Columbus Board of Education v. Penick Slip Opinion

    M*£$ M. NAMlf, HI
wsocwtMwwsa

IN THE

feprrmr Court of tfyr Hmtrfo Stairs
OCTOBER TERM 1976

No. 76-811

THE REGENTS OF THE UNIVERSITY 
OF CALIFORNIA,

v.
Petitioner,

ALLAN BAKKE,
Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF CALIFORNIA

BRIEF OF THE NATIONAL FUND FOR 
MINORITY ENGINEERING STUDENTS, 

AMICUS CURIAE

David Ginsburg 
Lee R. Marks 
Martha Jane Shay
GINSBURG, FELDMAN AND BRESS
1700 Pennsylvania Avenue, N.W. 
Washington, D.C. 20006
Attorneys fo r  Amicus Curiae

THE CASILLAS PRESS, INC.-1717 K Street, N. W.-Washington, D. C.-223-1220



(i)

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS ........................................................  1

1. Description of NFM ES................ ......................................  1

a. The NFMES Effort ............................ ................... 1

b. The Background of NFMES. . .   .......................... 3

2. NFMES' Concern............................................................  5

QUESTION PRESENTED ...................... .. .....................................  8

SUMMARY OF ARGUMENT ............. ........................................... 9

ARGUMENT . ................................... ..................... ......................... n

I. There Are No “Racially Neutral Means” of 
Reducing the Underrepresentation of 
Minorities in Engineering Schools and 
in the Engineering Profession.................................... .. . II

II. The Underrepresentation of Minorities in the 
Professions Today is the Result of 
Unconstitutional Segregative Practices 
and L aw s...................................................................... . 1 2

A. Prior to Brown v. Board o f Education,
Southern States Did Not Provide “Separate
But Equal” Education for Blacks .......................... 14

1. Higher education available to Blacks 
in the 17 Southern and border states 
was qualitatively and quantitatively 
inferior to that available to whites ............... 15

a. Quantity of education 15



(ii)

b. Quality of education.............

2. The states employed a variety of 
devices and tactics to continue to 
deny equal higher education to 
blacks.........................................

B. Brown v. Board o f Education Did Not End 
Segregative Practices in Higher 
Education..................................................

1. Some states refused to recognize that
Brown applied to institutions of higher 
education ...........................................

2. A variety of devices were employed
by the states to frustrate the 
application of Brown to higher 
education ...........................................

a. Certificates.....................................

b. Appropriations..............................

c. Accreditation.................................

d. “Private” character of schools . . .

C. The Segregative Practices in Higher
Education Caused the Underrepresentation 
of Minorities in the Professions .................

HI. Affirmative Action Programs Can Be Required 
When A State Supported School Has Discrimi­
nated Against Minorities ................................

IV. Professional Schools Are Permitted to
Undertake Affirmative Action Programs for a 
Limited Time Where Underrepresentation of 
Minorities in Such Schools, and in the 
Professions, Results from Widespread 
Segregative Practices in the P a s t ......................



(iii)

A. Voluntary Efforts to Eliminate the Effects 
of Past Discrimination Have Been Supported 
by this Court and Are Consistent with
National Policy ...................................................... 29

B. The Professions and Professional Schools 
Are National in Character and Are Entitled to 
Remedy the Effects of Past de jure
Segregative Practices................................................31

C. The Focus of the Court Below Was Too
Narrow .......................     32

D. Voluntary Affirmative Action Programs Are 
Permitted Even When Past Discrimination
Has Been de facto Rather Than de j u r e ...............  33

E. Once Minorities Have Achieved Equal 
Access to Professional Schools and to 
the Professions, Affirmative Action 
Programs Would no Longer be Permissible
Under the Equal Protection Clause ........................35

CONCLUSION.................  36



(iv)

TABLE OF AUTHORITIES

Cases: Page

Addabho v. Donovan, 16 N.Y.2d 619, 261 N.Y.S.2d 68,
209 N. E. 2d 112, cert, denied.
382 U.S. 905(1965).......................................................................... 34

Bakke v. Regents o f the University o f California. 132 Cal. Rptr. 680,
553 P.2d 1152(1976) ...........................................  6,9,10,31,32,34

Battle v. Wichita Falls Junior College District.
101 F. Supp 82 (N.D. Tex. 1951), affd, 204 F.2d
632 (5th Cir. 1953), cert, denied. 347 U.S. 974 (1954)................... 19

