Bakke v. Regents Opening Brief of Appellant and Cross-Respondent
Public Court Documents
July 29, 1975
Cite this item
-
Brief Collection, LDF Court Filings. Bakke v. Regents Opening Brief of Appellant and Cross-Respondent, 1975. baa5b153-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c12a31ec-f95e-42b4-91c9-22e54d0f687a/bakke-v-regents-opening-brief-of-appellant-and-cross-respondent. Accessed April 29, 2025.
Copied!
S.F. 23311
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
ALLAN BAKKE, )
)Respondent and )
Cross-Appellant, )
)
vs. )
)
THE REGENTS OF THE UNIVERSITY )
OF CALIFORNIA, )
)
Appellant and )
Cross-Respondent. )
)
OPENING BRIEF
OF
APPELLANT AND CROSS-RESPONDENT
After Decision by the Superior Court
of the
County of Yolo, State of California
Numbered Therein 31287
Honorable F. Leslie Manker, Judge
DONALD L. REIDHAAR
JOHN F. LUNDBERG
GARY MORRISON
590 University Hall
2200 University Avenue
Berkeley, California 94720
Telephone: (415) 642-2822
Attorneys for Appellant
and Cross-Respondent
1
2
3
4
5
6
7
8
9
10
11
12
1 3
14
15
16
17
18
19
20
21
22
23
24
25
26
SUBJECT INDEX
Page
STATEMENT OF THE CASE
1. Introduction 1
2. Procedural History 1, 2 , 3
3. The Admissions Process at the
Davis Medical School . . . . 3, 4, 5, 6
a. The Regular Admissions Program 3, 4
b . The Special Admissions P r o g r a m ........ 4, 5, 6
1. Does the Equal Protection Clause of the United
States Constitution, the Privileges and Immuni
ties Clause of the California Constitution, or
Title VI of the Federal Civil Rights Act of 1964
deny officials of a state university discretion
to fill a limited number of places in a medical
school class with qualified members of ethnic
minority groups from disadvantaged backgrounds
for purposes of promoting diversity in the
school and in the medical profession and expand
ing medical education opportunities for such dis
advantaged members of minority groups? ........
2. Did the trial court correctly refuse to order
Bakke's admission to the Davis Medical School? . . 6
I. IN CHOOSING WHICH OF MANY QUALIFIED APPLICANTS
WILL BE OFFERED PLACES IN EACH YEAR'S ENTERING
CLASS AT THE DAVIS MEDICAL SCHOOL, THE UNIVERSITY
HAS DISCRETION TO FILL A REASONABLE NUMBER OF
THOSE PLACES BY GIVING SPECIAL CONSIDERATION TO
QUALIFIED DISADVANTAGED MEMBERS OF ETHNIC MINORITY
GROUPS ...................................... .. *
STATEMENT OF ISSUES 6
ARGUMENT 7
i.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
SUBJECT INDEX
Page
A. Professional Schools, Particularly Those
Within the University of California, Must
be Given Broad Discretion to Make Admis
sions Decisions ...................... 7-15
B. Neither the Equal Protection Clause of the
Fourteenth Amendment Nor the Privileges and
Immunities Clause of the California Consti
tution Denies University officials Discretion
to Give Special Consideration to a Reason
able Number of Qualified Minority Applicants,
When Such Consideration is Given for the
Purposes of Promoting Diversity in the
School and the Profession and Expanding
Medical Education Opportunities for Dis
advantaged Members of Minority Groups . . . 16-32
1. The Special Admissions Program Is Not
Per Se Unconstitutional, But Is
Consistent With the Purposes of the
Equal Protection Clause........ .. 16-20
2. Racial Classifications Designed to
Assist Minorities Are Not Subject to
the Same Strict Scrutiny as Classifi
cations Directed Against Minorities . . 21-25
3. The Efforts of the University to
Assure That Disadvantaged Members of
Minority Groups Have a Reasonable
Representation in the Davis Medical
School and in the Medical Profession
Serve Rational and Compelling Univer
sity Interests ........................26-32
II. THE ADMISSIONS STANDARDS USED BY THE DAVIS
MEDICAL SCHOOL ARE PERMITTED BY TITLE VI OF
THE CIVIL RIGHTS ACT OF 1964 . . . . . . . . 34, 35
III. THE TRIAL COURT CORRECTLY FOUND THAT BAKKE
WOULD NOT HAVE BEEN ADMITTED EVEN IF THERE
HAD BEEN NO SPECIAL ADMISSIONS PROGRAM . . . . 36-38
IV. CONCLUSION . . . . . . ........ . . . . . . . 39-41
li.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
TABLE OF AUTHORITIES CITED
CASES
Page
Alevy v. Downstate Medical Center (Sup. Ct. 1974)
78~ Misc. 2d 1091, 359 N.Y.S.2d'426, 429, aff'd
(2d Dep., 1975), 47 A.D.2d 715, 366 N.Y.S.2d
390 ................................. ..
Brown v. Board of Education (1954) 347 U.S. 483,
“ 494, 98 L.Ed. 873, 880-81 ...................
Carter v. Gallagher (8th Cir. 1971) 452 F.2d 315,
---3 31; cert, denied (1972) 406 U.S. 950,
32 L .Ed. 2d 338 ........ .................. *
Clarke v. Redeker (8th Cir. 1969) 406 F .2d 883,
cert, denied (1969) 396 U.S. 862 ..........
Conne11v v. University of Vermont and State_Agr.
Coll. (D. Vt. 1965) 244 F.Supp. 156 . . . . .
DeFunis v. Odeqaard (1973) 82 Wn.2d 11, 507 P.2d
116 9 j vacated as moot (1974) 416 U.S. 312,
40 L .Ed,2d 164, 185, (1974) 84 Wn.2d 617, 529,
438 ............................... ..
P. 2d
11, 29, 30
General Order and Memorandum (W.D. Mo. 1968)
4 T T T r7d7 “1 3 3, 141 ̂ • ~ ............................
Goldberg v. Regents of the University of California
(1967) 248 C .A.2d 867, 874 . ....................• *I
Graham v. Richardson (1971) 403 U.S. 365, 372,
29 L.Ed.2d 534, 541-542 .............................
Hamilton v. University of California (1934)
293 U.S. 245, 255; 79 L.Ed. 343, 349 ...............
Hirabayashi v « United States (1943) 320 U.S. 81,
100, 87 L.Ed. 1774, 1786 ................... .. . . .
iii.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
TABLE OF AUTHORITIES CITED
(c ontinua11onl
CASES
Page
Ishimatsu v. Regents of the University of California
(1968) 266 C .A .2d 854 ” 864 ................... • 11
Korematsu v. United States (1944) 323 U.S. 214,
---216, 223; '59 L . Ed.' 1947 199, 202 .............
Lau v. Nichols (1974) 414 U.S. 563, 39 L .Ed.2d 1
Loving v. Virginia (1967) 388 U.S. 1, 18 L.Ed.2d
T 5 1 0 , 1020 ...................* ..............
McLaughlin v. Florida (1964) 379 U.S. 184,
13 L.Ed.2d 222 . .............................
Norwalk Core v. Norwalk Redevelopment Agency
(2d Cir. 1968) 395 F.2d 920, 931-2 ..........
Oregon v. Mitchell (1970) 400 U.S. 112, 284,
27 L.Ed.2d"2727 373 .........................
People, ex. rel. Lynch v.
School District (1971)
San Diego Unified
T9_cTa .3d 252, 261
Porcelli v. Titus (3d Cir. 1970) 431 F.2d 1254,
1257 . . r. .".............................
San Antonio Indep. School District v..R_odrig_uez_
(1973) 411 U.S. 1, 98-110, 36 L.Ed.2d 16
(Justice Marshall dissenting)...............
