relied on at 
another school appears at 28 J. Leg. Ed. 363, 378 (1977).



2 0

minorities. This has led to the creation of "special adm is­
sions program s” designed to produce decisions different from 
those th a t would be produced if the process were conducted 
in a racially neu tra l way.

Each of the overrides has a purpose. Single-minded devo­
tion to predictions of probable academic excellence undoubt­
edly would increase the num ber of graduates who possess 
the highest levels of the intellectual qualities im portant to 
the practice of law, but th a t is not the only purpose for which 
a law school, particu larly  a state-supported law school, 
exists. If a single standard  of probable performance is used, a 
defined group having lower levels of predicted performance 
may be entirely  excluded, even though many in th a t group 
will perform as well or b e tte r than  those adm itted. The only 
solution, if this resu lt is to be avoided, is to apply a somewhat 
lower standard  for th a t group but one which will still assure 
a high probability of success.

These overrides are not w ithout cost. F irst, since the best 
predictors express only probabilities, a higher percentage of 
those in the preferred group may encounter academic dif­
ficulties (although it is impossible in advance to say which 
ones). Second, the use of different standards for different 
groups m eans th a t some w ell-qualified applicants who 
would otherwise be adm itted will be rejected. But those costs 
are balanced by the cost of the a lternative—nam ely, the de­
nial of admission to well-qualified residents and m inority 
applicants because the school has selected only those who 
are most certain to succeed.

There is, in short, no free lunch. As long as the num ber of 
qualified applicants exceeds the num ber of persons who can 
be adm itted, some applicants m ust suffer the disappoint­
m ent of being denied admission. U nder fair procedures th a t 
determ ine which applicants do (and do not) meet the school’s 
admissions criteria, the only issue of law is w hether the ad-

r



21

m issions c rite ria  employed advance perm issible public 
policies. The mere fact, regrettable as i t  may be, th a t some 
qualified applicants have been denied admission is not rele­
v an t to th a t issue, for th a t resu lt is inevitable under any 
criteria.

Our description of the admissions process has been offered 
to underline the proposition tha t, subject to the overrides 
specified, each law school decides w hether to adm it or reject 
the thousands of applications received on its best estim ate of 
the relative performance of the applicants to th a t school as 
law students. The focus of the admissions decision is not on 
which of the applicants is the most deserving but, if you will, 
on the product: which of the applicants will best serve the 
purpose for which the school was created, th a t of supplying 
professionals needed by the community. Preferences based 
on residence or on the desire for diversity in the student body 
are clearly related to th a t purpose. Preferences for members 
of certain  m inority groups equally serve th a t purpose. This 
brings us directly to the question of race.

D. The Use of Race as a Factor In The Admissions Process 
Is N escessary If There Are To Be A Substantial Number 
Of Minority Students In Law School

Our consideration of the use of race in law school adm is­
sions is in three parts. We first set out in brief compass, and 
in fairly general term s, the history and the natu re  of special 
admissions program s used by law schools to in tegrate the ir 
student bodies. N ext we consider w hat the im pact would be 
of a forced abandonm ent of these program s designed to in ­
crease m inority enrollm ent in  law school. W hat, in other 
words, would be the effect of a race-blind system of admission 
upon the racial mix of applicants who would be adm itted to 
the schools if they adhered to current admissions criteria of 
probable academ ic success and d iversity  (excluding of



22

course, racial diversity). F inally we explain why there are no 
reasonable alternatives to reliance on the race-conscious 
admissions procedures if m inority admissions are to be at 
more than  a token level and why the proposed racially neu­
tra l solutions, including those suggested by the Supreme 
Court of California, are not grounded in reality  or logic—and 
merely invite schools to adopt an approach we reject as u n ­
worthy and inappropriate, the institu tion  of disingenuous 
programs whereby race is taken into account covertly.

1. T he S p ec ia l A d m issio n s  P rogram s
Responding to the  moral pressures of the civil rights 

movement, first led by this Court, which was sweeping the 
country in the mid-1960s, the law schools began in a variety  
of ways to take affirm ative steps to a tta in  more than  a token 
enrollm ent of m inority students.15 There were, in  1964, only 
700 black students in all the accredited law schools of the 
c o u n try — 1.3% of th e  to ta l  e n ro llm e n t of m ore th a n  
54,265—and 267 of them , more than  a third, were enrolled in 
w hat then were essentially segregated black schools.16 In all 
of the other accredited schools in the country, then, fewer 
than  200 were being adm itted each year. P lainly something 
had to be done.

The first pa tte rn  to emerge was an active program  by the 
law schools to recruit m inority, th a t is prim arily  black, s tu ­
dents. Since the profession had historically been all bu t 
closed to blacks, these students had first to be persuaded to 
consider law as a career and then  to enroll. Many methods of 
recruiting were used. The Law School Admission Council 
(LSAC) sponsored visits to black colleges and with black

15. The history given here can be traced in the voluminous reports pub­
lished in Symposium, Disadvantaged Students and Legal Education— 
Programs for Affirmative Action, 1970 Tol. L. Rev. 277.

16. Report of Minority Groups Project in AALS Proceedings 172(1965).



23

student groups; the LSAT was adm inistered to m inority s tu ­
dents w ithout charge; sum m er program s were held, first at 
H arvard Law School in 1965, and then elsewhere, to give 
college students an understanding of w hat law study m ight 
involve; and scholarships were offered especially for m inor­
ity applicants to overcome the financial hurdles th a t seemed 
to dissuade so many.

Im plicit in these first program s to recru it and enroll 
m inority students was the relaxation of admission standards 
for them. For a t the same tim e th a t the law schools were 
seeking to adm it increasing num bers of m inority students 
they were also being deluged with increasing numbers of ap­
plicants of all backgrounds. Law was becoming a more a t­
tractive field to all sorts of students and, as previously de­
scribed, the num ber of highly qualified, indeed exceptional­
ly qualified, non-minority students was growing dispropor­
tionately. Law schools, as a result, were seeking to increase 
m inority student enrollm ent a t the same tim e th a t they 
were first having to ration the ir available spaces by select­
ing all students on an  increasingly higher standard—and 
unless something were done, it would he the m inority group 
students once again who would be squeezed out.

A t most schools the solution was to return , in effect, to 
w hat we have previously called the second stage in  the de­
velopment of the admissions process. (See p. 10, supra.) The 
clock was, in  effect, tu rned  back for applicants from m inority 
groups and all of those who were deemed to be qualified were 
adm itted. T hat is to say, m inority students were adm itted 
under these special admissions on the standards which had 
been used by these very same schools in  the late 1950s or 
early 60s.

The schools accomplished th is in a variety of ways. In a 
few, an explicit m inority admissions program  was estab­
lished. In others, it was disguised as a program for the disad-



24

vantaged. In still others, the action took place but no public 
statem ent was made concerning the existence of differential 
adm issions standards. In recent years, more and more 
schools have identified the ir special admissions programs 
publicly as they more fully understood the process and rea l­
ized th a t no alternatives were available. Thus, by the mid 
1970s, in v irtually  all schools, in  one way or another, a pref­
erence in the application of admissions standards was in fact 
afforded to applicants from m inority groups.

At the same tim e the law schools began adopting special 
admissions program s, efforts were made to improve m inor­
ity student preparation for law study, in  sum m er studies be­
fore law school and assistance program s while in school. The 
preparatory  program s had mixed results. H arvard’s pro­
gram  in 1965 and 1966 included a few college graduates, and 
New York U niversity’s pre-law program  in 1966 and 1967 
sought to introduce students to the fundam entals of legal 
study and to prepare them  for the law school curriculum . At 
the same tim e Emory Law School began a "pre-start” pro­
gram  whereby a dozen students from nearby black colleges 
were recruited to take  one regu lar law course in the sum m er 
before the ir first year. If they passed, they were then adm it­
ted to Emory as regu lar students except th a t they were on a 
ligh ter course load during the ir first year. But programs 
such as these were expensive. H arvard  had to abandon its 
program  after being unable to obtain adequate funding in 
1967 and New York U niversity concluded after two sum ­
mers th a t the results were so m eager as not to justify the 
cost.

It was a t this point th a t the AALS, the LSAC and the na­
tional bar associations, the Am erican B ar Association and 
the N ational B ar Association, supported by the Office of 
Economic Opportunity and the Ford Foundation, formed 
w hat was called CLEO (the Council on Legal Education Op-



25

portunity) to provide sum m er tra in ing  for disadvantaged 
m inority pre-law students and to provide financial support 
for these students once in law school. It began w ith four n a­
tional institu tes in the sum m er of 1968 and has continued in 
one form or another (now relying solely on congressionally 
appropriated funds received through HEW) to the present 
day.

Students adm itted are those who in general would not be 
adm itted today to law school, even under special admissions 
programs, w ithout an  opportunity to pretest the ir ability to 
do law school work in a sum m er institu te . T hat is, the ir nu ­
m erical credentials are such th a t under the elevated stan ­
dards forced by increased applicants, law schools generally 
would tu rn  down the applications of these m inority appli­
cants because of low LSATs and GPAs. These sum m er in sti­
tu tes are designed to be alternative predictors of success, and 
the admission of these students into law school is generally 
conditioned by the schools on the students’ successful com­
pletion of a sum m er institu te . CLEO also has supported 
these students during th e ir entire law school careers.

CLEO is only a partia l response, however. F irst it is costly 
and could not be sustained w ithout governm ent support. 
More im portant for this case is th a t it generally supports 
students whose credentials are such th a t they could not be 
adm itted in the schools in which they are enrolled even 
using second-stage standards. Thus as a m atter of policy 
CLEO does not support the most promising m inority s tu ­
dents on the theory th a t the law schools having special ad­
missions programs will adm it these (more qualified) s tu ­
dents w ithout the aid of an expensive sum m er institu te’s ex­
perience and th a t adequate financial assistance can be ob­
tained for them  from other funds. It is, in other words, a de­
liberate federally-supported program to increase the pool of 
m inority students attending law school beyond those who



would otherwise be adm itted in  m inority admissions pro­
grams.

