Bakke v. Regents Brief of the State of Washington and the University of Washington as Amicus Curiae

    mmes M. NASR/T III
ASSOCIATE-COUNSEL

IN THE
Supreme Court of the United States

October Term, 1976

No. 76-811

The Regents of the University of California, 
Petitioner, 

v.
Allan Bakke,
Respondent

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF CALIFORNIA

BRIEF OF
THE STATE OF WASHINGTON 

AND
THE UNIVERSITY OF WASHINGTON 

AS AMICUS CURIAE

SLADE GORTON
Attorney General 
State of Washington
By: James B, Wilson 

Senior Assistant 
Attorney General 

State of Washington
Attorneys for Amicus Curiae 
112 Administration Building 
University of Washington 
Seattle, Washington

UNIVERSITY O F WASHINGTON, D EPA RTM EN T OF PRINTING



TABLE OF CONTENTS
Page

INTEREST OF AMICUS CURIAE .................................. 1

QUESTIONS PRESENTED ................................................. 6

SUMMARY OF A R G U M EN T .............................................. 8

A R G U M E N T ..................   9

I. Introduction..................................................................   9
II. The Fourteenth Amendment does not prohibit 

a state institution of higher education from 
considering the race of under-represented minority 
applicants where the purpose and effect is to 
increase their number in its education programs . . 8, 11

A. Where the purpose and effect of the racial
classification is not to discriminate against 
persons on the basis of their race, the classifi­
cations will be sustained if they are rationally 
related to a legitimate state purpose.................. 13

B. The California Supreme Court erred when it 
purported to subject the medical school’s 
admissions policies to “close judicial scrutiny.” . 21

C. The California court erred in requiring a show­
ing of past discrimination as necessary to 
justify a voluntary preferential program 
designed to remedy the effects of historical 
discrimination.......................................................... 25

III. Affirmance of the Court below would deny state 
educational authorities the discretion they require 
to formulate and implement education programs
designed to benefit all of their students........................ 26

CONCLUSION......................................................................  27

i



TABLE OF AUTHORITIES

Cases
Bakke v. Board of Regents, 18 C.3rd 34, 132 C.R.680,

553 P.2d 1152 (1976).............................................. 6, 13, 20, 24

Brown v. Board of Education, 347 U.S. 485 (1954) . . .  12 

Civil Rights Cases, The, 109 U.S. 3 (1883).....................  11, 12

DeFunis v. Odegaard, 82 Wn.2d 11, 507 P.2d 1169,
84 Wn.2d 617, 529 P.2d 438 (1974),
416 U.S. 3 1 2 .....................................2, 4, 6, 9,10, 13, 17,18, 22

Franks v. Bowman Transportation Co., 424 U.S. 747,
96 S.Ct. 1251 (1976).................................................... ... 15, 19

German v. Kipp,______F.Supp--------- , U.S.D.C. W.Mo.
(April 7, 1977)......................................................................  25

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..................  17

Hirabayashi v. United States, 320 U.S. 80 (1943)...............  22

Kahn v. Shevin, 416 U.S. 461 (1974)............................... 23, 24

Korematsu v. United States, 304 U.S. 1 4 4 ........................... 22

Lindsay v. Seattle, 86 Wn,2d 698, 548 P.2d 320 
(April 1976)............................................................................  4

Morton v. Mancari, 417 U.S. 535 (1974)............................... 24
Plessy v. Ferguson, 163 U.S. 537 ..............................  11, 12, 13

Rodriguez v. San Antonio School District,
411 U.S. 1 (1972)................................................................  19

State Employees v. Higher Education Personnel Board,
87 Wn.2d 823, 557 P.2d 302 (Dec. 16, 1976).....................  4

Swann v. Charlotte-Mecklenburg Board of Education,
401 U.S. 1 ................................................................... 15, 16, 26

Strauder v. West Virginia, 100 U.S. 303 (1880)..................  11

United Jewish Organization v. Carey,--------U.S. -------- ,
97 S.Ct. 996 (1977).................................................... 14,15,16

United States v. Carolene Products Co., 304 U.S. 144 . . . .  22

United States v. Montgomery Board of Education
395 U.S. 225 (1 9 6 9 )................................................................  15

ii



Washington v. Davis, U.S. 229 (1976).................................... 15

Constitutional Provisions 

United States Constitution

Fifth Am endm ent................................................................  6
Fourteenth Amendment............ .. .......................................  8

Fifteenth Am endm ent......................................................... .1 6

Statutes
Title VII, Civil Rights Act of 1974 ........................................ 4

Other Authorities
DeFunis v. Odegaard and the University of 
Washington: University Admissions Case,
The Record (Oceana Press, 1974)
Ann Fagan Ginger, E d....................................................... • • 9

Odegaard, Minorities in Medicine, Josiah
Macy, Jr., Foundation (1977)................................................. 18

iii



IN THE
Supreme Court of the United States

October Term, 1976

No. 76-811

The Regents of the University of California, 
Petitioner, 

v.
Al l a n  B a k k e ,
Respondent

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF CALIFORNIA

BRIEF OF
THE STATE OF WASHINGTON 

AND
THE UNIVERSITY OF WASHINGTON 

AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The State of Washington, and its University ofWashington, as 
amicus curiae seek to preserve the right of the University to 
serve the interests of all of its students in education for life and 
careers in a pluralistic, multi-racial society; to alleviate gross 
under-representation of minority races in professions for which 
the University provides education; to contribute to overcoming 
pervasive and invidious racial discrimination which, but for



2

preferential admissions programs, could make the University 
and its schools and departments segregated, tax-supported 
purveyors of education for the white majority race, in fact if 
not in law.