San Francisco Unified School District v . Johnson
(1971) 3 C . 3d 937, 950, 9 5 1 ............ *
Slaughter-House Cases (1872) 83 U.S. 395, 407,
21 L.Ed. 59, 72 ...........................
Strauder v. West Virginia (1879) 100 U.S. 303,
306-3077 25‘L.Ed. 664, 665 .................
16, 24
23, 24
. 25
16, 20
17, 19
. 17
iv.
1
2
3
4
5
6
7
8
9
10
11
12
13,
14
15
16
17
18
19
20
21
22
23
24
25
26
TABLE OF AUTHORITIES CITED
(continuation)
CASES Page
Swann v. Charlotte-Mecklenburg Board of Education
(1971) 402 U.S. 1, 16, 28 L.Ed.2d 554, 566. .22, 23, 24
United States V. Carolene Products Company (1938)
304 U.S. 144, 152, n. 4; 82 L.Ed. 1234, 1242,
n. 4............................. 19
Wall v. Board of Regents, U.C. (1940) 38 C.A.2d
698 , 699 ........................................... 11
Williamson v. Lee Optical Company (1955) 348 U.S.
483, 99 L.Ed. 563 ............................. 20
Wong v. Regents of the University of California
(1971) 15 C . A . 3d 823. . . . .~........ .. . . . 12, 13
Wright v. Texas Southern University (5th Cir. 1968)
392 F . 2d 728. ...................................... 12
Yick-Wo v. Hopkins (1885) 118 U.S. 356, 373-374,
30 L.Ed.220, 223.................................... 19
v.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
STATUTES AND REGULATIONS
Page
42 U.S.C
45 C.F.R
45 C.F.R
45 C.F.R
45 C.F.R
Section
Section
Section
Section
Section
2000(d). . . .
80.3(b) (vii) (6)
8 0.4(1) and (2)
80.5(e). . . .
80.5 (j). . . .
2, 3, 6, 34
. . . . 35
. . . . 35
. . . . 35
. . . . 34
CONSTITUTIONAL PROVISIONS
Page
United States Constitution,
13th Amendment. . . . . 17, 18
United States Constitution,
14th Amendment. . . . 2, 3, 6, 17, 24, 30, 33
United States Constitution,
15th Amendment. . . . 17
California Constitution,
Article I, Section 21 .
California Constitution,
Article IX, Section 9 .
vi.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
PUBLICATIONS
Page
Bickel, The Original Understanding and the
Segregation Decision 69 Harvard L.Rev. 1, 60. . . 1/
Colwill, J., Jr., "Medical School Admissions as a
Reflection of Societal Needs", The Pharos,
publication of Alpha Omega Alpha (July 1973)
91, 92........ .....................................
Curtis, Blacks, Medical Schools and Society (1971)
University of Michigan Press, 147 .................
"Developments in the Law- Equal Protection" (1969)
82 Harv. L . Rev. 1965. . • • • * • * ...............
Dube and Johnson, "Study of U.S. Medical School
Applicants, 1972-73", 49 Jour. Med. Educ.,
849-869 (1974). . . . ...................
Ely, J . , The Constitutionality of _Reyerse_^aci^l.
Discrimination, 41 U. of Chicago L.Rev. 723
(1974) .................
"Graduate and Professional School Opportunities
for Minority Students", 5th Ed. (1973-74),
published by Educational Testing Service . . . . . iu
Griswold. E., Some Observations on the D,ejhinis__Case, ___
75 C o lu m .~LTRevu Wl2~, 5 T 4 -5T 5 (T9T5T^ * * 7 ' 10
Gunther, The Supreme Court, 1971 Term-g^rward:
In Search of Evolving Doctrine on a Changing
Court: A Model for a Newer Equal Ptotecjtion,
J T ~ E a r v . L.Rev. 1 (1972). ........... - ............ 25
Karst and Horowitz, Affirmat.iye_Aot^^r^ Egua^
Protection, (1974) 60 Va. L.Rev. 955, 956-965,
part of a Symposium entitled, ’"DeFunis : The
Road Not Taken" . ...........................
Kendrick, "Minority Students on Campus' xn The ̂
Minority Student on the Campus :_
ahTTos sib ill tie s ..........
8
29
Kurland, Egalitarianism and the Warren_Court,
68 Mich. L.Rev. 629, 674 (1970) . . . • - . 17
v n .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
PUBLICATIONS (continuation)
Page
"Medical School Admission Requirements, U.S.A.
and Canada" (24th Ed., 1974-75) published by
the Association of American Medical Colleges . . . 10
Nickel, J., Preferential Policies in Hiring and
Admissions! Sr~3jrfT§prudenFTaI 'AppToacTT)
75 Colum. ~L. Rev. 52Tj 5TF~*(1975) T ........... 2 7
O'Neill, R., Preferential Admissions, Equalizing
the Access~~oF~Mhorit.y~^r^upsl~Eo Higher- ~~
Education (1971) 80 Yale Law Journal 6~99, 735 . . 29
"'Reverse Prejudice': Medical School Issue", Medical
World News (March 10, 1975) 47-48 . . 7 T T . " . . 10
Thresher, "College Admissions and the Public
Interest" (1966) pp. 56-57, 59-61 . . . . . . . . . 9
1970 Census of Population: Detailed Characteristics -
California (PC(1) - D6), Table lT9 . . . . .~. . . 33
1970 Census of Population: Occupational Characteristics -
U .S ., Subject Report PC (2), Table 2 ...............26
Brief of the President and Fellows of Harvard
College, Amicus Curiae, U.S. Sup. Ct.,
DeFunis v. Odegaard, 5 2 . . . . . ............. 39,40
viii.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
S.F. 23311
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
ALLAN BAKKE, )
)
Respondent and )
Cross-Appellant, )
)
vs. )
)
THE REGENTS OF THE UNIVERSITY )
OF CALIFORNIA, )
}
Appellant and )
Cross-Respondent. )
)
OPENING BRIEF
OF
APPELLANT AND CROSS-RESPONDENT
After Decision by the Superior Court
of the
County of Yolo, State of California
Numbered Therein 31287
Honorable F. Leslie Manker, Judge
TO THE HONORABLE DONALD R. WRIGHT, CHIEF JUSTICE,
AND TO THE HONORABLE ASSOCIATE JUSTICES OF
THE SUPREME COURT OF THE STATE OF CALIFORNIA:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
STATEMENT OF THE CASE
1. Introduction
This case concerns the legality of a special
admissions program operated by Appellant and Cross-Respondent
The Regents of the University of California (hereafter
"University") at the School of Medicine of the University of
California, Davis (hereafter "Davis Medical School"). That
program gives special consideration to the minority group
status of qualified applicants from economically and educa
tionally disadvantaged backgrounds in filling a limited
number of spaces in each year's class for the purposes of
promoting diversity in the School and the profession, and
expanding medical education opportunities for disadvantaged
members of minority groups. (CT 388:31-389:6)
2. Procedural History
Respondent and Cross-Appellant. Allan Bakke (here
after "Bakke") unsuccessfully applied for admission to the
Davis Medical School for the academic years beginning
September 1973 and September 1974. (CT 387:15-17) Bakke brought
suit in the Yolo County Superior Court against the University
for a mandatory injunction ordering his admission, alleging
that his applications would have been accepted if members of
ethnic minority groups had not been admitted under the
special admissions program which he claimed discriminated
against him on the basis of his Caucasian race, in violation
1.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
of the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution, the Privileges and Immunities
Clause of the California Constitution (Article 1, Section 21)
and the Civil Rights Act of 1964 (42 U.S.C. § 2000(d)). (CT 1-4)
The University alleged that Bakke was not entitled
to an injunction ordering his admission because he would not
have been admitted even if there had been no special admissions
program and that the special admissions program was lawful.