At the in itia l stage these special admissions program s had 
difficulties which we discuss la ter. Over time, however, the 
fact th a t law was now open to m inorities th a t had heretofore 
been alm ost totally excluded, plus the first effect of the im ­
provem ent in elem entary and secondary education resulting  
from this Court’s decision inB row n, caused an im provem ent 
in both the num ber and the quality  of the applicants from 
these groups. This has led to refinem ent of the programs. 
Originally, the effort was to find and recru it m inim ally qual­
ified m inority applicants. As the num ber and the qualifica­
tions of m inority  applicants increased, i t  often became 
necessary to put a ceiling on the num ber enrolled in them. 
This "quota,” so called, is neither a lim it on the num ber of 
m inority students to be adm itted nor, on the other hand, a 
guarantee th a t a num ber equal to th is lim it will be adm itted 
irrespective of qualification. I t is simply a lim it on the pro­
portion of the school’s resources which will be devoted to the 
program, sim ilar to the lim it which a school m ay put on the 
num ber of nonresidents to be adm itted. The result, in  either 
case, is the existence of essentially two admissions processes, 
each competitive w ithin itself and not competitive against 
the other.

The premise of these special admissions programs is th a t, 
in time, they will disappear. They are essentially a tra n ­
sitional device to correct a tim e lag. It would be naive to sup­
pose th a t the cum ulative effects of centuries of deprivation 
will be overcome in the space of a few years. But when the 
need which brought the special admissions program s into 
being disappears they will be term inated. It is to the schools’ 
in terest th a t this occur. Each is dedicated to atta in ing  the 
highest possible level of achievem ent in  its student body. 
Special admissions program s represent a compromise with



27

th a t goal, a compromise made necessary by the schools’ a l­
most universal perception of a pressing societal need to 
provide more m inority lawyers than  can possibly be pro­
duced w ithout them . But as the num ber of unrepresented 
m inorities who can gain admission through the regu lar pro­
cedures increases, the necessity for th a t compromise will 
disappear.

An example, the only one we now know, is provided by the 
elim ination of Japanese-A m ericans from the special adm is­
sions program  a t Boalt Hall, when th a t faculty found, after a 
few years’ experience, th a t members of th a t group were gain­
ing admission in  substan tial num bers through the regular 
procedure.17 The appropriate tim e for the eventual elim ina­
tion of the program s, insofar as we can now determ ine it, is 
still far in  the fu ture for blacks and C-hicanos. The success of 
the program s thus far, even w ith the ir m istakes, should not 
obscure the fact th a t under today’s conditions the ir elim ina­
tion would be a disaster. To th a t question we now turn.

2. M in ority  S tu d en ts  W ould B e A lm ost E lim in a ted  
F rom  L aw  S ch o o l W ithout S p ec ia l A d m issio n s  
P rogram s

The unpleasant bu t unalterab le reality  is th a t affirmance 
of the decision below would mean, for the law schools, a re­
tu rn  to the v irtually  all-white student bodies th a t existed 
prior to the Civil Rights Act of 1964 and subsequent congres­
sional enactm ents which, after so many years of default, fi­
nally committed the nation to the goal of racial equality. 
More specifically, as a resu lt of the programs described in the 
preceding pages, 1700 black and 500 Chicano students were 
adm itted to the Fall, 1976 enteri ng class of the nation’s law

17. Report onSpecial Admissions at BoaltHall After Bakke, 28 J. Legal 
Ed. 363 (1977).



28

schools.18 They represented 4.9% and 1.3%, respectively, of 
the total of 43,000 who were adm itted .19 If the schools had 
not taken  race into account in m aking th e ir adm ission deci­
sions, bu t had otherwise adhered to the admission criteria 
they employ, the num ber of black students would have been 
reduced to no more than  700 and the num ber of Chicanos to 
no more th an  300.20 It is v irtually  certain , however, th a t the 
reduction would have been much g reater and it is not a t all 
unlikely th a t even th is reduced num ber would have again 
been reduced by half or more. Thus, the nation’s two largest 
racial m inorities, representing nearly  14% of the population, 
would have had a t most a 2.3% represen tatation  in  the  n a­
tion’s law schools and, more likely, no more th an  about 1%.

These conclusions are draw n from F. Evans, Applications 
and Adm issions to A B A  Accredited Law  Schools: A n  A naly­
sis o f National Data for the Class Entering in the Fall 1976 
(LSAC 1977) (the Evans Report) which studied characteris­
tics of applicants for admission to the 1976 law school class. 
The length and complexity of th a t study preclude any effort 
to set out its findings and supporting data in detail. We shall, 
however, set forth briefly the data  underlying the conclu­
sions stated in  the preceding paragraph  and sum m arize sev­
eral additional findings th a t fu rther dem onstrate the devas­
ta ting  impact th a t race-blind admission standards would 
have upon m inority enrollm ent in law schools.

The ineradicable fact is th a t, as a group, m inorities in  the

18. The difference in the numbers of minority students covered by the 
Evans Report and the number actually enrolled is explained primarily by 
the absence of LSD AS status data from the four predominantly black law 
schools. See Evans Report at 39.

19. The total admitted, as reported in the Evans Report, exceeds the 
actual 1976 law school first-year enrollment of 39,000 because some of 
those accepted into law school nevertheless did not matriculate. Thus of 
the 43,000 students admitted to at least one law school, approximately 
4,000 did not enroll.

20. Evans Report at 44.



29

pool of law school applicants achieve dram atically lower 
LSAT scores and GPAs th an  whites. Illustratively, 20% of 
the w hite and unidentified applicants, bu t only 1% of blacks 
and 4% of Chicanos receive both an LSAT score of 600 or 
above and a GPA of 3.25 or higher. Similarly, if the combined 
LSAT/GPA levels are set a t 500 and 2.75 respectively, 60% of 
the w hite and unidentified candidates would be included but 
only 11% of the blacks and 23% of the Chicanos.21 Such dis­
parities exist a t all LSAT and GPA levels. Their effect, under 
a race-blind system, m ust inevitably be to curtail sharply 
the num ber of blacks and Chicanos adm itted to law school.

In 1976, there were more th an  80,000 applicants for ap­
proxim ately 39,000 seats in the first-year class. As ex­
plained above, pp. 14-16, supra, law schools commonly em­
ploy an index num ber combining LSAT and GPA scores as 
one m eans of p red ic tin g  the  probable law  school p e r­
formances of applicants. If all applicants for the 1976 class 
were to be assigned an index num ber, computed under two 
widely-used prediction formulas, the num ber of blacks in the 
top 40,000 would have been 370, on one formula, and 410 on 
the other. The equivalent figures for Chicanos are 225 and 
250.22

Of course, as discussed above, law schools do not select 
students solely by "the num bers.” A lthough an im portant 
factor in determ ining who will be adm itted to law school, 
they are not the only one. To determ ine the num ber of blacks 
and Chicanos who would have been adm itted to law school 
under a race-blind standard, it is necessary to estim ate how 
they would have fared if  non-quantitative predictors of suc­
cess (letters of recommendation, experience, etc.) and other

21. Id. at 35.

22. Id. at 49-50.



30
non-racial criteria affecting admissions (e.g., the school’s 
in terest in student diversity) were taken  into account. Obvi­
ously, th is cannot be done. I t  seems reasonable to assume, 
however, th a t if race were not a factor in  the admission pro­
cess, the applications of m inorities would be affected by such 
factors in precisely the same way as those of whites.

On th a t assum ption, the Evans Report calculated the ac­
ceptance ra tes for whites for each LSAT-GPA com bination.23 
These acceptance ra tes were then  applied to black and 
Chicano students who had the same combination of LSAT 
scores and GPAs.24 On th is  basis, 700 blacks and 300 
Chicanos would have been adm itted, a num ber equal to 40% 
of the blacks and 60% of the Chicanos actually adm itted.

These figures, 700 black and 300 Chicanos, sta te  the out­
side lim it th a t would have been adm itted under a race-blind 
standard. It is v irtually  certain , however, th a t they sub­
stan tia lly  overstate the num ber th a t would actually have 
enrolled as first-year students. By employing aggregate na­
tional acceptance rates, the study in  effect trea ts  all law 
schools as a single school. As the report notes, the im plicit 
assum ption of such a procedure is " th a t m inority candidates

23. Illustratively, of those whites who had an LSAT score between 
600-649 and a GPA between 3.00—3.24, 83% received at least one offer of 
admission from a school to which they had applied. Of those who had an 
LSAT between 550-599 and a GPA between 2.75-2.99, 60% received such 
an offer. These illustrations, and the full range of calculations set out in 
the Evans Report, demonstrate that, as indicated in our discussion of the 
admission process, the lower an applicant’s quantitative predictors, the 
lower his or her chance of admission.

24. For example, since 60% of whites who had LSAT scores between 
550-599 and GPAs between 2.75-2.99 were accepted by at least one school, 
it was assumed that the same percentage of blacks with such credentials 
would have received at least one offer of admission. Since there were 37 
blacks in this group, the assumption is that 22 would have received an 
offer. In fact, 30 of the 37 blacks in this group received at least one offer.



31
would apply to and be willing to attend” any school.25 Com­
mon sense rebels against any such assumption. Geograph­
ical considerations alone are bound to lim it a potential ap­
plicant’s choice of schools. Moreover, the schools to which 
these 700 blacks and 300 Chicano students would have been 
adm itted are predom inantly the least selective law schools 
in the country.26 Since those schools lack the financial aid 
resources of the more selective institutions, a large portion of 
the high percentage of m inority students who require finan­
cial assistance would, for th a t reason alone, be unable to a t­
tend the only schools to which they could gain admission.27

No one knows with any certainty how far these factors 
would reduce the num ber of blacks and Chicanos attending 
law school below the m axim um  eligibility figures of 700 and 
300, perhaps by 25%, perhaps by 50%, perhaps by more. 
Since su b stan tia lly  more th a n  h a lf  of both black and 
Chicano applicants were from low-income families,28 how­
ever, and in  view of the lim itations imposed by geography, a 
reduction of 50% seems not a t all im plausible. On th a t basis, 
the num ber of black and Chicano students enrolled in the 
first-year class in 1976 would have been approxim ately 1% 
of the entering class, roughly the same as in 1964. The prog­
ress of a decade would have been wiped out.