The State of Washington operates a system of higher educa­
tion which includes two state universities, four statewide col­
leges and some 28 community colleges. Its largest university is 
the University of Washington, founded in 1861. The University 
is governed by a Board of Regents of seven members appointed 
by the Governor and confirmed by the state Senate. The Uni­
versity has more than 35,000 students, nearly a fourth of them 
enrolled in graduate or professional programs. Included are 
programs leading to professional degrees in law, medicine, 
dentistry, nursing, public affairs and social work, and graduate 
programs leading to the Ph.D. degree in most of the academic 
disciplines.

While the Board of Regents has the responsibility for admis­
sions policies for its schools and departments, implementation 
of policy decisions is delegated to the deans and faculty of the 
various schools and colleges. The Board has directed the grad­
uate and professional schools to “continue to recognize the 
need for greater representation of minority groups which are 
under-represented in their professions and/or academic ranks 
by developing, enunciating and implementing admissions poli­
cies which are consistent with the fulfilment of this need.”1

Each of the schools and colleges has its own admissions pro­
gram. Each seeks to increase the numbers of qualified but un-

1. Resolution of the Board of Regents adopted June 13, 1975, appended 
as Appendix A to this amicus brief.



3

der-represented minorities among its students and in the pro­
fession it serves. None of the admissions programs sets aside a 
fixed number of seats for qualified minority applicants, as the 
University of California-Davis medical school does, but all of 
them consider favorably the minority race of applicants when 
determining who, among more qualified applicants than can 
be admitted, shall be admitted to the limited number of places 
available.

The University of Washington law school’s program was the 
first such program challenged by a disappointed applicant who 
contended that he had been unconstitutionally discriminated 
against on the basis of his Caucasian race. Marco DeFunis, Jr. 
was that plaintiff. He persuaded the trial court that he had 
been discriminated against because the Constitution is “color 
blind,” but the Supreme Court of the State of Washington re­
versed, stating in part:

“The state has an overriding interest in promoting integra­
tion in public education. In light of the serious under-repre­
sentation of minority groups in the law schools, and con­
sidering that minority groups participate on an equal basis in 
tax support of the law school, we find the state interest in 
eliminating racial imbalance within public legal education 
to be compelling.”2

The court further held that:

“The consideration of race in the law school’s admissions 
policy meets the test of necessity here because racial imbal­
ance in the law school and the legal profession is the evil to 
be corrected, and it can only be corrected by providing legal 
education to those minority groups which have been pre­
viously deprived.”3

2. DeFunis v. Odegaard, 82 Wn.2d at 33, 507 P.2d 1169 (1973).
3. Id., at 35.



4

This Court granted certiorari and heard arguments, but de­
cided that the case was moot because of the impending gradu­
ation of the plaintiff.4 This Court vacated the judgment and 
remanded the case to the state court for such action “as it may 
deem appropriate.” On remand, four of the Washington Justices 
would have reinstated the previous judgment of the State Su­
preme Court, three Justices declined to vote for reinstatement 
for varying reasons, none of which involved the merits of the 
previous decision of the court, and the two original dissenters 
remained in dissent.5 The Supreme Court of the State of Wash­
ington has only recently reaffirmed its position taken in its 
original DeFunis decision in a unanimous decision in State 
Employees v. Higher Education Personnel Board.6 Further­
more, it has cited its original DeFunis decision to support its 
conclusion that selective certification (preferential treatment 
for under-represented minorities in hiring) was necessary in 
order for the city of Seattle to comply with Title VII of the 
Civil Rights Act of 1964 and achieve “a fair approximation of 
minority representation in city employment.”7

The University of Washington’s medical school also seeks to 
increase the number of certain minorities within its classes. 
They have chosen a different approach from the law school 
(and the University of California-Davis) because their admis­
sions program generally has different goals. Seriously con­
sidered candidates for the limited places available are with 
certain exceptions limited to residents of Washington, Alaska, 
Montana and Idaho. Fixed numbers of seats are set aside for 
residents of Idaho, Alaska and Montana in accordance with

4. Defunis v. Odegaard, 416 U.S. 312.
5. DeFunis v. Odegaard, 84 Wn.2d 617, 529 P.2d 438 (1974).
6. 87 Wn.2d 823, 557 ?  .2d 302 (Dec. 16, 1976).
7. Lindsay v. Seattle, 86 Wn.2d 698, 548 P.2d 320 (April 1976).



5

agreements between those states and the State of Washing­
ton in recognition of the inability of those states to provide 
medical education at their own universities because of limited 
resources. In order to assure that Blacks, Chicanos and Ameri­
can Indians are represented within the student body, their 
applications are seriously considered regardless of place of 
residence. In the view of the medical school admissions author­
ities this gives the school the best chance of having qualified 
minorities within the class ranks and ultimately within the 
profession.

Other graduate and professional schools at the University of 
Washington approach the need in ways that best serve their 
overall educational needs and public purposes. But all of them 
approach it, and seek solutions within their admissions policies 
and in accordance with the regents’ mandate.

Other state and local agencies of Washington have been vig­
orous in taking and supporting affirmative action to correct the 
effects of past racial discrimination in both employment and 
education. Most of these steps have not been taken because of 
court orders or compulsion by federal agencies in order to 
comply with federal civil rights laws or executive orders. They 
have been undertaken voluntarily by the agencies to meet the 
perceived and acknowledged need to correct the effects of 
slavery, segregation and discrimination against certain insular 
minorities within our society who by the very fact of past ra­
cially-biased, legally-sanctioned discrimination would still be 
denied equal opportunity to the educational and employment 
opportunities available in the state of Washington without such 
programs.