(CT 24-26) In order to bring the issue of the legality of
the special admissions program squarely before the court
regardless of whether the operation of the program resulted
in Bakke's failure to be admitted, the University cross-
complained for declaratory relief as to the legality of the
special admissions program. (CT 29-31)
No testimony was taken at the trial and the case
was submitted on the following evidence:
The pleadings (CT 1-8; 24-33; 57-60);
The deposition and attached exhibits of
George H. Lowrey, M.D., the Associate
Dean and Director of Admissions at the
Davis Medical School (CT 141-281) ;
The declaration of George H. Lowrey, M.D.
(CT 61-73); and
Plaintiff's Answers to Defendant's Inter
rogatories (CT 48-55) .
///
2.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
The trial court found, on the UNIVERSITY'S cross
complaint for declaratory relief, that the special admissions
program violated the Fourteenth Amendment to the United
States Constitution, the Privileges and Immunities Clause of
the California Constitution, and Title VI of the Civil
Rights Act of 1964 (CT 390:29-391:4; CT 394:14-20)
The trial court also found that Bakke would not
have been accepted for admission, in either 1973 or 1974,
even if there had been no special admissions program, and
therefore declined to order his admission as requested in
his complaint for injunctive relief. (CT 389:20-390:4)
3. The Admissions Process at the Davis Medical__School_
a. The Regular Admissions Program
The admissions process at the Davis Medical School
is initiated by filing an application form which contains
Medical College Admissions Test (MCAT) scores, academic
background, personal information, and personal comments.
(CT 62:7-26; CT 112-116) After receiving the application
the applicant’s file is supplemented by letters of recommenda
tion and transcripts. (CT 62:8-10) Applicants' files are
screened by an Admissions Committee of faculty and students
chosen by the Dean of the Medical School. (CT 62:12-16)
Selected members of the Admissions Committee screen the files
to determine which of the applicants will be invited for a
personal interview. If an applicant is not interviewed he
is sent a letter of rejection. (CT 62:27-63:8) After the
3.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
interview the interviewer writes a summary of the interview
stating his evaluation of the interviewee’s potential contri
bution to the medical profession. The interviewer then
reviews the applicant's file, along with the results of the
interview, and rates the applicant on a scale of zero to
one hundred. The file, including the interview summary,
but not the rating of the interviewer, is then submitted to
a meeting of the Admissions Committee for a review and rating
by other members. The other members of the Admissions
Committee then rate each applicant on a scale of zero to one
hundred and the ratings are added for a combined numerical
rating. An applicant's combined numerical rating is used as
a bench mark for selection. (CT 63:13-32) For the class
entering in 1973, there were five raters and therefore a
maximum possible rating of 500; for 1974 there were six
raters and a maximum possible rating of 600 (CT 63:21-29)
b . The Special Admissions Program
The application forms permit minority applicants
from disadvantaged backgrounds to request consideration under
the special admissions program. Applicants making such a
request are considered by a subcommittee of the Admissions
Committee (hereafter "Special Admissions Committee").
Each application is screened first by the faculty chairman
of the Special Admissions Committee to determine whether the
applicant is disadvantaged. In making this determination,
the chairman looks at such factors as whether the student
4 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
has requested and been granted a waiver of his application fee,
which requires a means test; whether the student was an
Educational Opportunity Program (EOP) student in college;
whether the applicant worked during his undergraduate years
or interrupted his education to support himself or family
members; his parents' occupational and educational level;
and other information relative to disadvantage which is
volunteered by the applicant. Minority applicants from
nondisadvantaged backgrounds are referred to the regular
admissions process. (CT 64:28-66:10)
After the chairman of the Special Admissions
Committee has classified those students qualifying for
consideration as disadvantaged members of minority crroups,
their applications are reviewed in the same manner as all
other applications. The applications are screened to
determine which of such applicants will be invited for an
interview. Interviews are conducted and the interviewees
evaluated and given a combined numerical rating. (CT 66:11-25)
Acceptances are generally mailed to applicants at
four times during the year. Sixteen of the one hundred
places in each year's opening class are reserved for applicants
under the special admissions program. About one-half of
those offered admission through the special admissions
program choose to attend the Davis Medical School. Therefore,
as each batch of regular acceptance letters is mailed the
Special Amissions Committee selects approximately eight of
5.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
the most promising disadvantaged minority applicants and
makes a written and oral report to the regular Admissions
Committee concerning each. The regular Admissions Committee
then votes on whether the recommendations shall be con
firmed. Those confirmed are sent letters of acceptance.
(CT 66:26-67:9)
Every applicant accepted to the Davis Medical
School, whether admitted through the regular admissions
program or the special admissions program, is fully quali
fied for admission and will, in the opinion of the Admissions
Committee, contribute to the School and the profession.
(CT 67; 9-13)
sta t e m e n t of issues
1. Does the Equal Protection Clause of the United
States Constitution, the Privileges and Immunities Clause of
the California Constitution, or Title VI of the Federal
Civil Rights Act of 1964 deny officials of a state university
discretion to fill a limited number of places m a medical
school class with qualified members of ethnic minority
groups from disadvantaged backgrounds for purposes of
promoting diversity in the school and in the medical pro
fession and expanding medical education opportunities for
such disadvantaged members of minority groups?
2. Did the trial court correctly refuse to order
Bakke's admission to the Davis Medical School?
6.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
ARGUMENT
I. IN CHOOSING WHICH OF MANY QUALIFIED APPLICANTS WILL
BE OFFERED PLACES IN EACH YEAR'S ENTERING CLASS AT
THE DAVIS MEDICAL SCHOOL, THE UNIVERSITY HAS
DISCRETION TO FILL A REASONABLE NUMBER OF THOSE
PLACES BY GIVING SPECIAL CONSIDERATION TO QUALIFIED
DISADVANTAGED MEMBERS OF ETHNIC MINORITY GROUPS
A. Professional Schools, Particularly Those Within
the University of California, Must be Given
Broad Discretion to Make Admissions Decisions
Admissions officials at the Davis Medical School
have a responsibility to choose which 100 of the thousands
of applicants will best serve the School and the
profession. The discharge of that responsibility requires
the informed judgment of thoughtful professionals involved
in the health sciences in determining the needs of the School
and the profession and in developing admissions criteria
which fill those needs. Their task necessarily involves no
more and no less than a systematic development of special
or "preferential" standards through which the vast number of
applicants qualified to pursue medical studies are narrowed
to those few who can be accepted.
///
///............ ... ........... ......... — ----------------------
1/ For the class entering in 1973 the Davis Medical
School received 2,464 applications, that is
approximately 25 for each place; in 1974 there
were 3,737 applications, approximately 37 for
each place. (CT 62:3-7)
2/ See E. Griswold, Some Observations on the DeFunis Case,
75 Colum. L .Rev. 512, 51T-515 (1975T~
7.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
The abilities demonstrated by previous academic
records and standardized test scores form the basis for one
such preferential standard and an important one. But, an
outstanding academic record does not alone disclose whether
an applicant has those qualities of character or motivation
necessary for a good physician. For example, the school
may and does consider that the greater present need of the
medical profession is not for more academic doctors who may
favor medical research, but for family physicians who have
/
the personal qualities necessary to serve all income levels
in a practice in which success may not correlate with the
_3/
highest grades and test scores.
There are many other such preferential standards:
Schools often give preference to applicants who will bring
distinction and diversity to the school because of special
talents, skills, backgrounds and motivations; undergraduate
education at one institution may be preferred over under
graduate education at another; certain courses of study may
be preferred over others; one applicant's hobbies or work in
the community may make him more desirable than another
3/ See Karst and Horowitz, Affirmative Action and Equal
Protection (1974) 60 Va. L.Rev. 955, 956 — 965, part of
a' Symposium entitled "DeFunis : The Road Not Taken",
for a discussion of the common misconception that the
qrades and test scores necessarily correlate with
qualifications; J. Colwill, "Medical School Admissions
as a Reflection of Societal Needs", The^ Pharos, publica
tion of Alpha Omega Alpha (July 1973l~927^93.