The drastic im pact of an affirmance is also dem onstrated 
by th.eEvans Report’s findings th a t under a race-blind admis­
sion standard  12 of the nation’s most selective law schools, 
which during 1975 had to tal m inority enrollm ent of approx­
im ately 1,250, nearly 15% of the national total, would have

25. Id. at 44.

26. Id. at 45

27. Id. at 57.

28. Id. at 29 & 59.



32

enrolled no "more than  a handful of m inority students.”29 
Yet, these are the schools from which, over the years, many 
of the leaders of the bar and the nation have been drawn. 
They are, moreover, the w ealthiest institu tions and, th e re ­
fore, those w ith the g reatest resources for the financial aids 
so sorely needed by m any m inority students.

The im portance of th is case to the fu ture of m inority s tu ­
dent enrollm ent in the law schools of th is country cannot be 
overstated. If the schools are prohibited from using race as a 
factor in  admissions, m inority enrollm ent will plum m et and 
the hopes of a generation schooled in the traditions of equal 
opportunity enunciated by Brown  will be dashed. This be­
comes even clearer when one exam ines the possible a lte rna­
tives th a t have been suggested and realizes th a t in fact they 
offer no realistic prospect of substan tial m inority enroll­
ments.

3. N o R ea so n a b le  A ltern a tiv es  To S p ec ia l 
A d m issio n s  P ro g ra m s H a v e  B een  P ro p o se d

A rgum ents have been made from tim e to tim e, most nota­
bly by the court below and by Justice Douglas dissenting in 
DeFunis, th a t substan tial m inority enrollm ents in profes­
sional schools can be m aintained w ithout using racial ad­
mission criteria. If there are m eans by which th a t can be 
done, they are not known to the law schools. We do know, 
however, th a t none of those th a t have been suggested would 
work. None would perm it the enrollm ent of m inority s tu ­
dents in num bers even close to those th a t now exist and some 
would, in addition, have a destructive effect upon the quality 
of legal education and of the profession, requiring  law 
schools to adm it students—white and black—who are less 
qualified to study and practice law than  students now being 
adm itted.

29. Id.



33
The court below suggested th a t universities "m ight in ­

crease m inority enrollm ent by institu ting  aggressive pro­
gram s to identify, recruit, and provide rem edial schooling 
for disadvantaged students of all races. . . . ” But as the 
history recited a t pp. 22-55, supra, dem onstrates, law schools 
have already directed precisely such efforts toward m inority 
students. An expansion of these efforts to other groups would 
not increase the num ber of m inority applicants, but it would 
enlarge the num ber of w hites in competition with them .30 
Recruitm ent efforts directed toward minorities have been 
sufficiently successful so th a t for the past several years the 
ratio  of law school applicants to baccalaureate degrees 
granted has been the sam e for blacks and Chicanos as for 
w hites.31 There can be no doubt th a t this growth in the 
num ber of m inority applicants is directly related to the exis­
tence of the special admissions programs. For w ithout these 
programs, it  would have been pointless for most of the minor­
ity applicants, including most of those adm itted, to have 
applied to law school a t all.

A whole fam ily of o ther suggestions for m ain tain ing  
m inority enrollm ents, while avoiding the use of race as an 
admission factor, depend upon reducing the influence of the 
quan tita tive predictors in  the admissions process. These 
range from Justice Douglas’ extrem e suggestion th a t the 
LSAT be abandoned to more moderate proposals th a t would 
have the schools place g reater reliance on personal inter-

30. Moreover, low income whites perform sufficiently well on the LSAT 
and GPA to qualify for admission, in substantial numbers, at schools with 
varying standards. Id. at 63.

31. These ratios are determined by a comparison of the percentage of 
baccalaureate degrees awarded to minority students with the percentage 
of law school applicants who are members of minority groups. Compare 
Altesek & Gomberg, Bachelor’s Degrees Awarded to Minority Students 
1973-1974, at 4 (1977) (baccalaureate degrees) with Evans Report at 29 
(law school applicants).



34

views, recommendations, and the like as a way of predicting 
academic performance and potential contribution to the so­
ciety. Some of these suggestions rest upon the assum ption 
th a t the LSAT is "culturally  biased,” i.e., th a t it underpre­
dicts the probable academic performance of m inority appli­
cants. Five separate studies conducted over the past half 
dozen years have found th a t assum ption is wrong.32 In the 
light of these findings, to call for abolition of the LSAT 
am ounts to a dem and th a t the m essenger who brings the 
bad news be shot or, more accurately, th a t some other 
m essenger who will bring be tte r tidings be substituted.

For both majority and m inority students, the combination 
of LSAT and GPA, w ith all th e ir lim itations, is the best 
available predictor of academic achievem ent, especially a t 
the levels of difference which separate m ajority and m inor­
ity applicants in nearly  all law schools. If they are, for th a t 
reason, to be given weight in the adm ission process, m inority 
s tu d e n ts ’ n o n q u an tita tiv e  p red ic to rs of academ ic p e r­
formance (such as le tters of recommendation) would, on the 
average, have to be a good deal more favorable th an  those of 
whites if the former are to compete successfully for adm is­
sion. But there is not the slightest reason to suppose th a t 
they are; indeed, there is no reason to suppose th a t such sub­
jective factors are distributed on other than  a random  basis 
among applicants of different races. There is, accordingly, no 
reason to suppose th a t g reater em phasis upon "soft d a ta” 
would lead to admission of any bu t a very small num ber of 
m inority applicants.33

32. See note 7, supra.
33. Ironically, it is this very reliance on unverifiable "soft data” which 

the equal employment regulations seek to limit. See Employee Selection 
Guidelines, 41 Fed. Reg. 51733 (Nov. 23, 1976) (issued jointly by the De­
partments of Justice and Labor and the Civil Service Commission); EEOC 
Guidelines on Employee Selection Procedures, 29 C.F.R 1607.1 (1976). See



35
The same is true  w ith respect to the suggestion th a t 

schools should, in the in terest of "flexibility” place greater 
em phasis on factors other th an  predicted academic per­
formance. W hatever may be the wisdom or unwisdom of such 
a proposal, there is not a shred of evidence th a t reliance on 
any of the non-academic factors suggested would, unless 
used as a covert method of applying a racial preference, 
greatly  enlarge the num ber of m inority admissions. Some 
greater num ber of m inority applicants m ight be adm itted 
th an  if purely academic predictors of success were to be em­
ployed, bu t it is by no m eans obvious th a t th a t would be so. It 
is entirely  possible th a t an adm issions process employing 
standards as flexible as those suggested by the court below 
would disadvantage m inority students, favoring instead 
those applicants who had le tters of recommendation from in ­
fluential persons, or who were most sim ilar to law school pro­
fessors and admissions office professionals. And the cost of 
g rea tly  d im in ish ing  th e  ro le of th e  best p red ic to rs of 
academic competence would be so intolerable as inevitably 
to cause abandonm ent of the endeavor.

We can put aside quickly the suggestion of the court below 
th a t professional schools specifically rely more on "m atters 
re la ting  to the needs of the profession and society, such as an 
applicant’s professional goals” as a method of increasing the 
num ber of m inority lawyers. If "the needs of the profession 
and society” are defined, as we believe they m ust be, to in ­
clude a need for more m inority lawyers, the alternative is no 
alternative a t all but a restatem ent of precisely the adm is­
sion program  which the court declared unconstitutional. 
Sim ilarly, if "professional goals” are defined to include an 
intention specifically to serve m inority communities, their 
use as an admissions criterion may be subject to the same

also Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 
1972)(promotions).



36

attack  as the use of the race of applicants in the adm issions 
process. In any event, reliance on the stated  goals of appli­
cants for admission is pu rsu it of a chimera: applicants will 
inevitably say th a t which they believe will secure adm it­
tance and there is often—we th in k  usually—little  re la ­
tionship between even the sincerely expressed goals of an 
applicant not yet in school and the professional career 
eventually pursued.

We need not urge these considerations because there is a 
far g reater difficulty. If the schools are to adm it students 
upon the basis of the ir sta ted  professional goals, they m ust 
inevitably evaluate and ra te  these goals comparatively. Is it 
better, for example, to tra in  a law yer who says he w ants to 
attack  corporations or one who seeks to defend them? Is a 
practice in the field of securities regulation more or less 
valuable to society th an  the represention of labor unions? 
Choices among applicants on any such basis would th ru st 
the schools into an unw anted and unauthorized role of social 
arbiter. They can properly assess the com m unity’s overall 
need for lawyers; they should not be placed in the position of 
evaluating those objectives.

Another, superficially more plausible, m eans th a t has 
been suggested for m ain tain ing  m inority enrollm ent is to 
convert special admissions program s into program s for the 
economically disadvantaged. The underlying theory seems 
to be th a t a substan tial num ber of m inority group members 
will gain admission to law schools under such a program  be­
cause m inorities are disproportionately included among the 
economically disadvantaged. Here again, the theory de­
pends upon ignoring the facts. A lthough racial m inorities 
are disproportionately included among the  economically 
disadvantaged, approxim ately two-thirds of all disadvan­
taged fam ilies are w hite.34 Even if we were to assum e th a t

34. Bureau of the Census, Current Population Reports, Series P-60, No.



37

disadvantaged m inorities would apply for admission to law 
school in proportion to the ir num bers, the size of special ad­
missions program s would have to be trebled to m ain tain  the 
present representation of m inorities in law schools. A school 
th a t now specially adm its 10% m inorities would be required 
to extend its program  to 30% of the class.35 But there is no 
reason to believe th a t there would be anything like th a t pro­
portion of m inority applicants presenting credentials equal 
to those of w hite applicants w ith whom they would be in 
competition.

The best data  now available as to the probable composition 
of any such disadvantaged  special adm issions program  
suggest tha t, among the present pool of applicants, over 90% 
of those who would be adm itted under such a program would 
be neither black nor Chicano.36 And even th is necessarily 
understates the problem. However schools advertise their 
special admissions programs, it is understood th a t these 
program s are essentially lim ited to members of m inority 
groups. But once it is learned th a t an applicant of any race 
possessing academic credentials substantially  lower than  
those ordinarily required for admission can gain admission 
if the applicant shows economic disadvantage, it can be pre­
dicted w ith certain ty  th a t two things will happen: (i) there 
will be a substantial num ber of unverified and unverifiable 
claims of childhood economic disadvantage and (ii) there  will 
be a large num ber of potential applicants who now do not 
apply who will seek to take advantage of the program.