Booker v. Board o f Education, 45N.J. 161,212 A.2d 1
(1965)............. ..................................................................................  30

Booker v. Tennessee Board of Education. 240 F. 2d
689 (6th Cir.), cert, denied. 353 U.S. 965 (1957)............................  21

Bridgeport Guardians Inc. v. Members of Bridgeport 
Civil Service Commission. 482 F.2d 1333 (2d Cir. 1973) 
cert, denied. 421 U.S. 991 (1975)....................................................  27

Brown v. Board o f Education. 347 U.S. 483
(1954)....................................................  14, 19, 20, 21, 22, 25, 28, 29

Bruce v. Stilwell. 206 F.2d 554 (5th Cir. 1953) 19

Carter v. Gallagher. 452 F.2d 315 (8th Cir. 1971), 
cert, denied. 406 U.S. 950(1972)....................................................  9

Cisneros v. Corpus Christi Independent School District.
467 F.2d 142 (5th Cir. 1972), cert, denied.
413 U.S. 920(1973)............................................................................ 13

Constantine v. Southwestern Louisiana Institute. 120
F. Supp. 417 (W.D. La. 1954)......................................................19

Crawford v. Board o f Education. 130 Cal. Rptr. 724,
551 P.2d 28 (1976) ...................................................................  29,32



(v)

Cvpress r. Newport News General and Nonsectarian 
Hospital Ass'n, 375 F.2d 648 (4th Cir. 1967) ...................... .. 14

Deal v. Cincinnati Board of Education, 369 F.2d 55
(6th Cir. 1966), cert, denied. 389 U.S. 847(1967) ........................ 33

Florida ex rel. Hawkins v. Board of Control 350
U.S. 413 (1956) ..............................................................................  21

Franklin v. Parker, 223 F. Supp. 724 (M.D. Ala. 1963),
modified. 331 F.2d 841 (5th Cir. 1964)..................... ................... 24

Frasier v. Board of Trustees, 134 F. Supp. 589
(M.D.N.C. 1955), affd,  350 U.S. 979(1956)................................  20

Gantt i’. Clemson Agricultural College, 320 F.2d 611
(4th Cir.), cert, denied, 375 U.S. 814 (1963)............................ 18, 23

Geier v. Dunn. 337 F. Supp. 573 (M.D. Term. 1972).................  14, 27

Gomperts v. Chase, 404 U.S. 1237 (1971)'................. • • ■ .................32

Green v. County School Board, 391 U.S. 430 (1968)........... . 14, 27, 28

Guida v. Board o f Education. 26 Conn. Sup. 121, 213
A.2d 843 (1965)............................................... .............................. 34

Guillory v. Administrator o f Tulane University, 203
F. Supp. 855 (E.D. La 1962)..........................................................  24

Hammond v. University of Tampa, 344 F.2d 951 (5th
Cir. 1965)............................................ .......... ......................... .. 25

Holmes v. Danner, 191 F. Supp. 394 (M.D. Ga.). stay
denied. 364 U.S. 939 (1961).... ............. , .......... .........................  23

Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959).......................... 22

Jackson v. Pasadena City School District, 31 Cal. Rptr.
606, 382 P.2d 878 (1963)........................... ....................................  32

Johnson v. San Francisco Unified School District, 339 
F. Supp. 1315 (N.D. Cal. 1971), vacated, 500 F.2d 349 
(9th Cir. 1974)............................................................ 32



(vi>

Keyes v. School District No. 1. Denver. Colorado.
413 U.S. 189(1973)..................................................  13, 27, 29, 33, 36

Lee v. Macon County Board o f Education. 267 F. Supp.
458 (M.D. Ala.), affd. 389 U.S. 215 (1967).....................................  21

Lucy r. Adams. 134 F. Supp. 235 (N.D. Ala.), affd.
228 F.2d 619 (5th Cir.), cert denied. 351 U.S. 931
(1955)................................................................................................ 20

Ludley v. Board o f Supervisors. 150 F. Supp. 900 
(E.D. La. 1957), af fd.  252 F.2d 372 (5th Cir.), 
cert, denied. 358 U.S. 819 (1958)....................................................  22

Lyons v. Oklahoma. 322 U.S. 596 (1944)...................

McCready v. Byrd. 73 A.2d 8 (Md.), cert, denied. 340 
U.S. 827 (1950)........................................................