8 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
applicant with higher grades who has no strong non-academic
interests; those who have shown leadership as undergraduates
may be given preference because they can be expected to bring
leadership and inspiration to other students while in school
and credit to the school in later life. See, e.g., Thresher,
College Admissions and the Public Interest (1966) pp. 56-57,
59-61.
Another common preference is based upon the appli
cant's residence. At many public institutions, by statute
or regulation, preference is required to be given to residents
of a state. See, e.g., Clarke v. Redeker (8th Cir. 1969)
406 F .2d 883, cert, denied (1969) 396 U.S. 862. Indeed, the
Davis Medical School gives preference to California residents
who are likely to return to areas in California in need of
physicians, especially such areas in northern California.
(CT 64:32-65:2)
The development of such preferential standards is
especially necessary in-medical schools because of the
tremendous number of applications for the few places in each
class: The Davis Medical School receives nearly 40 applications
for each place. (CT 62:3-7) Just as the School has determined
that its best interests and those of the profession are not
served by a class made up solely of those applicants with
the highest grades and test scores, it has similarly concluded
that those interests are not best served by a class containing
few, if any, disadvantaged members of minority groups. (CT 67:25—
9.
1
2
3
4
5
6
7
8
9
10
11
12
12
14
12
if
i;
IS
68:27) So, the School has instituted preferential standards
to assure a reasonable minority representation. Similar
programs have been instituted at many other medical schools
throughout the country. The same is true with respect
4/
to almost all law schools.
The courts have often recognized that the setting
of standards concerning the makeup of a student body is a
///
ZZZ_
3/ See "Medical School Admission Requirements, U.S.A. and
Canada" (24th Ed., 1974-75) published by the Association
of American Medical Colleges; "Graduate and Professional
School Opportunities for Minority Students , 5th Ed.
(1973-74), published by Educational Testing Service.
To take a few of many examples of such programs from
the compilation of catalogues in "Medical School
Admissions Requirements": Stanford University
School of Medicine has a "special program for
minority students from disadvantaged, educational
and social backgrounds. Under this program 12 students
of American citizenship are admitted to the M.D. program
annually." (p. 101) At the Harvard Medical School
"Special consideration is given to minority group
students who demonstrate the potential for successful
completion of the medical school curriculum (p. 163)
And at the University of Minnesota-Duluth School of
Medicine "A program has been established for regional
native Americans." (p. 177) The University of
Minnesota-Minneapolis Medical School_ has recently
established a special program in medical education
for minority students." (p. 179) These programs
have had some success. Approximately 10% of the
students beginning medical school in 1974 were Bla ,
Chicano, native American, or mainland United States
Puerto Ricans compared to 4.9% in 1969 See "’Reverse
Prejudice': Med School Issue", Meda^a^J^WJte^S-
(March 10, 1975) 47-48.
4/ E. Griswold, Some Observations on the DeFuni£__Case
” 75 Colum. L .Rev. 512, 5l6 (1973), a part oi a
"DeFunis Symposium" in the April 1975 Columbia Law
Review.
10.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
function primarily within the discretion of University
5/officials. In California, this discretion is rooted in
the State Constitution, which gives The Regents "full powers
of organization and government" over the University of
California. California Constitution Article IX, Section 9;
Hamilton v. University of California (1934) 2 93 U.S. 245,
255; 79 L.Ed. 343, 349. The University has been analogized
to "a branch of the state government equal and coordinate with
the legislature, the judiciary and the executive." 30 Ops. Cal.
Atty. Gen. 162, 166, quoted with favor in Ishimatsu v. Regents
of the University of California (1968) 266 C.A.2d 854, 864.
This constitutional power of The Regents includes,
of course, the right to determine admission standards. In
Wall v. Board of Regents, U.C. (1940) 38 C.A.2d 698, 699,
the Court referred to Article IX, Section 9, of the Constitution
and concluded that "this court has no right to interfere
with [the University's] government. The conclusions reached
by The Regents are final in the absence of fraud or opression."
See, also. Goldberg v. Regents of the University of California
(1967) 248 C .A .2d 867, 874.
5/ The decisions of the trial court in this case and the
~ trial court in DeF'unis v. Odegaard, which was overturned
by the Washington Supreme "Court (T973) 82 Wn.2d 11, 507 P .2d
1169, vacated as moot (1974) 416 U.S. 312, 40 L.Ed.2d 164,
are the only decisions of any court of which Appellant is
aware which uphold a challenge to the discretion of univer
sity officials to make admissions decisions and to adopt and
implement minority preference admissions programs.
11.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Even in the absence of constitutional powers,
decisions by college or university authorities regarding the
makeup of the student body are final and nonjusticiable in
the absence of proof they were made arbitrarily, capriciously,
or were motivated by bad faith. See Wright v. Texas Southern
University (5th Cir. 1968) 392 F.2d 728. In Wong v. Regents
of the University of California (1971) 15 C.A.3d 823, the
Court discussed the legal standards applicable to judicial
review of the judgment of a medical school on whether a
student, once admitted, should be permitted to continue in
school. The legal standards governing discretion to admit
could not be more stringent than those governing dismissal,
since the adverse effect on the student manifestly is greater
if he is dismissed than if he is merely denied admission.
Wong upheld the dismissal of a student after attending
medical school for four years. That decision referred
to the rule of judicial non-intervention in scholastic
affairs and quoted favorably from Connelly v. University
of Vermont and State Agr, Coll. (D. Vt. 1965) 244 F.Supp. 156,
as follows:
"The effect of these decisions is to give
the school authorities absolute discretion
in determining whether a student has been
delinquent in his studies, and to place
the burden on the student in showing that
his dismissal was motivated by arbitrariness,
12.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
capricousness or bad faith. The reason for
this rule is that in matters of scholarship,
the school authorities are uniquely qualified
by training and experience to judge the
qualifications of a student, and efficiency
of instruction depends in no small degree
upon the school faculty's freedom from
interference from other non-educational
tribunals.
"The rule of judicial non-intervention in
scholastic affairs is particularly
applicable in the case of a medical
school. A medical school must be the
judge of the qualifications of its
students to be granted a degree? courts
are not supposed to be learned in medicine
and are not qualified to pass opinion as
to the attainments of a student in medicine. . .
(Wong V. Regents, supra, 15 C.A.3d at 830.)
One of the reasons for this broad grant of power
is given eloquent expression in a recent Federal Court
opinion:
"If it is true as it may well be, that man is
in a race between education and catastrophe,
13.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
it is imperative that^educational institutions
not be limited in the performance of their
lawful missions by unwarranted judicial
interference."
(General Order and Memorandum (W.D. Mo. 1968)
45 F.R.D. 133, 141.)’
The minority preference at issue here is simply an
attempt by responsible professionals at the Davis Medical
School to do their job: design an educational policy to
produce physicians which best meet the needs of the School, the
medical profession, and ultimately the patients they will serve.
These needs are not best met by a medical profession which
continues to count in its ranks only a tiny percentage of
minority physicians. If the affirmative efforts by the
Davis Medical School to remedy this situation are halted by
the courts, the minority representation among physicians
will become even smaller as the competition for medical spaces
6/
becomes ever more severe. But if these efforts are
permitted to continue, the time will almost certainly come
when special minority admissions programs will no longer be
6/ In spite of the fact that many medical schools have
increased their enrollments in recent years, it is
increasingly difficult to gain admission to medical
school. In 1970 54% of applicants to medical schools
were unable to gain admittance. By 1972 the rejection
rate had risen to 72%. See Dube and Johnson, 'Study
of U.S. Medical School Applicants, 1972-73", 49 Jour.
Med. Educ. 849, 869 (1974)
14.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
necessary, as more and more disadvantaged members of minority
groups recognize that they can successfully aspire to medical
6a/
careers.