103, "Money Income and Poverty Status of Families and Persons in the 
United States: 1975 and 1974 Revisions” (Advance Report 1976).

35. Even if the schools were willing to expand the programs to this ex­
tent, their inability to provide financial assistance to so sharply increased 
a number of disadvantaged students would necessarily lead to a very sub­
stantial reduction in the number of minority students, if the programs 
were to operate in a racially neutral manner.

36. Evans Report at 62.



38
Moreover, one effect of a racially neu tra l disadvantaged 

program, as distinct from a m inority program , would be to 
elim inate those blacks and other m inorities who now are 
able to gain admission but who could not reasonably claim a 
disadvantage other than  race. Among m inorities, as among 
whites, applicants who come from low-income families have, 
in general, substantially  lower LSAT scores and GPAs than  
those who do not.37 Many of these la tte r  applicants consti­
tu te  the most promising of those adm itted under the present 
special admissions programs. Yet it is ju s t these applicants 
who will be denied admission under a racially neu tra l pro­
gram  for the disadvantaged.

There is, regrettably, one final alternative still to be con­
sidered. The suggestion th a t professional schools abandon 
special m inority admissions program s in  favor of programs 
for the disadvantaged or th a t they seek to m ain tain  m inority 
enrollm ents by reducing reliance on quan tita tive predictors 
of academic performance may rest upon the premise th a t 
either of these alternatives would perm it race to be taken 
into account sub rosa. We do not imply th a t the court below 
m eant to invite such an in terpreta tion  of those suggestions, 
but there are others who have suggested th a t in the effort to 
achieve racial equality "we cannot afford complete openness 
and frankness on the part of the legislature, executive, or 
judiciary.” K aplan, Equal Justice in an Unequal World: 
Equality for the Negro—The Problem o f Special Treatment, 
61 Nw. U. L. Rev. 361, 410 (1966). It need hardly be said in 
response th a t a constitu tional principle designed to be 
flouted should not be imposed on schools dedicated to teach­
ing the role of law in our society.

37. Id. at 61.



39
II. SPECIAL MINORITY ADMISSIONS PROGRAMS 

SERVE COMPELLING SOCIAL INTERESTS
Section I of our B rief has dem onstrated th a t special adm is­

sions program s are indispensable if more than  a minuscule 
num ber of m inority group members are to be represented 
w ithin the student bodies of American law schools. The 
widespread adoption of such program s reflects the consensus 
of law faculties th a t it would be intolerable to have such m in­
im al m inority representation in educational institu tions 
th a t play so im portant a role in  the life of the nation. In this 
section of the Brief, we identify the reasons th a t have led to 
th a t consensus, and we show th a t the means relied upon are 
reasonable and effective.

We observe prelim inarily  th a t the justification for special 
admissions program s cannot be considered in  isolation from 
the historical and social conditions th a t have created the 
need for them. The decisions of th is Court—from Bred Scott 
v. Sanford, 19 How. 393 (1857) to Strauderv. West Virginia, 
100 U.S. 303 (1880) to Brown v. Board of Education, 347 U.S. 
483 (1954) and beyond—amply record the efforts to exclude 
cial m inorities from full participation in American life. 
U ntil very recently, racial m inorities were almost entirely 
foreclosed from a role in  the nation’s public life, not only by 
excluding them  from elective and appointive office in na­
tional, state, and local government but, in m any sections of 
the country, by denying them  the fundam ental rights and 
obligations of citizenship, including the franchise and the 
opportunity to serve on grand and petit juries. Their children 
were required to attend  segregated and generally inferior 
schools. They often received lower levels of governmental 
services th a n  w hites and some services were a t tim es simply 
w ithheld from them . In the private sector, m inorities fared 
no better. By custom, and occasionally by law, they were re l­
egated to the least desirable employment, to jobs th a t paid



40
substan tially  less th an  those open to w hites and th a t offered 
neither an opportunity for advancem ent nor a chance to par­
ticipate in the m any im portan t decisions made in  the private 
sector. The housing available to them  displayed a sim ilar 
pattern . Life in the ghetto and the  barrio  not only deprived 
m inorities of contact w ith the  dom inant society, it subjected 
them  to crowding, inadequate public services, and often to 
housing th a t failed to m eet the  m inim al standards of our so­
ciety. The unp leasan t bu t inescapable tru th  is th a t, the Con­
s titu tio n  no tw ith stand ing , th e re  existed  in  the  U nited  
S tates a v irtual caste system.

The legacy of th a t history is the reality  we now confront. 
Despite the im portant beginnings th a t have been made since 
enactm ent of the Civil R ights Act of 1964, racial m inorities 
are not—and are not close to being—full participants in 
American life. By every social indicator they continue to 
constitute an  underclass in  our society. Their income, life 
expectancies, and educational a tta inm en ts are lower than  
those of whites. F inally, and of more im m ediate concern in 
this case, racial m inorities constitute approxim ately 17% of 
the total population but, as of the 1970 census, barely more 
than  1.9% of the m em bership of the bar.38

The nation is now committed to elim inating  th is legacy of 
racism. We have undertaken  to remove the vestiges of caste 
from our society, not only by im proving the conditions of life 
among historically disadvantaged m inorities, but also by 
creating a racially  in tegrated  society. The question p resent­
ed in th is case is w hether, now th a t we have made th a t com­
m itm ent, the Constitution should be construed to forbid 
m easures th a t are essential to its performance.

There are those who argue th a t special admissions pro­
grams and other m easures designed to hasten  the integra-

38. Bureau of the Census, Detailed Characteristics of the Population, 
Table 223 (1970).



41
tion of our society are unw arranted  precisely because the n a ­
tion’s com m itm ent to racial equality  is so recent. Now th a t 
the historic barriers to equality have been removed, they 
m ain tain , the members of m inority groups may be expected 
over tim e to share equally w ith other Americans in  the full 
range of opportunities th a t the nation offers to its citizens. 
The effects of decades, even centuries, of exclusion cannot be 
overcome in  a few years. Thus, they assert, even though the 
present generation of m inority students may not be able to 
compete successfully for admission to professional schools, 
there  is no reason to suppose th a t subsequent generations, 
having received a more nearly  equal prim ary and secondary 
education, will not be able to do so.

We share the hopes of these critics. Indeed, it is because we 
believe th a t the com m itm ent to racial equality in  all spheres 
of Am erican life will eventually elim inate the need for spe­
cial adm issions program s th a t, throughout th is Brief, we 
stress th e ir tran sien t nature. But the fact th a t the programs 
may some day be unnecessary does not m ean th a t they are 
not necessary now. The U nited S tates faces no task  more im ­
perative than  fulfilling its promise of racial equality. If th a t 
promise is to be m et, and if those to whom the promise has 
been made are to accept th a t it has been made in good faith, 
we m ust approach it w ith a degree of urgency greater than  
th a t conveyed by the prediction th a t equality will come some 
day.

Any effort to achieve racial equality must, if it is to suc­
ceed, begin w ith an  awareness th a t, in  the  United S tates to­
day, race is a socially significant characteristic. Race, in 
other words, is not m erely a superficial aspect of "deeper” 
social problems such as poverty or inadequate education. It 
is in tegral to those problems. Many Americans, but espe­
cially those who are members of the groups th a t are the im ­
m ediate beneficiaries of special admissions programs, live in



42
communities and belong to organizations th a t are defined in 
racial and ethnic term s. The direction of the ir loyalties and 
the ir sym pathies are significantly determ ined by th e ir ra ­
cial and ethnic identifications. W hether, or to w hat extent, 
th a t is desirable is currently  the subject of much debate. 
Such identification may, as some contend, lead only to 
divisiveness. Or, as others m ain tain , i t  may foster a sense of 
belonging and a pride in cu ltural origins. But w hether i t  is 
good or bad, it  is a reality  w ith which law and the in s titu ­
tions of A m erican life m ust contend.

In  these  circum stances, th e  question w hether rac ia l 
m inorities are  su b stan tia lly  represen ted  in  law  school 
classes and a t the bar assum es crucial importance. Gross 
underrepresentation of these groups has consequences quite 
different from those th a t would resu lt from, say, gross 
underrepresentation of persons with one blue and one green 
eye. Individuals who share th a t characteristic have not h is­
torically been segregated by our society, nor otherwise sub­
jected  to genera tions of invidious d iscrim ination . Gov­
ernm ental decisions do not affect them  differently th an  they 
affect other persons and, conversely, th e ir views on issues of 
public policy are likely to be distributed in the same way as 
in the general population. In each of these respects, in ­
dividuals who share only a socially irrelevan t characteristic 
differ from the members of racial minorities. And, as we now 
seek to dem onstrate, it is precisely because of these dif­
ferences th a t gross underrepresentation of the la tte r  in  law 
schools and a t the bar is a pressing social problem.

A. The Need For More Minority Lawyers is Critical
The most im portant reason for special admissions pro­

gram s in  the law schools is, quite simply, th a t there is a crit­
ical need for more m inority lawyers. The 1970 census, as 
noted above, reported th a t racial m inorities, which consti-



43
tu te  approxim ately 17% of the  population, represented 
barely more th a n  1.9% of the bar. However dram atic, this 
gross s ta tistic  does not begin to convey the desperate short­
age of m inority lawyers. A 1968 survey revealed th a t before 
special admissions program s began to have an effect there 
were, in  th e  en tire  South, only 506 black law yers. In 
M ississipp i, w here  th e  b lack  p o p u la tio n  w as n ea rly  
1,000,000, there were 9 practicing black lawyers. In A la­
bam a, w ith an even larger population of blacks, there were 
bu t 20 and in Georgia only 34.39

In draw ing atten tion  to th is data, we do not suggest th a t 
any of the compelling reasons for increasing m inority repre­
sentation a t the bar th a t are detailed below require repre­
sentation proportional to the relative size of the minority. 
Opponents of special adm issions program s have a t times 
sought to characterize the program s as an  a ttem pt to achieve 
such representation among lawyers, an a ttem pt th a t would, 
they then  contend, necessarily imply m aximum quotas for 
each racia l and ethnic group in  the  profession. S tated  
bluntly, this objection is simply a "red herring .” The data set 
forth in  the  preceding paragraph  and elsewhere in this Brief 
dem onstrate th a t neither now nor in  the foreseeable future 
can there be any question of proportional representation in 
the bar. The serious question is w hether publicly-supported 
schools can take  steps to assure th a t the representation of 
m inorities a t the bar is to be more than  negligible. Reasons 
of compelling social importance, to which we now tu rn , re­
quire an affirm ative answ er to th a t question.