6

If this Court were to affirm the decision of the Supreme 
Court of California in Bakke v. Board of Regents,8 the programs 
that the Washington Supreme Court has found necessary to fur­
ther the compelling interests of the state could be destroyed or 
crippled. For that reason, the State of Washington as amicus 
curiae urges the reversal of the decision of the Supreme Court 
of California.

QUESTION PRESENTED
While the question presented could be stated in the nar­

rowest form, because of the broad sweep of the lower court’s 
decision we believe, for the purposes of this brief, it must be 
stated as follows:

Does the United States Constitution preclude a state-sup­
ported university from considering minority race as an affirma­
tive factor in its selection from among qualified applications for 
admission to a limited number of places within its student 
body?

A bewildering array of subsidiary questions might be stated, 
primarily because through history, prior to DeFunis v. Ode- 
gaard, from the creation of the Freedman’s Bureau after the 
Civil War to the most recent implementation of affirmative ac­
tion programs by the United States government, discrimination 
by any minority race against the majority race has been (as we 
think it largely remains) a non-problem. Some of those ques­
tions:

1. Does the same strict scrutiny standard apply when the 
purpose and effect of the allegedly discriminatory program are

8. 18 C 3rd 34, 132 C a  R 680, 553 P.2d 1152 (i976).



7

to benefit a minority, as in a program where the motive is neut­
ral or malign?

2. If a compelling state interest is required, either absolute or 
on a relative scale, what weights are to be attached to factors 
such as the following:

a. Gross under-representation of minority race in the profes­
sion for which a school educates.

b. Former participation by the institution challenged in in­
vidious discrimination for which the program is remedial and 
compensatory.

c. Absence of workable surrogate qualifications like “cultur­
ally deprived,” “impoverished,” “educationally handicapped,” 
or “disadvantaged” to identify members of minority races 
without saying so, or in a “racially neutral” way.

d. The educational judgment of the faculties and administra­
tors that the ends of education for all students are importantly 
served by a student body which is not monolithic in racial 
composition.

3. Must there be a showing of past discrimination by an 
agency in order to justify its ameliorative program?

4. Is a fixed number (or fixed percentage) of minority admit- 
tees in the University of California-Davis program, which dif­
ferentiates it from the greater flexibility of other programs, a 
negative or a positive factor? In determining this, what 
weight should be given to invidiousness of discrimination, the 
compelling quality of the state interest, and scrutiny of race as 
a suspect category?



8

We assume that the Court granted its Writ of Certiorari be­
cause it believed that the time might be ripe to answer the 
fundamental question. If it finds that the record and the briefs 
are not adequate to justify a decision which would answer 
our question in the negative, then we urge disposition on the 
narrowest grounds possible.

SUMMARY OF ARGUMENT
Is “reverse discrimination” a term which belongs in the lex­

icon of Fourteenth Amendment law? This Court has recog­
nized the validity of race conscious policies and programs to 
correct the effects of past racial discrimination.

Voluntary programs by state universities designed to in­
crease minorities in educational programs in which they have 
been grossly under-represented are critical to the nation’s effort 
to erase the effects of historical racial discrimination, segrega­
tion and slavery. The authority of state institutions to under­
take such programs is critical to their ability to design educa­
tional programs which they deem to be in the best interest of 
their students.

To affirm the lower court’s decision would either eliminate 
altogether efforts by state institutions to integrate their profes­
sional and graduate schools, opening access to the professions 
and academic ranks to minorities long excluded, or at best 
would require those institutions to retreat into obfuscation by 
camouflaging legitimate programs designed to achieve legiti­
mate goals by manipulating labels to fit within a judicially - 
imposed iron rule of law.

Such a consequence would deny institutions of higher edu­
cation the opportunity to test and experiment in areas where 
their expertise prevails.



9

The validity of programs such as that challenged here under 
the Fourteenth Amendment need not be measured against the 
strict scrutiny test which was designed to protect discrete and 
insular minorities from restrictions imposed by the majority on 
their constitutionally-protected rights. Nor should such volun­
tary programs be limited to institutions which have a history of 
racial discrimination and segregation.

The State of Washington is especially interested in the out­
come of this case because its highest court has upheld volun­
tary programs undertaken by its institutions of higher learning 
necessary to fulfill the compelling interest of the state. An af­
firmance by this Court of the California Supreme Court would 
seriously jeopardize, if not eliminate, those programs.

ARGUMENT
I

INTRODUCTION

Many of the arguments on the issues presented in this case 
were thoroughly briefed, not only by the parties in the De- 
Funis v. Odegaard litigation before this Court, but by many 
amici curiae. It is not our purpose to repeat those arguments in 
this brief. They all have been published in a three-volume 
work, DeFunis v. Odegaard and the University of Washington: 
University Admissions Case, The Record (Oceana Press 1974), 
Ann Fagan Ginger, ed.9

The facts of this case differ from those presented to this court 
in DeFunis v. Odegaard in that here the medical school set

9. When reference is made to the briefs submitted in the DeFunis litiga­
tion, reference will be made to the Ginger publication.



10
aside a fixed number of seats for “disadvantaged” minority per­
sons whose admission applications were to be examined by a 
separate admissions committee of the school. If the seats so set 
aside could not be filled by qualified disadvantaged applicants, 
those not filled would be available for applicants in the regular 
pool. In fact, at least in the years in question (1973 and 1974), 
all the seats made available for the special program were filled 
by minority applicants.