The special admissions program is like the myriad
of other preferential programs comprising the very heart of
the admissions process: Whenever one qualified applicant is
selected over another a "discrimination" takes place. But
these "discriminations" result from a responsible attempt to
meet legitimate educational needs. They do not violate
fundamental law.
///
///
///
///
///
///
///
///
///
/// ______________ __ ______________________________________
6a/ See J. Ely, The Constituionalitv of Reverse. ..B&sIa I
Discrimination, 41 U. of Chicago L.Rev. 723, 726,
n. 2 2 nin/ryT~ "The real hope lies, I think, in the
fact that parents seem to make a difference. . . .
If we underwrite a generation of Black professionals,
even a generation that does not do quite as well in
professional school as their White classmates, their
children and their children’s children may grow up
with interests, motivations and aptitudes that are not
dissimilar from those the rest of us grew up with,
and, consequently, may do as well in school as Whites
from similar backgrounds."
15.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
B . Neither the Equal Protection Clause of the
Fourteenth Amendment Nor the Privileges and
Immunities Clause of the California Constitution
Denies University Officials Discretion to Give
Special Consideration to a Reasonable Number of
Qualified Minority Applicants, When Such Con
sideration is Given for the Purposes of Promoting
Diversity in the School and the Profession and
Expanding Medical Education Opportunities for
Disadvantaged Members of Minority Groups_________
1. The Special Admissions Program Is Not Per Se
Unconstitutional, But Is Consistent With The
Purposes of The Equal Protection Clause_____
The lower court's announcement of intended decision
stated in sweeping terms the reasons for its finding that
the special admissions program denied equal protection of
_7/
the law:
"This Court cannot conclude that there is
any compelling or even legitimate public
purpose to be served in granting preference
to minority students in admissions to the
medical school when to do so denies white
persons an equal opportunity for admittance."
(CT 307:10-14)
7/ The trial court also found that the special admissions
program violated the Privileges and Immunities Clause of
the California Constitution (Article I, Section 21). How
ever, since the apposite California cases rely primarily
on Federal law and are consistent with the University's
discussion of Federal law, no separate discussion of
Article I, Section 21, is included herein. See, e.g.,
People, ex. rel. Lynch v. San Diego Unified School
District (1971) 19 C .A.3d 252; San Francisco Unified
School District v. Johnson (1971) 3~~cT. 3d 937, 95l7~
16.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
This too broad conclusion of the trial court that any racial
classification is unconstitutional per se, regardless of its
purpose or effect, simply cannot be squared with the Fourteenth
_ 8 /Amendment. It ignores the primary fact that the Fourteenth
Amendment arose out of an attempt to give Blacks special
_9 /
protection against discrimination.
As stated by the United States Supreme Court in
the Slaughter-House Cases (1872) 83 U.S. 395, 407, 21
L.Ed.59, 72:
". . . on the most casual examination of the
language of these amendments [13th, 14th,
and 15th] no one can fail to be impressed
with the one pervading purpose found
in them all, lying at the foundation of
each, and without which none of them would
have been even suggested; we mean the free
dom of the slave race, the security and
firm establishment of that freedom, and
8/ See Bickel, The Original Understanding and the
Segregation Decision', 69 Harvard L.Rev. 1, bO;
KurlandT~~EgaTitaria’nism and the Warren Court,
68 Mich, t."r^ 77~6?9T ~674.(T5TffyT~ ^ ^ 5i~r Y• ftesto O IXLx (J X1 • J~j • JAC: Vo ** s ̂* * ' — „ . - , » — —— •—
Virginia (18 79) 100 U.S. 303, 306-307 ; 25 L.Ed 664 ,
9/ The United States Supreme Court has expressly stated
that racial classificatons_are not unconstitutional
Hirabayashi v. United States (1943) 320 U.S3er se. ------ ---- - - TT . . .JIT Too, JTTTEd. 1774, 1786; ^ r ^ a ^ u j ^ J n ^
States (1944) , 323 U.S. 214, 216, 2137 59 L.Ed. 194,
199", 202 .
17 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
|
;
the protection of the newly made freemen [sic]
and citizen from the oppressions of those
who had formerly exercised unlimited
dominion over him. It is true that only
the 13th Amendment, in terms, mentions the
negro by speaking of his color and his
slavery. But it is just as true that each
of the other articles was addressed to the
grievances of that race, and designed to
remedy them as the fifteenth.
"We do not say that no one else but the
negro can share in this protection. Both
the language and spirit of these articles
are to have their fair and just weight in any
question of construction." (Underlining added.)
///
///
///
///
///
///
///
///
///
///
18.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The trial court's decision also ignores the develop
ment of the Equal Protection Clause. Although just as
predicted in Slaughter-House Cases special protection has
been extended to discrimination against groups other than
Blacks, it has been so extended only with respect to classifi
cations the design or purpose of which was discrimination
10/
against "discrete and insular minorities" analogous to
Blacks. See, e.g., Yick-Wo v. Hopkins (1885) 118 U.S. 356,
373-374, 30 L.Ed. 220, 223 [Chinese immigrants]; Graham v .
Richardson (1971) 403 U.S. 365, 372, 29 L.Ed. 2d 534,
541-542 [aliens].
The situation is quite different when a racial
classification, such as the special admissions program at
issue here, has the same purpose and effect as the Fourteenth
Amendment itself, that is, to assist minorities and society
in overcoming the effects of past discrimination. As stated
by the Court of Appeals in Norwalk Core v. Norwaljc_Redgvelo£-
ment Agency (2d Cir. 1968) 395 F.2d 920, 931-2:
" . . . classification by race . . . is
something which the Constitution usually
forbids, not because it is inevitably an
impermissible classification, but because
it is one which . . . has been drawn for
10/ United States v. Carolene Products Company (1938) 304 U.S
1447 152/n7"Tr^2-L.Ed. 1234 , 1242, n. 4.
///
19.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
the purpose of maintaining racial inequality.
Where it is drawn for the purpose of achieving
equality it will be allowed, and to the extent
it is necessary to avoid unequal treatment by
race, it will be required,"
In San Francisco Unified School Dist. v, Johnson
(1971) 3 Cal. 937, 950, 951, this Court observed:
"It would be ironic, indeed, if the Fourteenth
Amendment, adopted to secure equality of
citizenship for the Negro, prevented school
boards from providing equality of education
for the Negro.
* * *
". . . .We conclude that the racial classifi
cation involved in the effective integration of
public schools, does not deny, but secures, the
equal protection of the laws."
Therefore, a finding that a classification favors
a minority group only begins the analysis of an equal
protection question and does not end it.
///
///
///
2 0 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2. Racial Classifications Designed to Assist
Minorities Are Not Subject to the Same
Strict Scrutiny as Classifications
Directed Against Minorities________ ______
The general rule is that a classification will be sustained
against a claim of denial of equal protection if there is
any rational basis for it. See, e.g., Williamson v. Lee
Optical Company (1955) 348 U.S. 483, 99 L.Ed. 563. But the
courts have carved out a narrow exception to this rational
basis test for the protection of certain discrete and insular
minorities: When the classification is to the detriment of
such a minority it is called a "suspect" classification
requiring proof that the objective of the classification
serves a compelling state interest rather than merely any
rational state interest. See "Developments in the Law -
Equal Protection" (1969) 82 Harv. L.Rev. 1965; McLaughlin
v. Florida (1964) 379 U.S. 184, 13 L.Ed.2d 222; Loving v .
Virginia (1967) 388 U.S. 1, 18 L.Ed.2d 1010, 1020.
///
///
///
///
///
///
///
///
///
21.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
In extending the special "suspect classification"
protection to minority groups, the United States Supreme Court
carefully avoided a finding that advantaged Caucasians, like
Mr. Bakke, are entitled to this same special protection. The
Court has acted to strike down invidious discrimination, but
its decisions, considered in context, indicate that a racial
classification is invidious only to the extent it excludes,
disadvantages, isolates, or stigmatizes minorities or is
designed to segregate the races. See Brown v. Board of
Education (1954) 347 U.S. 483, 494, 98 L.Ed. 873, 880-81;
Loving v. Virginia (1967) 388 U.S. 1, 18 L.Ed. 2d 1010,
1020; McLaughlin v. Florida (1964) 379 U.S. 184, 13 L.Ed. 2d 222.