1. T h e P u b lic  R ole  o f  th e  L egal P r o fess io n
N early 150 years ago, de Tocqueville described the crucial

39. SeeGeHhorn,TheLawSchoolsandtheNegro, 1968DukeL.J. 1069, 
1073-74.



44

role of the legal profession in  the U nited States. Lawyers, he 
wrote,

are natu ra lly  called upon to occupy most of the pub­
lic stations. They fill the legislative assemblies and 
they conduct the adm inistration; they consequently 
exercise a powerful influence upon the formation of 
the law, and upon its execution. 1 A. de Tocqueville, 
Democracy in Am erica  329-30 (Schocken ed. 1961).

Time has added prescience to the keenness of these observa­
tions. Even more than  in de Tocqueville’s tim e lawyers now 
"form the highest political class” in the nation. No other pro­
fessional group, no other single class of citizens, excercises or 
comes close to exercising as pervasive an influence upon the 
operations of government.

Of the nearly 400,000 lawyers in  the U nited S tates today, 
approxim ately 50,000 are employed by federal, state, and 
local governments. They serve as legislators and as staff to 
le g is la tu re s ;  as policy  m a k e rs , a d m in is tra to r s ,  and  
litigators w ithin the executive departm ents; and as judges 
and staff to the judicial system. Nor is the public role of 
lawyers confined to the public offices they hold. Acting on 
behalf of private in terests, they exert a powerful influence 
on public policy, serving not only as interm ediaries between 
citizens and the ir governm ents, but also as the architects of 
law reform aimed a t m aking governm ent responsive to the 
needs and in terests of the citizenry. No less im portant, if 
often less fully appreciated, lawyers in terp re t the actions of 
governm ent to the ir clients and th e ir communities, and 
thereby serve a crucial role in achieving public understand­
ing and acceptance of those actions.

The public influence of lawyers extends far beyond the ir 
formal roles in governm ent or in representing clients in 
the ir dealings with government. Despite the im portance of 
governm ent in the modern world, the direction of our society 
and the quality  of our national life depend not only, and



45

perhaps not even most im portantly, upon the decisions of 
governm ent, bu t also upon the m yriad decisions made in the 
private sector. H ere too the influence of lawyers is pervasive. 
Lawyers frequently serve as members of the governing 
boards, as well as advisors to, private foundations, educa­
tional and charitable institu tions and corporations. They 
play an  im portant role in the labor movement. They are 
often in positions of leadership in the extraordinary variety 
of community and other organizations th a t play so vital a 
role in A m erican life. In all these varied roles, lawyers are 
influential molders of public policy.

Because of the public im portance of the legal profession, 
there is an im perative need th a t it include qualified repre­
sentatives of the diverse groups th a t constitute our society. 
Since pre-Revolutionary times, Americans have been com­
m itted to the democratic ideal th a t government derives 
legitim acy from the consent of the governed, an  ideal th a t we 
have historically understood to require the active and con­
tinuous participation of the governed in  the ir government, 
either directly or by representation. For th is reason, the fre­
quency w ith which lawyers are elected to public office alone 
suggests the im portance of increasing m inority membership 
in the bar. But as the preceding paragraphs dem onstrate, 
representation does not depend solely upon elected represen­
tatives.

In a society as complex as ours, representation throughout 
the vast network of public and private institutions which 
shape our national life is required to achieve the active and 
continuous participation in the governance of society upon 
which consent is founded. Decisions significantly affecting 
the lives of m inority group members are made daily by zon­
ing boards of appeal, transporta tion  departm ents, regu­
latory agencies—everywhere th a t decisions are made af­
fecting the lives of Americans. At times, perhaps often,



46

these decisions will have a different im pact upon m inority 
communities than  upon the white community. A m inority 
presence in  the  decision-m aking process increases the  
likelihood th a t those differences will be recognized and 
taken into account. Sim ilarly, a m inority presence in Wall 
S treet law firms, corporate law departm ents, labor union 
legal staffs, law faculties, and the boards of foundations 
and community organizations—indeed, in all the in s titu ­
tions in which the influence of lawyers is felt—is likely to 
a lte r the behavior of those institu tions in a host of subtle 
and perhaps not so subtle ways, m aking them  more re­
sponsive to the varying needs of m inority communities. No 
less significantly, the presence of m inorities in these in ­
stitutions provides evidence to the members of m inority 
groups th a t these im portant centers of American life are 
open to the ir members, evidence th a t may be expected to 
have an  im portant influence upon the ir acceptance of the 
institu tional framework of Am erican society.

A single illustration  may help to dem onstrate the urgency 
of increasing m inority representation a t the bar. One of the 
harshest indicators of the economic and social conditions of 
A merica’s racial m inorities is the fact th a t the ir members 
are disproportionately both the victims and the perpetrators 
of reported crimes. Nationwide, 28% of all persons arrested 
are members of a racial m inority.40 Unless the num ber of 
m inority lawyers is raised beyond th a t which existed prior to 
the commencement of special admissions program s and 
which will continue in the absence of such programs, the 
consequence m ust be a system of crim inal justice in which 
many of the defendants are black or Chicano but in  which

40. Bureau of the Census, Statistical Abstract of the United States, 
Table 271, at 162 (1976). This figure, of course, does not demonstrate the 
criminal propensity of any ethnic group. It must also be viewed in light of 
socio-economic conditions and the possibility of selective enforcement.



47

nearly all judges, prosecutors, and even defense counsel are 
white. Given the history of racial injustice in the United 
States, it is not to be expected th a t such a system can m ain­
ta in  the respect and confidence of the m inority communities 
th a t is so essential to its mission. We do not, of course, 
suggest th a t the fairness and credibility of the crim inal ju s­
tice system depend upon m inorities or non-minorities being 
prosecuted, defended, or judged by members of the ir own 
groups. But we do m ain tain  th a t the visible presence of 
m inorities as prosecutors, defense counsel, and judges is es­
sential to the appearance of justice, as well as to its reality.

The im portance of a visible, and therefore a substantial, 
m inority presence is obviously not lim ited to the crim inal 
justice system. I t exists wherever decisions are made th a t 
affect minorities, and th a t, as we have suggested, means 
th a t it exists wherever decisions are made affecting Ameri­
cans. On the other hand, th is is not the objective of special 
admissions since, of course, i t  is neither possible nor neces­
sary to have m inorities represented wherever decisions af­
fecting m inorities are made. But substantially  increased 
num bers of m inority lawyers will inevitably have the effect 
of rendering the decision-making processes of the system as 
a whole more cognizant of th e  d istinctive  in te rests  of 
minorities.
2. S erv in g  th e  L egal N eed s  o f  M inority  C om m unities

Increasing the num ber of m inority lawyers is necessary 
also to serve adequately the legal needs of the members of 
m inority communities. In sta ting  the existence of this need, 
we are mindful of the ideal eloquently expressed by Justice 
Douglas in  his DeFunis dissent, th a t "[t]he purpose of [a 
sta te  university] cannot be to produce Black lawyers for 
Blacks, Polish lawyers for Poles, Jew ish lawyers for Jews, 
Irish  lawyers for the Irish. It should be to produce good 
lawyers for Am ericans.” 416 U.S. a t 342. This is a compelling



48

social and political ideal. Constitutional law ought not, how­
ever, in  the single-minded pursu it of th a t ideal, ignore the 
existence of other values or the reality  of the society in  which 
we live. A lthough it would be absurd to suppose th a t only a 
Jew ish lawyer can adequately represent a Jew  or th a t only a 
black lawyer can adequately represent a black, i t  is true  
nonetheless th a t m any Jew s and m any blacks (like many 
persons of other backgrounds) would prefer to be represented 
by lawyers w ith an ethnic and racial identity  sim ilar to the ir 
own. Nor should the existence of these preferences occasion 
surprise. Beyond the na tu ra l affinity which m any persons 
feel w ith persons of a common cultural background, the his­
tory and in some m easure the present reality  of our society 
afford the members of some racial and ethnic m inorities 
ample reason to perceive the dom inant society as alien and 
to regard it w ith suspicion and even hostility. W hen the need 
for legal assistance arises, often a t a tim e of anxiety or crisis, 
they may feel the need to tu rn  to a lawyer whom they tru s t to 
understand  and to em pathize w ith th e ir situation. Law 
schools need not endorse these feelings to recognize the ir 
existence and the im portance of providing some outlet for 
them.

In a society in  which racial and ethnic identities play an 
im portant role in everyday life, moreover, a law yer’s racial 
or ethnic background may have an  im portant bearing on his 
ability to serve his client. Many of the tasks th a t lawyers 
perform for th e ir clients require an understanding of the so­
cial context in which the client’s problem arises. A brillian t 
and effective tax  specialist is, for th a t reason, unlikely to be 
an effective representative in a labor negotiation. The rea ­
son is not simply th a t he is unfam iliar with the law of labor 
relations, it is also and perhaps prim arily  th a t he lacks an 
understanding of the practical problems of labor relations, of 
the customs th a t have developed in dealing w ith those prob-



49
lems, and of the style and m anners of collective bargaining. 
To the extent th a t racial and ethnic groups form distinctive 
subcultures w ithin our society, the representation of some of 
the ir members in  connection with some of the ir legal needs 
m ay involve sim ilar difficulties for the "outsider.” The abil­
ity to "speak the language” of the client, to understand his 
perception of his problem, and to deal w ith others in the 
community on his behalf are qualities essential to being a 
"good law yer.” These qualifications are more likely to be 
found among lawyers who share the client’s racial or ethnic 
identity, a t least to the ex ten t th a t the client’s life is bound 
up in  a community defined in  these term s.