McKissick v. Carmichael. 187 F.2d 949 (4th Cir.),
cert, denied. 341 U.S. 951 (1951)........................................... , . . . 19

McLaurin v. Oklahoma State Regents for Higher
Education. 87 F. Supp. 526 (W.D. Okla. 1948)............................. 18

McLaurin v. Oklahoma State Regents for Higher
Education. 339 U.S. 637(1950) ........................ ......................... 18. 25

Meredith v. Fair. 305 F.2d 343 (5th Cir.), cert, 
denied. 371 U.S. 828 (1962)......................................................... 23, 24

Missouri ex rel. Gaines v. Canada. 305 U.S. 337 
(1938). ..................................................................

Morton v. Mancari. 417 U.S. 535(1974)...............

Mt. Healthy City School District v. Doyle. 97 S. Ct.
568(1977) .......................................................................................  35

Nardone v. United States. 308 U.S. 338 (1939) ..........................  10. 35

Norris v. State Council o f Higher Education. 327 F.
Supp. 1368 (E.D. Va.), af fd mem.. 404 U.S. 907
(1971) ........................! ................................................................... 27

18,19.31 

.........14



(vis)

North Carolina State Board o f Education v. Swann.
402 U.S. 43(1971) .........................................................................  27

Offermann v. Nitkowski. 378 F.2d 22 (2d Cir. 1967)........................ 33

Parker v. University o f Delaware, 75 A.2d 225 
(Ch. Del. 1950)................................................................................  19

Pennsylvania Human Relations Commission v. Chester
School District. 427 Pa. 157, 233 A.2d 290 (1967)........................ 34

Plessy v. Ferguson, 163 U.S. 537 (1896).............................................  14

Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970), cert. 
denied. 402 U.S. 944 (1971)............................................................  9

Quality Education for All Children. Inc. v. School
Board, 362 F. Supp. 985 (N.D. 111. 1973).......................................  34

Reeves v. Eaves. 411 F. Supp. 531 (N.D. Ga. 1976)...................  10, 35

Rios v. Enterprise Assn. Steam Fitters Local 638
501 F.2d 622 (2d Cir. 1974)............................................................  28

Robinson v. Lorillard Corporation, 444 F.2d 791
(4th Cir.), cert, dismissed. 404 U.S. 1006 (1971)............................  36

Serna v. Portales Municipal Schools, 499 F.2d 1147
(10th Cir. 1974) .'..........................................................  13

Sipuel v. Board o f Regents. 332 U.S. 631 (1948) ........................ 18, 19

Soria v. Oxnard School District Board o f Trustees.
328 F. Supp. 155 (C.D. Cal. 1971), vacated. 448 
F.2d 579 (9th Cir. 1973), cert, denied, 416 U.S.
951 (1974) ..............................................................   32

Spangler v. Pasadena City Board o f Education. 311
F. Supp. 501 (C.D. Cal. 1970)........................................................  32

Springfield School Committee v. Barksdale, 348 F.2d
261 (1st Cir. 1965)............................................................................ 34



(viii)

Swann v. Charlotte-Mecklenberg Board o f Education
402 U.S. 1 (1971)...........................................  9. 14, 27. 28. 29, 31.35

Sweatt v. Painter. 339 U.S. 629 (1950)................................................19

United Jewish Organization v. Carey. 45 U.S.L.W.
4221 (March 1. 1977)...............................................................  27,34

United States v. Texas Education Agency. 467
F.2d 848 (5th Cir. 1972) .................................................................  !3

Vetere v. Allen. 15 N.Y. 2d 259, 258 N.Y.S. 2d 677, 206 
N.E. 2d 174, cert, denied. 382 U.S. 825(1965)..............................  34

Vulcan Society v. Civil Sendee Commission. 490
F.2d 387 (2d Cir. 1973).................................................................  28

Wanner v. County School Board o f Arlington County.
357 F.2d 452 (4th Cir. 1966) ........................................................ .. 33

Wilson v. Board o f Supervisors. 92 F. Supp. 986 
(E.D. La. 1950). affd.  340 U.S. 909(1951).....................................19

Wong Sun v. United States. 371 U.S. 471 (1963)..............................  33

Statutes and Regulations:

42U.S.C. §2000e . . .........................................    6

42 U.S.C. §2000e-2 ............................................................................  6

41 C.F.R. 60-2 .......................................................................................34

Other Authorities:

S. Rep. No. 872. 88th Cong., 2d Sess. (1964).....................................30

H.R. Rep. No. 914, 88th Cong., 2d Sess. (1964)................................  30

U.S. Bureau of the Census, Census o f
Population: 1940 ..........................................................  Appendix A



fix)

U.S. Bureau ot'the Census. Census o f
Population: 1950 ..........................................................  Appendix A

U.S. Bureau ot'the Census, Census o f
Population: 1960 ........................................................... Appendix A

U.S. Bureau of the Census, Statistical Abstract:
1960 (81st Ed. 1960) .....................................................................  15

U.S. Bureau of the Census. U.S. Census o f 
Population: 1970 ................................................ . 13. 25. Appendix A

U.S. Bureau of the Census. Statistical Abstract o f the
United States: 1970 (91st ed. 1970).......................... - ...................  25

U.S. Office of Education, National Sunny of the
Higher Education o f Negroes. General Studies of

Colleges for Negroes (1942).........................................  15, 16, 17, 18

J. Auerbach, Unequal Justice (1976) ................... ...........................  14

K. Davis, Administrative Law Text (3d ed. 1972) ............................. 12

R. Kiehl, Opportunities for Blacks in the Profession
(>l Engineering (1970)............................................................... 11, 12

H. Morais. The History o f the Negro in Medicine.
(1967) .......................................................... ............................ !4- 17

J. Stanford Smith. Address to the Engineering
Education Conference, July 25. 1972 .......................... ................. 4

J Weinstein & M Berger, Weinstein's Evidence (1975)...................  12

J. Wigmore. Evidence (3d ed. 1940)..................................... 12

Minorities in Engineering: A Blueprint for Action
(1974)............................................................................ ■ • 4, 5, 12. 13

New York Times. April 3. 1977 .................................................... • • 12



IN THE

&uprm? (Emtrt of tlf? lotted &tat?B
O C T O B E R  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 NATIONAL FUND FOR 
MINORITY ENGINEERING STUDENTS, 

AMICUS CURIAE

INTEREST OF THE AMICUS

1. Description of NFMES

a. The NFMES Effort

The National Fund for Minority Engineering Students 
(“NFMES”) is a non-profit corporation organized in Oc­
tober 1974

to increase the participation of underrepresented, 
disadvantaged minorities (including Blacks, Puer-



2

to Ricans, Mexican-Americans, and American In­
dians) in the engineering profession by enabling 
members of such minorities to acquire an 
engineering education. . . . Articles of In­
corporation, A rticle Third.

NFMES raises and provides scholarship funds to 
engineering schools for the support of minority engineering 
students. Some 70 engineering schools across the country 
receive funds from NFMES. Participating schools must 
agree to increase recruiting activities among minority 
groups, to meet agreed upon minority enrollment goals, to 
use NFMES funds to supplement rather than to replace 
funds normally used to help minority engineering students, 
to provide services for minority students, and to report 
periodically to NFMES.

The participating engineering schools select the students 
who are to receive scholarship awards; these students must 
be academically qualified, and they must be selected from 
the four target minorities. All scholarships are based on 
need.

In 1976-1977, the first full year of operation, NFMES is 
providing scholarship assistance for 718 students, which 
represents about five percent of all minority engineering 
students in this country and about 10 percent of minority 
engineering freshman. In 1977-1978, NFMES will continue 
to support these 718 students and, in addition, will provide 
assistance for approximately 400 more students. NFMES 
has raised $2.3 million in the past two and a half years, has 
pledges for an additional $2.2 million, and expects to raise 
$2.75 million in contributions and pledges annually. About 
80% of the contributions and pledges come from large in­
dustrial corporations; the balance comes from foundations 
and individuals.



3

b. The Background of NFMES

NFMES represents a nationwide effort by United States 
industry1 to increase the number of minority engineers. It 
was formed because of deep concern about the lack of 
minority engineers.