In the DeFunis case, no fixed number of seats were set aside 
by the law school for minority applicants. A separate subcom­
mittee of the law school’s admission committee examined the 
applications of those identified as minorities and made its rec­
ommendations to the admissions committee. The law school 
was not necessarily seeking disadvantaged minorities. It was 
seeking a sufficient number of qualified minorities to assure 
their reasonable representation in the law school and the legal 
profession. The law school concluded that without special 
consideration that goal could not be achieved. Though it was 
argued by some of the amici in support of Mr. DeFunis that the 
law school program amounted to a “quota system,” there was 
no fixed number of seats assigned for minorities and the pro­
gram was concededly designed to increase the number of mi­
norities, not to limit them.10

While the court below did not ground its decision solely on 
the fact that the medical school set aside a fixed number of 
seats for its special admissions program, it stated that “it is diffi­
cult to avoid considering the University scheme as a form of an 
educational quota system,” which it condemned as “thor­
oughly discredited.”11

10. II Ginger 564, n .ll.
11. Pet. for Cert. 36a.



11

It is not our purpose to defend a strict quota system as a jus­
tifiable means of achieving the legitimate, if not compelled, 
purpose of racial integration in the educational programs of­
fered by our states’ colleges and univerities. We are here be­
cause if there is affirmance at all by this Court it would seri­
ously jeopardize programs which the Supreme Court of Wash­
ington has found necessary to fulfill that state’s compelling in­
terest after the closest judicial scrutiny. If this Court believes 
that the “quota” defined by the California court disqualifies the 
University of California-Davis admissions policy, we believe 
the Court should limit its holding to that conclusion.

II.
THE FOURTEENTH AMENDMENT DOES NOT 
PROHIBIT A STATE INSTITUTION OF HIGHER 
EDUCATION FROM CONSIDERING THE RACE OF 
UNDER-REPRESENTED MINORITY APPLICANTS 
WHERE THE PURPOSE AND EFFECT IS TO 
INCREASE THEIR NUMBER IN ITS EDUCATION 
PROGRAMS

The history of the Fourteenth Amendment, as this Court 
well knows, has been a contorted one. In 1880 this Court said 
that the Fourteenth Amendment should be construed liberally 
to carry out the purposes of its framers.12 Yet three short years 
later, in The Civil Rights Cases,13 it narrowly construed the 
powers of Congress under Section 5 of the Amendment as 
merely “counteracting the effect of state law, or state action, 
prohibited by the Fourteenth Amendment.”14 Then in 1896 the 
Court, in Plessy v. Ferguson,15 pronounced what the first Mr.

12. Strauder v. West Virginia, 100 U.S. 303 (1880).
13. 109 U.S. 3 (1883).
14. 109 U.S. 3 at 24.
15. 163 U.S. 537.



12

Justice Harlan in dissent declared as the “pernicious” doctrine 
of permitting states to enact statutes separating their citizens 
on the basis of race in public facilities so long as the facilities 
that were separate were nominally “equal.” These decisions 
gave constitutional sanction to Jim Crow laws which pers­
isted in large parts of this country until this Court, in 1954, 
ruled that segregation of itself violates the Fourteenth Amend­
ment’s equal protection clause.16 That case, as many subse­
quent rulings of this Court affirmed, rejected legally-sanctioned 
segregation, but it could not erase the effects of generations of 
segregation preceded by centuries of slavery based on race. It 
did not end segregated education.

Brown v. Board of Education in 1954 was a group of cases 
consolidated for hearing in which all the plaintiffs were black. 
The beneficiaries of that decision, however, were all people of 
the entire nation. Nevertheless, the first and immediate palp­
able wrong treated in the decision was that suffered by the 
black plaintiffs. That decision has not been fully implemented 
after more than a score of years. It would be a wrong sur­
passing Plessy v. Ferguson or the Civil Rights Cases to hold, 
when the children of those original plaintiffs are now reaching 
an age to seek admission to a professional school, that they are 
barred by fiercest competition, that the first Justice Harlan’s 
inspired metaphor that the Constitution is “color blind” has 
been metamorphosed into jurisprudence which denies a state 
every effective means of even mitigating conditions under 
which a black law student or a black medical student may be 
too rare even to be considered a “token.”

To have held that the Fourteenth Amendment (or its compo­
nent in the Fifth Amendment) outlawed the Freedmen’s Bu-

16. Brown v. Board of Education, 347 U.S. 485 (1954).



13

reau, all federal aid to Howard University, and all federal ef­
forts to curb the Ku Klux Klan, would be no more bitterly 
ironic than affirmance, without qualification, of the Bakke de­
cision. Under Ptessy v. Ferguson, establishment of a “separate 
but equal” school or university was at least an alternative. 
Responses to the problem of minority exclusion have varied 
greatly, even within the schools and departments of a single 
university. There is no prescription for an ideal solution, but it 
is clear there can be no solution if all avenues of experiment are 
foreclosed.

We would not only freely concede, we would assert, that 
the problem manifest in Bakke and DeFunis is temporary, that 
a time when race is irrelevant to admission to a university will 
come. Wisdom in the entire academic community is divided as 
to the best way to bring this about, but there has been no sub­
stantial division in the recognition that an all-white student 
body in a medical school, a law school or a graduate school of 
business cannot be accepted as a permanent norm. Affirmative 
measures, necessarily experimental, necessarily subject to care 
and scrutiny of professional educators, oriented to the educa­
tional needs of the institution and of the constituent profes­
sions, are imperative. We are confident that this Court will not 
hold that the Constitution prohibits all good faith attempts to 
find a solution.

A. Where the purpose and effect of the racial classification is 
not to discriminate against persons on the basis of their 
race, the classifications will be sustained if they are ra­
tionally related to a legitimate state purpose.

The Supreme Court of California has held in this case that 
the admissions policy at the University of California-Davis 
medical school discriminated against plaintiff because of his 
white race. There is nothing in this record that supports that



14

conclusion. The record shows that of the 100 seats open for 
medical school admission, 84 went to white applicants and 
only 16 went to minorities.17 There is nothing in the record 
that shows the purpose of the policy was to exclude white 
persons. On the contrary, the purpose was to include a reason­
able proportion of minorities who, without the admissions pol­
icy, could not be admitted.