B. A R a c ia lly  D iv erse  S tu d en t B o d y  Is Im p ortan t For A  
S o u n d  L eg a l E d u ca tio n

At least since the tim e of Plato it has been understood th a t 
those who govern require an  understanding of the  governed. 
The need is common to all forms of governm ent, but in a de­
mocracy it is critical. In the U nited States, as we have previ­
ously observed, lawyers play a crucial role in the governance 
of the nation. Successful performance of th a t role requires an 
understanding of the diverse elem ents th a t comprise our 
p luralistic society. The need for such an understanding is 
hard ly  less im portan t to successful perform ance of the 
law yer’s role in the representation of private interests.

F or these reasons, a major objective of legal education is to 
assist students in acquiring an  understanding of the social 
environm ent w ithin which legal decisions are made. I t is in­
evitable th a t th is understanding, so far as it can be gained in 
an academic setting, will be acquired largely from books. To 
a substan tial degree, however, i t  is also acquired by in terac­
tion among students, through exposure to differing points of 
view in class discussion and in less formal settings. The im ­
portance of these interactions to the education of lawyers



50

was recognized by th is Court more than  a quarte r century 
ago in Sweatt v. Painter, 339 U.S. 629, 634 (1950): " [A l­
though the law is a highly learned profession,” Mr. Chief 
Justice Vinson wrote for the Court,

we are well aw are th a t it is an intensely practical 
one. The law school, the proving ground for legal 
learning and practice, cannot be effective in  isola­
tion from the individuals and institu tions with 
which the law  interacts. Few students and no one 
who has practiced law would choose to study in an 
academic vacuum, removed from the in terplay  of 
ideas and the exchange of views with which the law 
is concerned.

The Court’s concern in Sw eatt was, of course, the need of 
black law students to in teract with th e ir w hite counterparts. 
But there is no less need for whites to in teract w ith blacks.

The im portance th a t the law faculties a ttach  to achieving 
diversity w ithin th e ir student bodies is revealed in the ad­
mission practices described earlier. Of course, with respect 
to m any of the characteristics th a t are socially significant in 
our p luralistic society, substan tial heterogeneity is achieved 
w ithout deviating from admission criteria  concerned only 
with predicting the level of an applicant’s academic per­
formance. Thus, even though on the average w hite appli­
cants from low income families have lower LSAT scores and 
GPAs than  those from more affluent families, substantial 
num bers do qualify for admission, w ithout special consid­
eration, a t schools which have varying admissions s tan ­
dards.41 To the extent th a t diversity is not achieved in this 
way, the schools commonly rely upon non-academic factors 
to achieve it, always subject to the requirem ent th a t an  ap­
plicant’s predicted level of performance exceeds a school’s 
m inim um  standards. Thus, some schools give preference to 
students from geographical areas th a t otherwise would not

41. Evans Report at 63.



51

be represented in the ir student bodies. Many, perhaps most, 
are likely to prefer a student who has an uncommon back­
ground—e.g., substan tial experience in business or law en­
forcement or, perhaps advanced train ing  in economics or 
psychology—to others who have scored higher on predictors 
of academic success. The admission decision in all such cases 
rests upon the judgm ent of schools th a t the existence of this 
diversity will contribute to the education of other students in 
the class.

In view of the im portance of race in American life and the 
im portance th a t it is certain  to have for the indefinite future, 
it would be s tartling  if faculties had not concluded th a t the 
absence of racial m inorities in  law schools, or the ir presence 
only in  very small num bers, would significantly detract from 
the educational experience of the student body. As a conse­
quence of our history, race accounts for some of the most im ­
portan t differences in  our society. Precisely because race is 
so significant, prospective lawyers need knowledge of the 
backgrounds, views, a ttitudes, aspirations, and m aners of 
the members of racial minorities. It is true, or course, th a t 
the members of a m inority group often differ with respect to 
these characteristics, and th a t w ith respect to some or all of 
them  some members of m inority groups are indistinguisha­
ble from m any whites. Encountering these diversities and 
sim ilarities is, however, an im portant part of the educa­
tional process. Well intentioned whites, no less than  bigots, 
need to learn  th a t there is not a common "black experience” 
and to appreciate the oversimplification of such statem ents 
as "blacks w ant (believe, need, etc.). . . .” Moreover, the dis­
tribution of attitudes among blacks, or among the members 
of other racial minorities, undoubtedly is not the same as it is 
among whites. And th a t too is worth knowing. If the dis­
tribution of perceptions and views about politics or crime or 
family is different among the several m inority groups than



52

among whites, th a t in and of itse lf may exert a shaping in ­
fluence upon law and public policy, an  influence to which law 
students m ust become sensitive if they are adequately to 
serve th e ir fu ture clients and perform successfully th e ir fu­
tu re  roles as community leaders.

The educational objectives of a m inority presence in law 
school, finally, encompass more th an  increased understand­
ing of m inority groups. There is also a need to increase effec­
tive communication across racial lines. The difficulties th a t 
stand  in the way of achieving such communication are not 
always obvious. Thus, an experienced law teacher has re ­
cently w ritten:42

I cannot im agine th a t any law teacher whose sub­
ject m a tte r requires discussion of racially  sensitive 
issues can have failed to observe the inability  of 
some W hite students to exam ine critically a rgu ­
m ents by a Black, or the difficulty experienced by 
others in  expressing th e ir  d isagreem ents w ith 
Blacks on such issues. Yet, these skills are not only 
a professional necessity, they are indispensable to 
the long-term  well-being of our society.

We have developed the educational objectives of special 
admissions program s a t some length because of th e ir im ­
portance and because they are m atters about which law 
teachers may claim to speak w ith special competence. The 
im portance of those objectives has already and only recently 
been recognized by this Court, albeit in a somewhat different 
context. Thus in Sw ann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 16(1971), the Court acknowledged 
th a t it was w ithin the authority  of school officials to assign 
pupils by race "in order to prepare students to live in a 
p luralistic society.” Most law faculties, w ith the approval of 
the governing bodies of the ir institu tions, have sim ilarly

42. Sandalow, Racial Preferences in Higher Education: Political Re­
sponsibility and the Judicial Role, 42 U. Chi. L. Rev. 653, 684 (1975).



53

concluded th a t the educational environm ent necessary to 
assure a sound legal education requires a racially in tegrated  
student body.

C. Minority Group Lawyers Will Contribute To The Social 
Mobility of Racial Minorities

The special adm issions program s th a t have been under­
taken  by the  law schools m ust be seen as part of a larger 
effort by the nation to improve the conditions of life of some 
of its  most disadvantaged citizens. In p a rt th a t effort in ­
volves an a ttem pt to accelerate the growth of a "middle 
class” w ithin those racial and ethnic m inority groups th a t 
historically have been denied the opportunity to participate 
fully in the richness of Am erican life. The justification for 
m inority preferences w ithin th a t overall strategy is not dif­
ficult to discern: because of the continuing im portance of ra ­
cial and ethnic identifications and loyalties, there is reason 
to anticipate th a t the strengthening  of the black, Chicano, or 
Puerto Rican middle class th rough such preferences will 
have a catalytic effect. Increased num bers of black and His­
panic lawyers and other professionals should encourage the 
aspirations of black and Hispanic children. The organiza­
tional ta len t and financial resources of a m inority middle 
class, experience suggests, will to some extent be put a t the 
service of less advantaged members of m inority groups. The 
hope, in short, is to set in motion a chain reaction leading to 
the break down of a complex of conditions th a t today con­
demn large num bers to lives of poverty and desperation.

But if  th is  chain reaction is to occur it m ust begin. Profes­
sional education is the last step in a long educational pro­
cess. The abilities of an  applicant to compete successfully for 
law school admission is the product not only of 16 years of 
previous schooling but also of the applicant’s cultural back­
ground, a background in tim ately  related  to the educational



54

attainm ents of the applicant’s parents and of other adults 
who have influenced his or her development. Even if there  
were now to be im m ediate and effective compliance w ith the 
command of Brown v. Board o f Education, and equal educa­
tional opportunity in prim ary and secondary schools were 
suddenly to become a reality , considerable tim e would have 
to elapse before the effect of these changes could signifi­
cantly affect the num ber and quality  of m inority applicants 
to law school. The command of Brown  is not completely 
obeyed, however, even after nearly  a quarte r century. And 
equal educational opportunity does not exist.

To deny professional schools the power to employ race-con­
scious adm issions s tandards is, thus, to w ithhold from 
m inorities, for a generation and perhaps longer, an impor­
ta n t avenue of social mobility. The costs of w ithholding 
realistic opportunities for professional education from the 
curren t generation of m inority students will not be borne 
only by them . It will be borne also by other members of 
m inority groups who will be denied the service th a t would 
have otherwise been provided to th e ir communities. It will 
be borne by the next generation of m inority children who, 
like those of previous generations, will lack a visible demon­
stration  of the potential rew ards of aspirations and effort. 
And, not least, it  will be borne by w hite Americans who, once 
again, will have failed to m eet th e ir  com m itm ent to achieve 
racial equality.
D. Special Adm issions Effectively Respond To The Need  

For More Minority Lawyers
M easured simply by the num ber of students in school, 

there can be no question th a t the special admissions pro­
gram s are a success: The num ber of m inority law students 
has grown from 1.3% of the law student population in 1964 to 
8.1% today. While th is is less than  half of the 17% m inority 
population in the country, the law schools have never pro-



55
posed stric t proportionality nor assumed th a t they could 
singlehandedly overcome the continuing obstacles created 
by the disadvantage suffered by m inority groups throughout 
our society and particu larly  in prim ary and secondary edu­
cation.