Addressing the Engineering Education Conference in 
1972, J. Stanford Smith, Chairman of International Paper 
Company, said

Of the 43,000 engineers graduated in 1971, only 
407 were Black and a handful were other 
minorities or women. One percent. It takes about 
fifteen to twenty-five years for people to rise to top 
leadership positions in industry. So if industry is 
getting one percent minority engineers in 1972, 
that means that in 1990, that’s about the propor­
tion that will emerge from the competition to top 
leadership positions in industry. . . .
Gentlemen, this is a formula for tragedy. Long 
before the year 1990, a lot of minority people are 
going to feel that they have been had. Already 
there are angry charges of discrimination with 
regard to upward mobility in industry, whereas 
the real problem, clearly visible today, is that

1 In addition to trustees from the academic world and from minority 
groups, the Board of Trustees includes the Chairmen of the Boards of 
American Can Company, The Bechtel Group, General Electric Com­
pany. General Motors Corporation, The Goodyear Tire & Rubber 
Company, Hewlett-Packard Company, International Business Ma­
chines Corporation, International Paper Company, Rockwell In­
ternational Corporation, Standard Oil Company of California, Union 
Carbide Corporation, and United States Steel Corporation; it also in­
cludes the Presidents of E. I. du Pont & Nemours & Company and In­
ternational Harvester Company and the Executive Vice President of 
American Telephone and Telegraph Company. Trustees personally at­
tend Board meetings, solicit funds, and are otherwise involved in NF­
MES affairs.



4

there just aren’t enough minority men and women 
who have taken the college training to qualify for 
professional and engineering work. . . .
To put the challenge bluntly, unless we can start 
producing not 400 but 4,000 to 6,000 minority 
engineers within the decade, industry will not be 
able to achieve its goals of equality, and the 
nation is going to face social problems of un­
manageable dimensions.2

In response to this problem, numerous groups focused on 
the need to increase minority representation in engineering. 
In December 1972 the Engineers’ Council for Professional 
Development co-sponsored with other organizations a task 
force known as the Minority Engineering Education Effort ; 
the task force called for a 10 to 15-fold increase in minority 
engineering graduates by the mid-1980s. In May 1973 the 
National Academy of Engineering sponsored a symposium 
which called for a similar increase. The Academy sub­
sequently established its Committee on Minorities in 
Engineering, and helped establish the National Advisory 
Council for Minorities in Engineering.

In late 1973, as the next step, the Alfred P. Sloan Foun­
dation encouraged and funded the formation of an ad hoc 
task force to recommend ways to increase the number of 
minority engineers. The 17 members of the task force — of­
ficially named The Planning Commission for Expanding 
Minority Opportunities in Engineering — were drawn from 
universities, industry, professional associations, and 
scholarship programs. Their efforts extended over seven 
months and resulted in a report entitled Minorities in 
Engineering: A Blueprint for Action, (1974) [hereinafter 
cited as Sloan Report].

2Address by J. Stanford Smith to the Engineering Education Con­
ference, Crotonville, N.Y., July 25. 1972. Mr. Smith has been Chairman 
of the Board of Trustees of NFMES since NFMES was organized.



5

The Sloan Report concluded that the
single most important barrier today to increasing 
minority participation in engineering is the lack 
of adequate financial aid for minority college 
students. At 12.

The Sloan Report recommended
the establishment of a single national organi­
zation to raise and distribute essential new funds 
for financial aid to minority engineering college 
students. Id.

NFMES was organized by the National Academy of 
Engineering (through its Committee on Minorities in 
Engineering), on the recommendation of the National Ad­
visory Council for Minorities in Engineering and the Sloan 
Foundation, as the “single national organization” called 
for by the Sloan Report.

The findings of the Sloan Report, and its recom­
mendations, were thus the result of a sustained 
examination of the lack of minority representation in 
engineering — and of ways to remedy it — by industry, the 
profession, educators, and minorities.

2. NFMES’ Concern
The specific question before this Court is whether a state 

medical school violates the Equal Protection Clause by set­
ting aside places in its entering class to be filled by minority 
applicants under a special admissions program. In light of 
the extensive efforts to reduce the underrepresentation of 
minorities in higher education, the case has obvious im­
portance for colleges and universities throughout the 
United States. We assume that Petitioners and other amici 
will address the implications for admissions programs, and 
for higher education generally, of affirming the opinion 
below.