In a university where resources are finite and limited, one 
additional black student means one fewer white student. 
Adding one chair to the 100 already in the classroom crowds 
100 occupants of chairs already there, not only for space but for 
the time and attention of the professor, for access to the re­
sources necessary for the students’ education. As intended pun­
ishment for 100 white students for the sins of their ancestors in 
tolerating slavery, this would be impermissible. If there were 
evidence in the record that such a purpose existed, the ultimate 
in scrutiny would be expected. No such issue exists in this case. 
The issue is whether, in the allocation of resources, the explicit 
purposes of offering remedial opportunity to a minority, im­
proving the educational experience of students whose school 
would otherwise be majority-segregated, and ameliorating the 
non-representation of minority races in the professions, the 
Constitution has been offended.

In United Jewish Organizations etc. v. Carey (UJO),18 it has 
been reiterated that a disproportionate effect, even on a mi­
nority within a minority, does not make a case of discrimina­
tion under the Fourteenth Amendment.

As stated by Justice Stewart in his concurring opinion:

17. Pet. for Cert. 2a.
18_____U.S_____ , 97 S.Ct. 996 (1977).



15

“Under the Fourteenth Amendment the question is whether 
the [reapportionment] plan represents purposeful discrimi­
nation against white voters. Washington v. Davis, 426 U.S. 
229 (1976).”19

That, indeed, is the question before this Court in this matter: 
Does the admissions plan at the University of California-Davis 
medical school purposefully discriminate against white appli­
cants?

The majority opinion of the court below recognizes that the 
major purpose of the program “was to promote diversity 
among the student body and the profession and to increase the 
numbers of doctors practicing in the minority community, 
where the need is great,”20 and was even willing to concede, 
arguendo, that the objectives served a compelling govern­
mental interest.21

Mr. Justice Brennan, in his concurring opinion in UJO, su­
pra, observed:

“I begin with the settled principle that not every remedial 
use of race is forbidden. For example, we have authorized 
and even required race conscious remedies in a variety of 
corrective settings. See, e.g., Swann v. Charlotte-Mecklen- 
burg Board of Education, 402 U.S. 1, 25; United States v. 
Montgomery Board of Education, 395 U.S. 225 (1969); 
Franks v. Bowman Transportation Co.”22

He concluded, in concurring that the reapportionment plan of 
New York should be upheld, that

“ ‘the invidious and pervasive’ evil of voting rights violations 
. . . and, the ‘specially informed legislative competence in

19. 97 S.Ct. at 1017.
20. Pet. for Cert. 10a.
21. Id., at 23a.
22. 97 S.Ct. at 1013.



16

this area, argue in support of the legitimacy of the federal 
decision to permit a broad range of race-conscious remedial 
techniques including, as here, outright assignment by race.” 
(Citations omitted)23

Just as the state legislature was considered especially com­
petent and informed to deal with “the invidious and pervasive 
evil of voting rights violations,” this Court has recognized the 
special competence of educational authorities to deal with the 
consequences of past racial discrimination to educational pro­
grams and opportunities.24

Mr. Justice White, in delivering the judgment of the Court in 
UJO, observed, in upholding the reapportionment plan:

“There is no doubt that in preparing the 1974 legislation, the 
state deliberately used race in a purposeful manner. But its 
plan represented no racial slur or stigma with respect to 
whites or any other race, and we discern no discrimination 
violative of the Fourteenth Amendment nor any abridge­
ment of the right to vote on account of race within the 
meaning of the Fifteenth Amendment.”25

Nothing in the decision of the court below or in the record 
before it suggests that Mr. Bakke or any other rejected appli­
cant to the medical school sustained a racial slur or stigma by 
reason of his or her rejection.

The California Supreme Court in this case said that the 
Court was not requiring the University of California-Davis 
medical school to rely solely on test scores and grade point av­
erages and other quantitative criteria to determine who should

23. Id., at 1015.
24. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 401 

U.S. 1.
25. Id., at 1009-10.



17

be admitted to its school,26 but because it insisted upon mea­
suring the program against the compelling interest test, it went 
on to examine whether other alternatives might be available 
which the Court judged were less obnoxious. It suggests “flex­
ible admissions standards,” “aggressive programs of recruit­
ment and remedial schooling for disadvantaged students of all 
races,” and increasing the number of seats in the state’s medical 
schools. None of the Court’s suggested alternatives addressed 
the purpose of the admissions program under attack and there­
fore were not alternatives at all! To utilize any of them for that 
purpose would be to accept the Court’s implicit invitation to 
engage in subterfuge, which we believe to be one of the more 
frightening implications of the opinion.

History makes very clear the dangers of administering pro­
grams with racial impacts in an invisible manner. The problem 
is so delicate that it needs to be handled in the open, where 
tactics can be seen and discussed, where consequences can be 
identified and appraised, and where policies can be articulated 
and clarified. The California court’s exercise in judicial legisla­
tion and administration illustrates why the compelling interest 
test should be confined to the situations explicitly set forth by 
this Court. To expand its application, as the California court 
has done here, dangerously extends the judicial role in the 
administration of programs which legislatures have wisely left 
to experts.

Professor Archibald Cox, in his amicus curiae brief on behalf 
of the President and Fellows of Harvard College in DeFunis v.

26. Pet. for Cert., p. 26a. Indeed, were the plaintiff here black and had 
the medical school relied solely on such criteria, a challenge to the process 
might well have been sustained as racially disciminatory. Cf. Griggs v. 
Duke Power Co., 401 U.S. 424 (1971).