Success cannot be m easured, however, by adm ission 
statistics alone. If it could, the schools could simply set 
quotas and adm it the designated num ber of m inority s tu ­
dents w ithout regard to th e ir qualifications. They have not 
done so. Only 39% of the blacks who applied to law school in 
1975 were adm itted; th is contrasts w ith the adm ittance rate  
of 59% for the whites.43 W hat the law schools have done is 
to accept m inority applicants who, considering all of the fac­
tors deemed relevant, are believed to be qualified to succeed, 
while in some cases pu tting  an upper lim it on the num ber 
who will be adm itted on th a t showing.44

The question, nevertheless, rem ains as to w hether the 
special admissions program s can be said to be successful in 
term s of actual performance in school and, after graduation, 
in passing the bar exam ination. And there is a fu rther ques­
tion: To w hat extent, if any, does the  existence of special ad­
missions programs have the effect of stigm atizing m inority

43. Evans Report at 37.
44. Probable success at a particular school may, of course, be quite dif­

ferent from probable success at another. Thus one eastern school with very 
high admissions standards, as shown by its profile, has a minority admis­
sions program limited to approximately 10% of the entering class. See 
Fleming & Poliak, The Black Quota at Yale Law School—An Exchange of 
Letters, 19 The Public Interest 44, at 45 (Spring 1970). In this school the 
special admissions policy resulted in 1976 in no admission of any student 
with an LSAT below 550 and, below an LSAT of600, none with less than a 
3.5 undergraduate grade point average. 1976-77 Prelaw Handbook 375 
(1976). In 1972, the last year for which these figures are at hand, the me­
dian LSAT for that school’s class as a whole, including minorities, was 
723, for minorities, 648.1972-1973 Prelaw Handbook 345 (1972). To pick a 
random example at the other end of the country, the median LSAT at one- 
school in that same year was 585, id. at 153, and, excluding special admis­
sions, was 620 in 1976.1976-1977 Prelaw Handbook 153 (1976).



56

students as separate and unequal and thus im peding ra th e r 
than  accelerating the goal of an  in tegrated  society which 
these program s are designed to serve?

None of these considerations, as we show below, goes to the 
constitutional issue in th is case. But they are im portant to 
the law schools and to the society which the schools serve, 
and we therefore address them. In so doing, we are frank  to 
adm it th a t the record is not perfect. The conduct of the edu­
cational enterprise involves judgm ent and, a t tim es, exper­
im ents which are not always successful. M istakes have been 
made. The appropriate corrective for these m istakes, how­
ever, is the schools’ own in terest in  the success of th e ir effort, 
ra th e r than  a constitutional bar which prevents them  from 
m aking the effort. And the record is clear th a t the m istakes 
have, indeed, been largely corrected.

1. S u c c e ss  a t S ch oo l
The m istakes here have been of two varieties. The first 

was the notion th a t the absence of a strong educational 
background could be largely ignored. Some schools enrolled 
students who, it could reasonably be predicted, would have 
grave difficulty in  m eeting m inim um  standards of qualifica­
tion but coupled the ir admission with intensive tra in ing  and 
tu to ria l work during the sum m er before school began.45 The 
notion th a t a lifetime of deprivation could be compensated 
for by a few m onths of intensive preparation proved to be 
naive and rom antic, and it was quickly abandoned. The 
statistics given above (see p. 55, supra) as to the ratio  of 
m inority applicants to adm ittances dem onstrate th a t the 
day has long since passed, if  it ever existed except in  a few 
cases, when the desire to enroll m inorities m eant th a t any

45. Hughes, McKay & Winograd, The Disadvantaged Student and 
Preparation for Legal Education: The New York University Experience, 
1970 Tol. L. Rev. 701.



57

m em ber of a m inority group who applied was adm itted.
A second, and related, error was the  failure in some 

schools to give effect to the increased a ttrition  ra te  necessar­
ily im plicit in the institu tion of special admissions pro­
grams. Even the best indicators of law school performance 
are predictions subject to error. Given the escalated s tan ­
dards which some schools were using for regular admissions 
in the th ird  stage, the m argin for error was so large th a t it 
became custom ary to expect th a t alm ost none who were ad­
m itted would fail. When these schools began to adm it m inor­
ity students whose predicted performance, while above the 
passing level, was below th a t of the regular admissions pro­
cess, it  should have been anticipated th a t the attrition  rate  
would rise and would be concentrated predom inantly among 
those specially adm itted. Some schools failed to recognize 
this and regarded any substan tial num ber of failures among 
adm itted m inority students as symptoms of failure of the 
program  ra th e r than  as a necessary concomitant of success. 
Refusal by a school to adm it applicants who have an 80% 
chance of success would resu lt in denial of admission to 8 out 
of 10 who will succeed and to the 1 or 2 of th a t num ber who 
will succeed superbly. But the price of this 80% chance of 
success is a failure rate  of 20%, unless something else is 
done, a fact not im m ediately recognized by some.

Tutorial program s were generally institu ted  in an effort to 
alleviate the a ttrition  problem but here too a lack of experi­
ence sometimes resulted in ineffective programs. One com­
mon m istake was to assume th a t success of the programs 
would be enhanced if the num ber of those adm itted were 
small. The effect, in many cases, turned out to be precisely 
the opposite. The introduction of a very small num ber of 
m inority students into a previously all-white environm ent 
intensified pressures leading to poor performance which 
m ight not have existed if  there  were substantial representa-



58
tion from the m inority groups.46 In tim e and with experi­
ence, most of these difficulties have been resolved. U nfortu­
nately, we have no statistics showing a ttrition  rates by race 
for entering classes prior to 1971 and by th a t tim e the correc­
tion had been made by m any schools. (The available figures 
are set forth in the Table and C hart below.) The figures for 
1971 correspond to w hat one would expect. The a ttrition  ra te  
of all students had fallen from 38.4% in 1950 to 13% as law 
schools began moving from w hat we have called the second 
to the th ird  stage of the admissions process and became in ­
creasingly selective in adm itting  students. But the a ttrition  
ra te  for m inority students who first enrolled in 1971 was a l­
most 23%, a ra te  comparable to the 26% ra te  for all students 
in  1965.

W ith the increase in the quality and quantity  of m inority 
applicants in the succeeding years the m inority attrition  
rate  has now fallen to approxim ately 17%. The trend  is en­
couraging and indicates th a t the special admissions pro­
gram s are in general working as they were designed to.

46. Id. at 711-712.

T ab le  1

ENROLLMENT AND ATTRITION

Y ea r E ntered F irs t Y ear  E n ro llm en t A d ju sted  S econd  Y ear A ttr itio n  R a te
E nro llm en t

All Students Minority All Students Minority All Students Minority
1950 ■ 16,411 10,111 38.4%
1955 14,460 9,888 32.5
1960 15,607 10,958 29.8
1965 24,167 17,559 26.6
1970 34,289 30,073 12.7
1971 36,171 2,567 31,077 1,988 13.0 22.6%
1972 35,131 2,934 30,980 2,287 11.8 22.1
1973 37,018 3,114 33,489 2,602 9.5 16.4
1974 38,074 3,308 34,227 2,639 10.1 20.2
1975 39,083 3,413 35,189 2,846 10.0 16.6

Source: ABA, Lain S c h o o ls  a n d  B a r  A d m is s io n  R e q u ir e m e n ts  (1950M1976). This table was derived from enrollment 
data presented in each annual report of law school statistics. Second-year enrollments used in calculating attrition 
rate6 were adjusted by subtracting the number of second-year students in new schools approved after the count of 
first-year students for that entering class. Thus the first-year enrollments show all first-year students in ABA- 
approved law schools and the second-year enrollments show all second-year students enrolled the following year in 
those same schools.



59

2. Success in Passing the Bar
The early errors, both in admission and in dealing with 

those adm itted under special admissions programs, were 
also reflected in some cases in high failure rates of m inority 
graduates in the bar exam ination.

Here again the evidence is th a t the mistakes have been 
corrected and th a t th e  p ic tu re  is im proving. N ational 
statistics on bar exam ination passage rates are not available 
by race or ethnic group.47 However, a study was made in one 
state, California, as part of an  effort to determ ine w hether 
there was any racial or ethnic bias in the bar exam ination of 
th a t state. The study covered in full only the graduates of the 
law schools of California in the years 1970-73. It showed the 
expected increase in the num ber of m inority graduates, from 
59 in 1970 to 283 in  1973. I t also showed th a t the percentage

47. For an admittedly incomplete tabulation focusing primarily on 
blacks taking the bar examination, see Hinds, Keynote Introduction: "The 
Minority Candidate and the Bar Examination,” 5 Black L.J. 123, 124-36 
(1977). However, individual schools are often notified of the results of 
their graduates, from which some data has been gathered, and special 
programs such as CLEO seek to survey their participants to determine bar 
examination results.

Year



60

of those passing the bar exam ination on the first attem pt 
dropped from 51.9% in 1970, to 40.9% in 1971, and to 35.3% 
in 1972. In 1973, however, the percentage passing on the 
first tim e showed a slight increase, to 37.3%.48

We have no la ter figures for the state  as a whole, but we do 
have figures from one of the larger schools which contributed 
to the 1970-1973 decline, the U niversity of California a t Los 
Angeles. These show th a t in the period between 1970 and 
1973 the pass ra te  of m inority graduates tak ing  the bar ex­
am ination for the first tim e was less than  21%. These were 
the students, it will be remembered, who were adm itted a t 
the very early stages of the special adm issions program  in 
1967-1969. In 1973 the first-tim e passage ra te  rose to 23% 
and in the three years since th a t tim e the first-tim e passage 
ra te  has ranged between 39 and 50% ,49 S tatistics from other 
states and program s such as CLEO could be exam ined to 
show a sim ilar pa tte rn .50

Failures on the bar exam ination reflect in  part m istakes 
made in the early stages of development of special adm is­
sions program s and in  part the risks th a t the law schools 
have w illingly taken  in estab lish ing  those program s.51 
These failures have, concededly, created tensions. But those 
tensions are the unavoidable price which m ust be paid for 
the achievem ent of a tru ly  in tegrated  bar.

48. These figures are derived from Tables 1 through 4 of Appendix A to 
State Bar of California, Report of Commission to Study the Bar Examina­
tion Process (1973). They are summarized at California Legislative Anal­
ysis of the 1976-77 Budget Bill, Report of the Legislative Analyst to the 
Joint Legislative Budget Committee 820 (1976).

49. See Rappaport, The Case for Law School Minority Programs, Los 
Angeles Times, Opinions Section, p. 1 (Mar. 14, 1976).