It is fanciful to argue that Mr. Bakke or other
non-minorities are stigmatized by feelings of inferiority
because of the special admissions program. And the purpose
of the special admissions program is to encourage integration
of the races in the medical school and in the profession.
(CT 67-69)
Other recent cases, without discussing distinctions
between the rational basis and compelling interest tests,
have assumed that affirmative attempts to equalize opportunity
for minorities are lawful and have made clear that the Equal
Protection Clause does not indiscriminately invalidate such
programs. In Swann v. Charlotte-Mecklenburg Boardof_Education-
(1971) 402 U.S. 1, 16, 28 L.Ed.2d 554, 566, the Court held
///
22.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
that school authorities may assign minority students to a
particular school so that the minority percentage of the
student body is the same as the minority percentage of the
whole population of the district and, in language especially
appropriate here, stated:
"School authorities are traditionally
charged with broad power to formulate
and implement educational policy and
might well conclude, for example, that
in order to prepare students to live in
a pluralistic society each school should
have a prescribed ratio of Negro to white
students reflecting the proportion for the
district as a whole. To do this as an
educational policy is within the broad
discretionary powers of school authorities ;
absent a finding of a constitutional
violation, however, that would not be
within the authority of a federal court."
(Underlining added.)
Similarly, in Porcelli v. Titus (3d Cir. 1970) 431
F.2d 1254, 1257, the Court held that a school board may give
preference to Black teachers over white teachers in order to
integrate the faculty and stated:
"State action based partly on considerations
of color, when color is not used per se,
23.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
and in furtherance of a proper governmental
objective, is not necessarily a violation
of the Fourteenth Amendment."
Cases such as Swann and Porcelli have established
that the Equal Protection Clause does not inflexibly require
that educators be blind to the special problems and needs of
minority groups. Other cases have gone even further and
held that where segregation results directly or indirectly
from past or present racially motivated public policies, the
Constitution requires favorable treatment of minorities.
For example, in Carter v. Gallagher (8th Cir. 1971) 452 F.2d
315, 331; cert, denied (1972) 406 U.S. 950, 32 L.Ed. 2d 338,
the Court stated:
"It would be in order for the District Court
to mandate that one out of every three
persons hired by the (Minneapolis] Fire
Department would be a minority individual
who qualifies until at least 20 minority
persons have been so hired."
See, also, People ex. rel. Lynch v. San Diego Unified School
District (1971) 19 C.A.3d 252, 261 and numerous cases therein
cited.
Thus, it appears clear that the compelling interest
exception to the normal rational basis test applies only to
discrimination against discrete and insular minorities.
But, in any event, the history and development of the
24.
1
2
3
4
5
6
7
8
9
10
11
12
1 3
14
15
16
17
18
19
20
21
22
23
24
25
26
Fourteenth Amendment has established that where, as here,
the purpose and effect of a racial classification is to
assist such discrete and insular minorities that there is a
sufficient state interest to pass muster under the Equal
n /
Protection Clause.
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
/// ___________________ _____ ___ ____________ ___________
11/ It has been suggested that the United States Supreme
™ Court may be moving away from a rigid two-tiered
approach to equal protection. See, e.g., Gunther
The Supreme Court, 1971 Term - Forward: .In Search
olH E v o T v T m r D o ^
For "a- Newer Equal >rotec€xon7 SlTTflFv. ETRevT"!
( 1'9'7'2T; gaF~MFonIo TnHep . School District v .
Rodriguez (1973) 411 U.S. 1, 98-110, 36 L.Ed.2d 16
(Justice Marshall dissenting) .
25.
1
2
3
4
5
6
7
8
9
10
11
12
1 3
14
15
16
17
18
19
20
21
22
23
24
25
26
3. The Efforts of the University to Assure That
Disadvantaged Members of Minority Groups Have
a Reasonable Representation in the Davis
Medical School and in the Medical Profession
Serve Rational and Compelling University Interests
The central fact which creates the need for the
special admissions program is that minority groups would
otherwise be grossly under-represented at the Davis Medical
School. Without the program there would be few, if any,
Blacks, Chicanos, or ative Americans at the School.
(CT 67:25-68:1) This is not a situation unique to the
Davis Medical School or to California. In 1970 only 2% of
American physicians were Black, 3.7% spoke Spanish or had
11/Spanish surnames, and .045% were Native Americans.
This gross under-representation of minorities
results in large measure, of course, from the effects of
past societal discrimination; and, although the University
of California has never had a policy of racial discrimination,
it is well recognized that such discrimination is part of
our nation's heritage, an "evil . . . which in varying
degrees manifests itself in every part of the country."
///
///
///
///
/ / / __________________ _____________________ _________________
12/ 1970 Census of Population: Occupational Characteristics -
U.S., Subject Report PC (2) , Table 2.
26.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Oregon v. Mitchell (1970) 400 U.S. 112, 284, 27 L.Ed.2d
272, 373, The special admissions program is simply an
effort by the Davis Medical School to use its resources
to combat this evil and to serve the interests of the profession
and society at large by providing reasonable medical education
opportunities for qualified disadvantaged members of minority
groups and by bringing the advantages of diversity to the
School and the profession.
The special admissions program contributes to
overcoming the evils of racial injustice by permitting dis
advantaged minority persons to enter medical school and
eventually practice medicine. With these persons as role
models, younger disadvantaged minority persons will realize
that it is possible to aspire to a medical career. The
program will contribute to breaking the cycle of hopelessness
in which families do not improve their economic status or
.13/
educational achievements over generations. {CT 68:17-24)
Adequate medical service to disadvantaged, often
minority group persons is one of the great medical needs of
our society. For example, in 1970 in the primarily minority
area of East Los Angeles, there was one physician, dentist,
or related professional for every 5,236 persons, and in Pico
Rivera there was one such professional for every 4,526 persons.
13/ See J. Nickel, Preferential Policies in Hiring and Admis-
sions: A Jurisprudential Approach, 75 Colum. L.Rev. 524,
541 (19751
27.
1
2
3
4
5
6
7
8
9
10
11
12
1 3
14
15
16
17
18
19
20
21
22
23
24
25
26
But in the affluent, primarily white communities of Beverly
Hills and Burlingame the ratio was one to 61 and one to 114,
11/respectively. The special admissions program is intended
to help correct this imbalance. Every applicant admitted to
the Davis Medical School under the special admissions program
has expressed an interest in serving a disadvantaged community.
(CT 68:14-16) See, also, Curtis, Blacks, Medical Schools,
and Society (1971) University of Michigan Press, 147.
Aside from putting more physicians where they are
most needed, the special admissions program will assist
treatment of the specific health problems of minorities. To
give just a few examples: Black physicians will have greater
rapport with Black patients and greater interest in treating
diseases which are especially prevalent among Blacks, such as
15,
sickle cell anemia, hypertension, and skin ailments. (CT 68:6-16)
The professors, students, and members of the
medical profession with whom the disadvantaged minority
student or doctor comes into contact will be influenced and
enriched by that contact. They will be exposed to the
ideas, needs, and concerns of disadvantaged minorities and
may themselves be enlisted in meeting the medical needs of
disadvantaged minority communities. (CT 62:22-28)
14/ 1970 Census of Population, General Social and Economic
Characteristics - California (PC(1) - C6), Tables 86 and
105.