18
Ode guard,21 explained why the DeFunis case was an issue 
vital to public and private education. He emphasized the dan­
gers of substituting an iron rule of law for the discretion of 
academic authority to make a conscious selection of qualified 
students from the greatest variety of cultural, social and eco­
nomic backgrounds in order to improve the educational experi­
ence of the whole student body.28

Within the universities can be found more awareness of the 
weakness of aptitude testing, more experimentation to produce 
not only more sensitive tests, but alternatives to all tests.29 We 
urge this Court to recognize that its alternatives do not include, 
in any meaningful sense, ordering professional schools to do 
what they are now doing, except to do it in some undefined 
way better. Unless the Court assumes only the narrowest of 
the issues raised by this case, the alternatives are these: (1) dis­
regard race as an explicit consideration in all admissions pro­
grams, (2) identify substitute criteria for race, such as “educa­
tional disadvantage” which six years ago were code words for 
“race” by those administrators who share a vague perception 
that the Constitution might be “color blind.”

The second alternative is not a true alternative. A school 
could, of course, put “race” among the miscellaneous and un­
specified judgmental factors included in personal interviews in 
order to achieve its legitimate goal of integration. But this is 
precisely what Justice Tobriner in his dissent below properly 
criticized as “a manipulation of labels, so that the perfectly

27. Vol. II, Ginger, p. 851.
28. Id., p. 873.
29. For an extensive study of what medical colleges throughout the 

country have done to increase minorities within the medical profession see 
Odegaard, Minorities in Medicine, Josiah Macy Jr. Foundation, April 
1977.



19

proper purposes of the program must be concealed by subter­
fuge.” Justice Tobriner did not concur “in this retreat into ob­
fuscating terminology,”30 nor do we.

But respondent contends, and the lower court agreed, that, 
notwithstanding the legitimacy of purpose of the special ad­
missions policy, he was discriminated against because without 
the policy he would have been admitted to one of the seats 
taken by a “less qualified” minority. In other words, while 
there may have been no invidiously discriminatory purpose, 
the alleged discriminatory effect of the program upon him dis­
qualifies it under the Fourteenth Amendment.

Respondent’s grievance is not unlike that of the white em­
ployees of Bowman Transportation Company in Franks v. 
Bowman Transportation Co.31 Those employees contended 
that relief under Title VII of the Civil Rights Act to certain 
minorities who had been discriminated against in violation of 
the Act would impermissibly harm innocent white employees. 
Yet this Court ordered that the victims of discrimination be 
awarded seniority status notwithstanding the adverse effect 
on other white employees:

“If relief under Title VII can be denied merely because the 
majority group of employees, who have not suffered discrim­
ination, will be unhappy about it, there will be little hope of 
correcting the wrongs to which the Act is directed [cita­
tions] ,”32

30. Pet. for Cert., p. 76a.
31. 424 U.S. 747, 96 S.Ct. 1251 (1976).
32. 96 S.Ct. at 1264. The difference between the respondent’s position 

and that of the white employees of Bowman Transportation Co. is that 
those employees’ property rights to a place on the seniority ladder were 
detrimentally affected. Respondent here has no property right or funda­
mental right which is affected by the challenged admissions policy. Cf. 
Rodriguez v. San Antonio School Dist., 411 U.S. 1 (1972).



20

Surely, if Congress, under Section 5 of the Fourteenth 
Amendment, may authorize relief to victims of discrimination 
even though that relief adversely affects others, a state must 
be permitted voluntarily to effect remedial programs designed 
to ameliorate the effects of past discrimination by assuring 
greater access to its programs for those groups which have 
been the victims of historical discrimination. This is a national 
policy objective which this Court has described as “of the 
highest priority.”33

No issue is presented in this case as to what any educational 
institution may be compelled to do to effectuate the purposes of 
the Fourteenth Amendment. The issue in this case is what 
educational institutions may be prohibted from doing in their 
efforts affirmatively to effectuate the purposes of the Amend­
ment. If the University of California, or any other state univer­
sity, errs in depriving sons and daughters of any majority, racial 
or otherwise, the primary source of correction is the voters and 
the legislature. If  this Court errs, and affirms the Bakke deci­
sion on any but the narrowest of grounds, it risks bringing to a 
halt all programs and policies which have been regarded as 
permissible since the beginning of reconstruction after the Civil 
War. That consequence would be more costly to the nation, 
and to the education of all citizens, than any error since 120 
years ago when this Court decided Dred Scott v. Sanford.

The question to be answered yes or no is whether universi­
ties and colleges are forbidden to take into account in any way 
the race of the students who apply for admission. We doubt 
that the California Supreme Court can have understood the 
case in that way, because the California Supreme Court be-

33. Id., 96 S.Ct. at 1271.



21

lieves there are ways to achieve the objectives of these pro­
grams that will work better. There may be better ways, but 
we shall never learn them if this Court puts a stop to the pro­
cess of learning by experience to achieve better the goals of 
education for all races, colors, creeds, and both sexes, which 
make up our states and nation.

B. The California Supreme Court erred when it purported to 
subject the medical school’s admissions policies to “close 
judicial scrutiny.”

The California court, in subjecting the medical school’s ad­
missions policy to the so-called “compelling interest” measure 
applicable to suspect classifications, stated:

“We cannot agree with the proposition that deprivation 
based upon race is subject to a less demanding standard of 
review under the Fourteenth Amendment if the race dis­
criminated against is the majority rather than the minority. 
We have found no case so holding, and we do not hesitate to 
reject the notion that racial discrimination may be more 
easily justified against one race rather than another, nor can 
we permit the validity of such discrimination to be deter­
mined by a mere census count of the races.”34

This statement of the court assumes a situation which was 
not before it. We would certainly agree that any charge of ra­
cial discrimination by a public educational institution should 
be taken seriously, fully and closely scrutinized to the extent 
necessary to provide assurance that it is not well founded. A 
statute or a practice prescribing the outcome of any competi­
tion based on the race of the competitor could not be constitu­
tionally justified. This would still be true even if the majority 
or minority status of a race were determined by census count.