50. See CLEO, Annual Report of Executive Director (1976).
51. For a further explanation of these developments, see Warren, Panel 

on "Factors Contributing to Bar Examination Failure,” 5 Black L. J. 149-52 
(1977). See also Carlson & Werts, Relationships Among Law School Pre­
dictors, Law School Performance, and Bar Examination Results, LSAC 
76-1, at vii (1976) ("The LSAT has a stronger relationship with bar exam­
ination performance than with law school grades.”).



61

3. The Argument on Stigmatization
W hat has gone before raises the one serious question 

which m any in educational circles and elsew here have 
raised as to the desirability  of special admissions programs. 
There is, concededly, a danger th a t th e  consequence of these 
program s m ay be to reinforce adverse stereotypes regarding 
in tellectual capability and thus re tard  continued develop­
m ent tow ard the goal of equality. On balance, however, the 
law schools of th is country have concluded th a t th is danger is 
far sm aller th an  the danger th a t these misconceptions will 
persist as the resu lt of exclusion of m inorities from the pro­
fession.

The argum ent has several th reads. The first goes to 
w hether in fact there is stigm a attached to admission under 
a special admissions program  as compared to the stigm a of 
denial. A lthough it  is true  th a t m inority students adm itted 
under special adm issions program s are somewhat lower on 
the predictors of law school performance, it is not true th a t 
unqualified applicants are being adm itted. And although it 
is true  th a t, on average, of those adm itted by special adm is­
sions some will perform a t a lower level than  others, it is also 
true  th a t some will perform far better. Finally, so far as we 
now know, the relative place on the scale of indicators and 
in law school grades is only very loosely related to relative 
competence in the practice of law. There are simply too many 
individuals—black and w hite—who have contributed sub­
stan tia lly  to the legal profession, though the ir law school 
careers were undistinguished, to tre a t relative grades let 
alone the predictors of those grades as constituting a m ark of 
inferiority. On the other hand, the presence of substantial 
num bers of members of m inority groups heretofore largely 
excluded from the profession m eans the addition of lawyers 
who, precisely because of the ir racial and ethnic characteris­
tics, will be in a unique position to contribute to the in tegra­
tion of American life.



62

Secondly, the argum ent th a t special adm issions program s 
should be abandoned because they stigm atize the preferred 
groups has a patronizing and paternalistic  ring  when u t­
tered by those who complain th a t they are denied admission 
because others are given a preference. If the professional 
schools had imposed these program s upon a re luc tan t m inor­
ity  th e  a rg u m en t m igh t, n ev e rth e less , be en title d  to 
credence. But the fact is th a t once the law schools of th is 
country let it be known in  the m inority com munities th a t 
admission to the schools was possible under special adm is­
sions programs, the dem and for th e ir continuance and, in­
deed, enlargem ent, has been overwhelming. The outrage 
expressed by v irtually  every segm ent of the m inority com­
m unity a t the decision of the court below bears testim ony to 
the conclusion th a t a prohibition of special adm issions pro­
gram s on constitutional grounds will hardly  be accepted as a 
benefit because it avoids stigm atization. We are confident 
th a t the briefs filed in  th is Court on behalf of those who 
would be excluded if the decision of the  court below is af­
firmed will amply confirm th a t testimony.

Finally, the argum ent th a t the program s should be discon­
tinued  because of the ir stigm atizing effect, if it has a place, is 
properly made not in  th is case but in  the educational and 
political forum. The com plaint in  th is case is not th a t special 
ad m issions p rog ram s are  u n fa ir  to b lacks and  o th e r 
m inorities and, hence, are unconstitutional. To the contrary, 
the complaint is th a t the program s are unconstitutional be­
cause they add a small num ber to the very large num ber of 
qualified white applicants who perforce m ust be denied ad­
mission to medical (and law) schools. There is, in th is case, 
we assert, no place for the argum ent th a t the p lain tiff should 
prevail on his constitutional claim  because it will, in the end, 
be good for those who are the real defendants in interest.



63
III. SPECIAL ADMISSIONS PROGRAMS ARE FULLY 

CONSISTENT WITH THE CONSTITUTION
Since the parties, and no doubt other amici, will fully brief 

the Court on the constitutional issues raised by special ad­
missions program s, we have thought we m ight render the 
greatest assistance by inform ing the Court of the im perative 
need for such program s in the law schools. We recognize, of 
course, th a t however compelling the need the programs can­
not be justified if  they transgress constitutional lim itations. 
It may be appropriate, therefore, th a t we state  briefly the 
reasons for our belief th a t the programs are fully consistent 
with the Constituion.

Students of constitutional law have expressed varying 
views about w hether special admission programs should be 
subjected to "strict judicial scrutiny” or w hether the ir valid­
ity should be judged under a more relaxed standard of re­
view. Redish,Preferential School Adm issions and the Equal 
Protection Clause: A n  Analysis o f the Competing Arguments, 
22 UCLA L. Rev. 343 (1974). We do n o ten ter this dispute, for 
its is abundantly  clear th a t the program s survive the most 
exacting scrutiny.

To m eet the test of such scrutiny, the Court has held, a 
governm ental program  m ust be "necessary to promote a 
compelling sta te  in terest.” Cipriano v. City o f Houma, 395 
U.S. 701, 704 (1969); D unn v. B lum stein, 405 U.S. 330 
(1972); In  re Griffiths, 413 U.S. 717 (1973). Section I of this 
B rief dem onstrates, beyond any possibility of doubt, the 
necessity for the programs. W ithout them , only a negligible 
num ber of m inority students would be enrolled in the na­
tion’s law schools. The program s are, moreover, aimed with 
precision a t the ir objectives, racially in tegrating  law schools 
and su b s ta n tia lly  in c reasin g  th e  num ber of m inority  
lawyers. Nor is there any realistic prospect th a t those objec­
tives can be met in any other way. Every alternative th a t has



64
been suggested would fail to produce any but a negligible 
num ber of m inority students. Most would, in  addition, have 
disastrous collateral effects upon the schools and the bar.

The only serious question, therefore, is w hether the pro­
gram s serve "a compelling state in terest.” Our reasons for 
believing th a t they do are set forth in detail a t pp. 39-54, 
supra. We can conceive of no governm ental in terests more 
compelling th an  in tegrating  the nation’s law schools, in ­
creasing the num ber of m inorities a t the bar, and achieving 
equality for m inority groups whose members have histori­
cally been denied opportunities th a t were the ir righ t as 
Americans.

The Court has not, of course, yet had an opportunity to 
speak directly to the issues in th is case. Several of its recent 
decisions, however, strongly support our conclusion th a t the 
Constitution perm its consideration of race in the service of 
goals such as those we have identified. We have already di­
rected atten tion  to Sw ann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 16 (1971) where the Court recog­
nized the propriety of race-conscious school assignm ents de­
signed "to prepare students to live in a pluralistic soci­
ety . . . .” The propriety of race-conscious program s aimed 
a t in tegrating  other governm ental institu tions was im plicit 
also in Washington v. Davis, 426 U.S. 229 (1976), where in 
rejecting the claim th a t W ashington’s selection criteria  for 
police officers discrim inated against blacks, the Court relied 
in p art on "the affirm ative efforts of the M etropolitan Police 
D epartm ent to recruit black officers. . . .”

Several cases decided during the past Term  have recog­
nized, even more directly, the propriety of governm ental ac­
tion aimed a t redressing historic injustices w ithin our soci­
ety. Thus, in United Jewish Organizations ofW illiam sburgh  
v. Carey, 97 S. Ct. 996 (1977), the Court sustained a race­
conscious reapportionm ent plan designed "to protect the op-



65
portunities for non-whites to be elected to public office” and 
thereby to assure fair representation of m inorities in the 
legislature. In th a t case, as in the present one, there was no 
finding of past discrim ination. But the Court held, "[t]he 
perm issible use of racial criteria  is not confined to elim inat­
ing the effects of past discrim inatory districting or appor­
tionm ent.” The governm ental action was "broadly rem edial” 
and, for th a t reason, fully consistent w ith the equal protec­
tion clause.

Sim ilarly, in Califano v. Webster, 97 S.Ct. 1192 (1977), the 
Court sustained a formula calculating social security bene­
fits th a t was more favorable to women than  to men. To w ith­
s ta n d  c o n s t i tu t io n a l  s c ru tin y , th e  C o u rt observ ed , 
" 'c lass ifica tio n  by gender m ust serve im p o rtan t gov­
ernm ental objectives . . . . ’ ” T hat test was met because 
"[Reduction of the disparity of economic conditions between 
men and women caused by the long history of discrim ination 
against women has been recognized as such an im portant 
governm ental objective.” The challenged classification did 
not, the Court stressed, rest upon "archaic and overbroad 
generalizations,” bu t upon a careful judgm ent of the need for 
preferential trea tm en t if the effects of the historic discrim i­
nation against women were to be redressed.

Webster and W illiamsburgh  are controlling in the present 
case. Here, as in those cases, the purpose of the challenged 
governm ental action is "broadly rem edial,” to overcome the 
effects of the historic discrim ination against minorities. 
Moreover, special m inority admissions program s do not rest 
upon "archaic and overbroad generalizations,” bu t upon a 
solid foundation of inform ation concerning the need for them  
if the compelling social objectives th a t they serve are to be 
met. Efforts will no doubt be made to distinguish Webster 
and W illiamsburgh  on the ground th a t neither involved the 
denial of a governm ental benefit to an  identifiable in-



66

dividual. But the fact th a t some students who m ight other­
wise be adm itted to law school are denied admission because 
of special admissions program s is not constitutionally rele­
vant. Since the num ber of qualified applicants exceeds the 
places available, any selection criteria  m ust exclude some­
one. The sole issue is w hether the criteria employed are con­
stitu tionally  permissible. In view of the compelling social 
needs th a t they serve, needs th a t could not be m et in any 
other way, we believe th a t the admissions criteria  employed 
in special admissions program s clearly m eet th a t test.

CO NC LU SIO N

The judgm ent below should be reversed.

Respectfully subm itted,

A. K enneth Pye 
Francis A. Allen 
Robert B. McKay 

Attorneys for the Association 
of Am erican Law  Schools

June 7, 1977

David E. Feller 
E rnest Gellhorn 
Terrance Sandalow 

Of Counsel