15/ See E. Griswold, Some Observations on the DeFunis Case,
75 Colum. L.Rev. 512, 517.
28 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Another important justification for the special
admissions program is that quantifiable data, such as test
scores and grades, do not necessarily reflect the capabilities
of disadvantaged minority persons- They may reflect inadequate
prior schooling which the applicant is only gradually over
coming. Poor grades may reflect the need to work long hours
to support the applicant or his family. Disadvantaged
minority applicants often lack the reinforcement and support
that others derive from more stable families. (CT 68:30-
69:6) See, e.g., R. O'Neill, Preferential Admissions,
Equalizing the Access of Minority Groups to Higher Education
(1971) 80 Yale Law Journal 699, 735; Kendrick, "Minority
Students on Campus" in The Minority Student on the Campus:
Expectations and Possibilities (1970) 46-49.
In DeFunis v. Odegaard (1973) 82 Wn.2d 11, 507
P .2d 1169, vacated as moot (1974) 416 U.S. 312, 40 L.Ed.2d
164, the Supreme Court of Washington specifically found that
a minority admissions program at the University of Washington
Law School, very similar to the special admissions program
at issue here, served compelling interests:
"We believe the state has an overriding
interest in promoting integration in
public education. In light of the serious
under-representation of minority groups in the
law schools, and considering that minority
groups participate on an equal basis in the
29.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
tax support of the law school, we find the
state interest in eliminating racial
imbalance within public legal education
16/to be compelling." (507 P.2d at 1187 .)*
And as stated by Justice Douglas in his opinion dissenting
from the United States Supreme Court's finding of mootness in
DeFunis v. Odegaard;
"I cannot conclude that the admissions pro
cedure of the Law School of Washington that
excluded DeFunis is violative of the Equal
Protection Clause of the Fourteenth Amend
ment." (416 U.S. at 312, 40 L .Ed.2d at 185.)
///
///
/ / / ___________________________ ___________________ _
16/ In considering the case after vacation by the United States
Supreme Court, the Washington State Supreme Court enter
tained plaintiff's motion to convert the case to a class
action and a motion by the University of Washington to
reinstate the earlier decision of the State Supreme
Court.. The Court denied the motion to convert to a
class action. The University's motion to reinstate the
prior judgment would have been granted by the Court's
plurality opinion, but it appears that opinion was
concurred in by only four of the nine members of the
Court. (DeFunis v. Odegaard, 84 Wn.2d 617, 529 P.2d
438 (1974T"I ~But see PaciTTc 2d' s headnote, "The
Supreme Court . . . held . ... that the court would
reinstate its prior judgment." (529 P .2d at 438)
In any event, it is clear that on the constitutional
issue, six of the nine members of the Washington
Supreme Court have found the minority admissions program
to be valid.
30.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The only appellate court, other than the Supreme Court of
Washington, to reach the merits of the issue also has upheld
the validity of such admissions practices. Alevy v. Downstate
Medical Center (Sup. Ct., 1974) 78 Misc.2d 1091, 359 N.Y.S.2d
426, aff'd without opinion (2d Dep., 1975) 47 A.D.2d 715,
366 N .Y .S.2d 390. As stated by the New York Court in
upholding a preference admissions program for the benefit
of disadvantaged Blacks and Puerto Ricans:
"There is nothing in the record to indicate
that acceptance of minority students by
respondent was based solely on race. On the
contrary, the testimony adduced in behalf of
respondent is that a minority student whose
low grades could not be attributed to
financial and educational disadvantage would
///
///
///
///
///
///
///
///
///
///
31.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
not be given the consideration given to the
disadvantaged. Furthermore, with respect to
minority applicants, educational, cultural,
and economic background and probability of
success in the program were considered. The
court is of the opinion that there is no bar
to considering an individual's prior achieve
ments in the light of his disadvantages,
culturally, economically and educationally,
as a factor in attempting to assess his true
potential in a successful career. The court
is of the further opinion, as expressed at
times by others, that standards of admission
need not be based on predetermined robot like
mathematical formulae. On the contrary,
educators should be free to assess the cre
dentials and the persons presenting them upon
entrance outside of test scores and formula
ratings. (359 N.Y.S.2d at 429.)
The special admissions program is a reasonable
effort to meet rational and compelling interests. Applicants,
including all minorities, are admitted only if they are fully
qualified to successfully complete the course of study and
become competent physicians. (CT 67:9-13) The decision to
reserve 16 seats under the special admissions program was
made after deliberation by the faculty (CT 164:14-18), and is
32.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
far below the percentage of disadvantaged minorities in the
17/
California population. It is the judgment of the faculty
at the Davis Medical School that the special admissions
program is the only method whereby the School can produce a
diverse student body which will include qualified minority
students. (CT 67:14-18; CT 67:28-68:1)
The Fourteenth Amendment was passed to help insure
that all Americans stand equal before the law. Experience
has taught, however, that where the law is strictly neutral
racism and prejudice often hold sway. Statutes and court
decisions which ended segregation in public schools, and
which guaranteed voting rights, access to public accommo
dations, and housing all constituted steps whereby the power
of the state was used affirmatively to combat discrimination
and make the promise of the Fourteenth Amendment a reality.
Here, the University is merely using its lesser power in a
less dramatic way to achieve that same purpose in the Davis
Medical School and in the medical profession. If such
affirmative steps cannot be taken there will be few, if any,
members of certain minority groups who will become doctors.
This will be the loss of the School, the profession and
society.
I L L __________________-_________________________________ _________
17/ See 1970 Census of Population: Detailed Characteristics -
California (PC(1) - D6), Table 139. Approximately 7%
of the Californians are Black, and 16% Spanish speaking
or Spanish surnamed.
33.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
II. THE ADMISSIONS STANDARDS USED BY THE DAVIS MEDICAL
SCHOOL ARE PERMITTED BY TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964 ________________________
The trial court found that the special admissions
program at the Davis Medical School violates Title VI of the
Civil Rights Act of 1964 [42 U.S.C. § 2000(d)]. (CT 390:14-
20; 394:14-20) It states:
"No person in the United States shall, on
the ground of race, color, or national
origin, be excluded from participation in,
be denied the benefits of, or be subjected
to discrimination under any program or
activity receiving federal financial
assistance.11
Implementing regulations issued under 42 U.S.C § 2000(d) by
the Department of Health, Education and Welfare provide that
recipients of federal financial assistance, such as the
University of California,
" . . . may properly give special considera
tion to race, color or national origin
to make the benefits of its program
more widely available. . ." (38 Fed. Reg.
17979, July 9, 1973, 45 C.F.R. § 80.5 (j) .
Those regulations further provide:
"In administering a program regarding which
the recipient has previously discriminated
against persons on the ground of race, color
34.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
or national origin, the recipient must take
affirmative action to overcome the effects
of prior discrimination. Even in the absence
of such prior discrimination a recipient in
administering a program may take affirmative
action to overcome the effects and conditions
which resulted in limiting participation by
persons of a particular race, color or
national origin. 38 Fed. Reg. 17979,
July 5, 1973 , 45 C.F.R. § 80.3(b) (vii) (6) ;
made applicable to admissions at 45 C.F.R.
§ 80.4(d)(1) and (2) and at 45 C.F.R. § 80.5(e).
In Lau v. Nichols (1974) 414 U.S. 563, 39 L.Ed.2d 1,
the United States Supreme Court upheld similar provisions of
these same regulations and required the City of San Frncisco
to give special bilingual education to students of Chinese
ancestry who do not speak English.
In light of the foregoing, it is apparent that the
special admissions program clearly does not violate Title VI
of the Civil Rights Act of 1964 and, indeed, the regulations
issued under that Act specifically permit giving special
consideration to minority group members in admissions for
the purpose of increasing their participation in educational
programs.
///
35.