The California court failed to cite any case which holds that

34. Pet. for Cert. 18a-19a.



22

a remedy such as that adopted by the college here must be jus­
tified as necessary to fulfill a compelling interest. True, the 
Washington Supreme Court, in DeFunis v. Odegaard, 82 Wn.2d 
11, subjected the law school s' admissions policy to that scru­
tiny and said that the policy was necessary to fulfill a compel­
ling interest of the state. However, we suggest that this Court 
has never suggested that state policies designed to correct the 
inequities suffered by such minorities are suspect.

The genesis of the so-called two-tier scrutiny test can be 
found in Justice Stone’s footnote 4 in United States v. Carolene 
Products Co.,35 where he stated that in the case under consid­
eration it was not necessary to consider whether the legisla­
tion should be subjected to a more exacting judicial scrutiny 
under the general provisions of the Fourteenth Amendment 
which might be required were the Court considering

“. . . whether prejudice against discrete and insular minori­
ties may be a special condition which tends seriously to cur­
tail the operation of those political processes ordinarily to be 
relied upon to protect minorities, and which may call for a 
correspondingly more searching judicial inquiry.” (Emphasis 
supplied)

What obviously concerned Mr. Justice Stone was the vulner­
ability of minorities to government actions approved by the 
majority which may deny minorities protection afforded by 
the Constitution. There could be and were circumstances 
where government actions based on racial classifications had 
such purpose and effect, and the Court could properly subject 
such actions to the closest judicial scrutiny to determine if they 
could be justified by some compelling state interest.36

35. 304 U.S. 144 at 152-153.
36. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Hira- 

bayashi v. United States, 320 U.S. 80 (1943).



23

The California court, by asserting that no “less demanding 
standard of review” is required if the race discriminated 
against is the majority, merely evidences its failure to grasp the 
underlying rationale for the two-tier scrutiny test for judicial 
review of government classifications under the Fourteenth 
Amendment.

Strict scrutiny would be appropriate if California’s popula­
tion were made up of a majority of Blacks and Chicanos, its 
legislature were controlled by them, and they predominated 
on the board of regents, and the complaint still were made by 
a white person. This record does not even suggest that situa­
tion. Strict scrutiny should not apply to official action where a 
white majority (legislators, regents or medical school adminis­
trators) apportion benefits among whites and minorities in 
order to correct the effects of historical racial discrimination.

This Court has wisely rejected recent invitations to strictly 
scrutinize classifications alleged as suspect, and thereby engage 
in judicial legislation. In Kahn v. Shevin37 this Court refused to 
grant relief to a widower who claimed that the Florida tax 
law giving widows a tax exemption was a denial of his rights 
under the equal protection clause. In reaching its conclusion, 
the majority of this Court, with Mr. Justice Douglas writing 
the opinion, examined the purpose of the legislation, which 
wras to reduce the disparity between the economic disabilities 
of men and women. It found that the questioned preference to 
widows “rests upon some ground having a fair and substantial 
relation to the object of the legislation.” Even if Kahn v. Shevin 
had been decided on the basis of strictest scrutiny, there would 
still have been obvious steps open to a Florida legislature by

37. 416U.S. 461 (1974).



24

way of correction: tax exemptions to all surviving spouses, to 
all poor spouses below specified levels of wealth or income, 
etc. Affirmance of Bakke, whatever is said about scrutiny, 
compelling qualities of the interest, or degree of suspicion 
would leave no such alternatives open.

In Morton v. Mancari,38 decided in the same term as Kahn, 
the Court unanimously upheld the constitutionality of the pref­
erence in employment and promotion offered to Indians under 
the Indian Reorganization Act of 1934 against a challenge by 
non-Indian Bureau of Indian Affairs employees, who chal­
lenged the preferences as both contrary to the Equal Employ­
ment Opportunity Act of 1972 and the equal protection compo­
nent of the Fifth Amendment of the Constitution. In reaching 
its conclusion, the Court noted the long history of discrimina­
tion against Indians and the disadvantages they sustained by 
reason of that discrimination in employment opportunities. 
This, coupled with the fact that the Bureau of Indian Affairs 
manages the affairs of Indians, justified, in the eyes of the 
Court, the act of Congress giving preferential treatment to In­
dians in employment by the Bureau of Indian Affairs, even 
though the Court recognized that displacement of non-Indians 
was “unavoidable if room were to be made for Indians.”39 Al­
though the Court, in making its determination, was careful to 
point out that the preference is not directed toward a "racial’ 
group consisting of ‘Indians,’40 there was no denial that the 
claimants were excluded from employment because they were 
not Indians, in the same way that plaintiff in this case contends 
he was excluded from the medical school program because he 
was not a racial minority.

38. 417 U.S. 535(1974).
39. 417 U.S. at 544.
40. 417 U.S. at 544.



25

C. The California court erred in requiring a showing of past 
discrimination as necessary to justify a voluntary prefer­
ential program designed to remedy the effects of historical 
discrimination.

The California court was unpersuaded by the many cases in 
a variety of federal circuits which upheld the court-ordered 
racial preferences and quotas in employment in order to 
remedy past discrimination, saying that there was “no evi­
dence in the record to indicate that the University has discrimi­
nated against minority applicants in the past.”41 It made the 
startling statement that “it is unconstitutional reverse discrimi­
nation to grant a preference to a minority employee in the ab­
sence of a showing of prior discrimination by the particular 
employer granting the preference. Obviously, the principle 
would apply whether the preference was compelled by a 
court or voluntarily initiated by the employer.” (Emphasis sup­
plied)

The alarming consequences of an affirmance of that holding 
would be the termination of all affirmative action programs in 
all institutions of higher education which do not have a history 
of racial segregation.

We believe a more reasoned approach was taken by the 
court in German v. Kipp,42 which refused to reach the conclu­
sion of the California court, stating that it “. . . in effect would 
require employers to admit past discrimination or wait until 
they were sued by a minority individual and compelled to im­
plement affirmative action.” Such a conclusion, the court 
stated, would “contradict the spirit of the Fourteenth Amend-

41. Pet. for Cert. 31a.
42_____F.Supp_____ , U.S.D.C. W.Mo. (April 7, 1977).



26

ment and its mandate to remove not only the incidence of dis­
crimination, but its effect as w ell. .

in
AFFIRMANCE OF THE COURT BELOW WOULD 
DENY STATE EDUCATIONAL AUTHORITIES THE 
DISCRETION THEY REQUIRE TO FORMULATE 
AND IMPLEMENT EDUCATIONAL PROGRAMS 
DESIGNED TO BENEFIT ALL OF THEIR STU­

DENTS.

This Court has long recognized the right of school authori­
ties to take account of race in forming and effectuating non- 
discriminatory educational policies. As the Chief Justice said, 
speaking for the Court in Swann v. Charlotte Mecklenburg 
Board of Education:43

“School authorities are traditionally charged with broad 
powers 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 . . .”

But general affirmance of the court below would deny 
school authorities that very ability and at a critical time in the 
nation’s history. Within the past decade opportunities have 
been opened up to minorities traditionally denied access to our 
institutions of higher education, and particularly to their grad­
uate and professional programs. Progress has been made pri­
marily because of the voluntary efforts of institutions across the 
country to undertake race-conscious programs similar to the

43. 402U.S. 1, 16(1971).



27

one challenged here. The achievement of the goal of a truly 
integrated society is far from accomplished. To stop those ef­
forts before that goal is achieved because of a rigid and narrow 
constitutional doctrine such as that enunciated by the lower 
court would be a tragic setback to the nation.

There are those who have criticized the University’s admis­
sion policy challenged here as inept. To deny our institutions of 
higher education the opportunity to experiment with a variety 
of methods to achieve the goal of truly integrated educational 
programs, truly integrated professions, and truly integrated 
faculties because of the ineptness of one experiment would do 
grave injustice to the nation and to the educational institutions 
serving it.

CONCLUSION

The judgment of the Supreme Court of California should be 
reversed.

Respectfully submitted.
SLADE GORTON, Attorney 
General, and
JAMES B. WILSON, Senior 
Assistant Attorney General 
112 Administration Building 
University of Washington 
Seattle, Washington 98195 
Attorneys for Amicus Curiae





29

APPENDIX A

RESOLUTION

WHEREAS the University of Washington provides unique 
educational opportunities, particularly in its grad­
uate and professional schools, and

WHEREAS those educational opportunities are of particular 
importance in helping fulfill the nationally rec­
ognized need to increase the number of under­
represented minorities and women in certain of 
the academic ranks and professions, and

WHEREAS the University has a special ability to provide the 
necessary undergraduate educational opportuni­
ties which can increase the number of qualified 
minorities and women for consideration for admis­
sion into the graduate and professional schools 
both at the University of Washington and at other 
institutions of higher education, and

WHEREAS the deans, chairpersons, faculties and students of 
the graduate and professional schools are com­
mitted to the continuing development of the pres­
ent programs for minority and women students, and

WHEREAS the Board of Regents considers it to be one of the 
highest educational priorities of the University to 
provide special educational opportunities to per­
sons from minority groups which have been his­
torically denied access to higher levels of higher 
education and to women in those professional and 
academic fields where they have been traditionally 
grossly under-represented,

NOW THEREFORE, be it resolved by the Board of Regents that:
(1) The Graduate School and the professional 

schools continue to recognize the need for 
greater representation of minority groups 
and/or academic ranks by developing, enun­
ciating and implementing admissions policies 
which are consistent with the fulfillment of 
this need;

(2) The Graduate School together with depart-



30

ments offering graduate degree programs and 
the professional schools continue to recognize 
the need for greater representation of women 
who are under-represented in their professions 
and/or academic ranks by developing, enun­
ciating and implementing admissions policies 
which are consistent with the fulfillment of 
this need;

(3) The Office of Minority Affairs continue to 
recruit minorities and provide such special 
educational opportunities as it deems necessary 
in order that more persons from under-repre­
sented minorities may qualify for admission 
into the graduate and professional schools;

(4) The Office for Minority Affairs-Health Sciences 
Center and the Office for the Recruitment of 
Minority Graduate and Professional Students 
continue their special programs for the in­
creased enrollment and continuing educational 
support of minority graduate and professional 
students;

(5) The President of the University, through his 
designees, identify those areas of special need 
for increased representation of minority groups 
in the academic and professional ranks and 
develop, enunciate and implement programs 
which be believes will enable the University 
to help fill that need;

(6) The President of the University, through his 
designees, provide such special educational 
opportunities as are deemed necessary in 
order that more women may qualify for ad­
mission into the graduate and professional 
schools; and

(7) The President of the University, through his 
designees, identify those areas of special need 
for increased representation of women in the 
academic and professional ranks and devel­
op, enunciate and implement programs which 
he believes will enable the University to help 
fill that need.



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