1
2
3
4
5
6
7
8
9
10
11
12
1 3
14
15
16
17
18
19
20
21
22
23
24
25
26
III. THE TRIAL COURT CORRECTLY FOUND THAT BAKKE WOULD NOT
HAVE BEEN ADMITTED EVEN IF THERE HAD BEEN NO SPECIAL
ADMISSIONS PROGRAM_________ ________________ __
The trial court carefully reviewed the evidence on
whether Bakke would have been admitted had there been no
special admissions program and found
" . . . that even if 16 positions had not
been reserved for minority students in
each of the two years in question, plaintiff
still would not have been admitted in
either year. Had the evidence shown that
plaintiff would have been admitted if the
16 positions had not been reserved, the
Court would have ordered him admitted."
(CT 383:20-26)
Bakke's applications for admission to classes
beginning 1973 and 1974 were processed and evaluated in the
same way as those of every other applicant seeking admission
through the regular admissions program. (CT 69:11-13) It is
unfortunate that the competition for the few available
spaces in each year's class is so intense that applicants
with credentials such as Bakke's must be turned away. However,
the competitive situation is by no means limited to the Davis
Medical School; although Plaintiff applied to 10 medical
schools for 1973 and two other medical schools for 1972 he
was admitted nowhere. (CT 48:25-49:14; 51:14-19)
36.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
For the class beginning in 1973, Bakke's file was
not received and processed at the Davis Medical School in
the normal course until after the March 14, 1973 mailing of
acceptances, at which time 123 of the 160 acceptances,
including 24 of the 32 acceptances under the special admissions
program, had already been mailed. (CT 69:18-23) Bakke's
combined numerical rating of 468 was two points lower than
any applicant accepted under the regular admissions program
after his evaluation was completed. (CT 69:23-26)
At that time only four of the sixteen spaces
reserved under the special admissions program remained
unfilled. (CT 70:2-3) If we assume that the four spaces
reserved under the special admissions program had been open
to regular applicants, Bakke would not have been among those
accepted. There were 15 interviewees with scores of 469 and
20 interviewees with scores of 468 who had not been accepted
at the time Bakke's evaluation was complete and who would
have been selected ahead of Bakke. (CT 70:4-30)
Even if we assume that all 16 of the spaces
reserved under the special admissions program had been open
at the time Bakke's application was complete, he still would
not have been among the 16 selected. There were 15
unaccepted interviewees with scores of 469, and 20 with
scores of 468. Bakke was not among the 20 interviewees with
scores of 468 likely to have been selected, even assuming
the selection process had gotten down that far, because he
37 .
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
was not an applicant with a score of 468 ultimately selected
18/
for the Alternates List. (CT 70:21-30)
For the class entering in 1974, Bakke made early
application and, at his request, was interviewed on
August 30, 1973, even before his file was complete.
(CT 70:31-71:1) After his file was completed it was
evaluated in the normal course and Bakke received a ranking
of 549 on a scale of zero to six hundred. (CT 71:3) That
ranking does not come close to admission. Even assuming no
special admission programs and 16 open positions, there were 12
applicants, not on the Alternates List, who had ratings
above 549 (and three with ratings of 549) who had not, as
of July 5, 1974, been admitted to Davis or any other school.
And, as of July 5, 1974, there were 20 applicants on the
Alternates List with ratings above 549 who had not been
accepted to any other school. (CT 71:4-10) Therefore,
Bakke was at least 32 places from admission and was not put
on the Alternates List.
U l _______________ -------------------------------- ----- ------— —
18/ After the class has been filled there is some attrition
and applicants whose scores were close to admission
are reconsidered by the Dean of Admissions and an
Alternates List is made up. The names are not placed
on the Alternates List according to strict numerical
rankings as the Dean of Admissions is given discretion
to select for the Alternates List applicants whose
ratings were very close to admission and who will bring
special skills or balance to the class as it has
developed through the regular admissions process.
Additionally, some numerical ratings may no longer be
valid because new information has been received since
the combined numerical rating was made. (CT 64:13-24)
38.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
CONCLUSION
The selection of students to be admitted from
among the large number of qualified applicants to the Davis
School of Medicine is and properly must be determined by educa
tional decisions. For the University of California, Article IX,
Section 9, of the California Constitution clearly entrusts
such decisions to the Board of Regents and those exercising
authority delegated by The Regents -- in this case, the
admissions officials of the Davis Medical School. Nowhere
is the principle of institutional self-governance more
important that in the difficult and sensitive area of admissions
to the University's professional schools. University officials
must be given broad discretion to exercise the delicate
judgment as to which of many qualified applicants are best
suited to make up the entering class of the Davis Medical
School.
The University does not contend that the
admissions policy should be the same in every professional
school or that such policies should necessarily remain the
same from year to year. On the contrary, admissions policies
must be shaped to meet the needs of the particular school
and profession in the light of current experience. As
expressed in the Brief of the President and Fellows of Harvard
College, Amicus Curiae, in support of the University of
Washington before the United States Supreme Court in
DeFunis v. Odegaard:
39.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
"We do not advocate any one view [of
admissions policies'. No one view is
uniformly pursued at Harvard University.
The important point is that the debate
and experimentation be allowed to proceed
at all institutions of higher education,
whether state or privately endowed, rather
than shut off by a novel constitutional
limitation on the discretion of educational
authorities." (Page 52)
We are painfully aware that minorities, and especially
Blacks, Chicanos and Native Americans, have been grossly
under-represented in our nation's professional schools,
particularly schools of law and medicine. This has been
changing rapidly in recent years with the advent and spread
of special admissions programs for minorities. It is particularly
unfortunate that these programs must be implemented at a
time when applications for professional schools are soaring,
which means diminishing educational opportunities for all
applicants — • white and minority. But this intensified
interest in professional education makes special admissions
programs for minorities all the more necessary because
experience indicates that in this extremely competitive situation
very few members of the most disadvantaged minority groups
would be admitted through the neutral application of traditional
admissions criteria.
40.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The special admissions program at the Davis Medical
School has been found to be essential in order to provide a
reasonable representation of members of disadvantaged minority
groups and to avoid de facto segregation in the medical
school. Such an admissions policy is well within the limits
of the University's discretion and is fully consistent with
the Fourteenth Amendment to the United States Constitution,
the Privileges and Immunities Clause of the California
Constitution, and Title VI of the Civil Rights Act of 1964.
The decision of the Superior Court declining to
order Bakke's admission should be affirmed. That portion of
the decision of the Superior Court declaring the special
admissions program of the Davis Medical School to be invalid
should be reversed with instructions to enter declaratory
judgment upholding the special admissions program as prayed
for in the University's Cross-Complaint for Declaratory
Relief.
DATED at Berkeley, California, this 29th day of
July 1975.
DONALD L. REIDHAAR
JOHN F. LUNDBERG
GARY MORRISON
By
Attorneys for Appellant and
Cross-Respondent
41.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
DECLARATION OF SERVICE BY MAIL (CODE CIV. PROC. §§ 1013a & 2015.5)
I, the undersigned, say: I am a citizen of the United
States, over 18 years of age, employed in Alameda County,
California, in which county the within-mentioned mailing occurred,
and not a party to the subject cause. My business address is
590 University Hall, 2200 University Avenue, Berkeley, California
94720. I served the attached OPENING BRIEF OF APPELLANT AND
CROSS-RESPONDENT by placing a copy thereof in a separate envelope
for each such addressee respectively as follows:
Hon. F. Leslie Manker
Judge of the Superior Court
c/o Laurence P. Henigan, Clerk
Yolo County Superior Court
P.O. Box 1098
Woodland, California 95695
Reynold H. Colvin, Esq.
Jacobs, Blanckenburg, May & Colvin
Suite 1800
111 Sutter Street
San Francisco, California 94104
Each envelope was then sealed and with the postage
thereon fully prepaid deposited in the United States mail by
me at Berkeley, California, on July 29, 1975.
There is delivery service by U.S. mail at each place
so addressed or regular communication by U.S. mail between the
place of mailing and each place so addressed.
I declare under penalty of perjury that the foregoing
is true and correct.
Executed on July 29