NFMES is concerned that affirmance will substantially 
hamper and delay efforts to increase the number of



6

minority engineers. These efforts are important not only to 
achieve parity in the professions but because engineering is 
one route to top management positions in industry. If 
minorities are to be adequately represented in the top 
positions of major corporations, there must be an adequate 
number of minority engineers. Moreover, a growing pool of 
qualified minority engineers is important for the continued 
vitality of industry. Large corporations are hiring minority 
engineers in rapidly increasing numbers; they believe that it 
is right to do so, and in addition they are frequently 
obligated to do so.3 Qualified minority engineers must be 
trained quickly enough to meet the demand. As indicated 
above, it is the consensus of industry leaders, engineers, 
educators, and others that only through NFMES and like 
programs can the demand be met.

Even though we can distinguish the NFMES effort from 
the University of California’s special admissions program,4 
affirmance of the opinion below would almost surely 
prevent NFMES from achieving its objectives. Even if the 
Court decided the case on the narrowest possible grounds, 
there would be a period of uncertainty during which univer­
sity administrators and corporate donors might un­
derstandably be cautious about contributing to or working 
with any programs that used race as a selection criterion.

3See 42 U.S.C. §2000e; 42 U.S.C. §2000e-2; 41 C.F.R. 60-2.
4Because the NFMES scholarship funds are generated solely to assist 

minority engineering students, and must be used to supplement rather 
than to replace existing scholarship funds, the NFMES program does 
not “have the effect of depriving persons who were not members of a 
minority group of benefits which they would otherwise have enjoyed.” 
Bakke v. Regents o f the University o f California, 132 Cal. Rptr. 680,
688, 553 P.2d 1152, 1160 (1976). Similarly, the lack of access to a 
specific source of financial assistance “cannot be equated with the ab­
solute denial of a professional education." Bakke. 132 Cal. Rptr. at
689, 553 P.2d at 1161. Nonetheless, NFMES scholarships are available 
only to members of four minority groups.



7

During this period, NFMES and similar programs would 
be in grave danger of atrophying.

NFMES could avoid the constitutional problems raised 
by this case in either of two ways: first, it could award 
scholarships to students directly, without involving 
engineering schools; and second, it could award scholar­
ships to culturally or economically deprived engineering 
students of any race — and hope that enough of them were 
members of the four target minorities to justify the 
program. Neither way is satisfactory.

By working through engineering schools, NFMES 
stimulates institutional changes in minority recruitment, 
enrollment, educational support programs, and financial 
aid, to help ensure a permanent increase in the pool of 
minority engineering students. Otherwise, NFMES’ 
scholarship dollars might be nothing more than a sub­
stitute for existing resources. NFMES also relies on the 
expertise of engineering schools in selecting qualified stu­
dents and in disbursing funds. An essential part of the 
NFMES program would thus be sacrificed if NFMES had 
to abandon its current relationships with engineering 
schools.

Given the objectives and origins of NFMES, it would be 
difficult to open the program to disadvantaged persons 
generally. The engineering profession has traditionally at­
tracted people from low socio-economic backgrounds, with 
the exception of minorities. Thus, the fundamental con­
cerns that NFMES addresses are racial concerns, not 
cultural or economic concerns. And it would dissipate 
limited resources to cast a broad net when the real ob­
jectives are limited. What may give rise to a “formula for 
tragedy,” to “social problems of unmanageable dimen­
sions,” is the absence of Blacks and other minority 
engineers, not the absence of engineers from backgrounds 
of poverty.



8

NFMES looks to 1990 and beyond and to fair op­
portunities for all to join the top ranks of industry, govern­
ment, and the professions. The program attempts to 
forestall those who would say “we have been had” and to 
offer meaningful opportunity — now. It is part of a nation­
al effort, joined in by schools and universities, professional 
groups, industry, government, and others to redress the im­
balances caused by 200 years of unlawful discrimination.

Those who argue that the Constitution bars this effort 
argue that the Constitution must be color-blind or racially 
neutral; so it must be, in time. For the better part of 200 
years, however, the Constitution was not color-blind or 
racially neutral. It was relied upon to sanction the 
discriminatory practices that caused the under­
representation of minorities in higher education and the 
professions. It would be the ultimate irony to perpetuate 
the unequal condition of Blacks and other minorities now in 
the name of a color-blind Constitution. Discrimination on 
account of race is a shadow that we must remove. Once it is 
removed, the Constitution should indeed be color-blind. 
But if we determine to be color-blind now, while the effects 
of past discrimination are still pervasive, and to rely solely 
on “racially neutral means” to remove these effects, we are 
likely to need more time — measured in decades — than we 
can safely assume we have.

The parties have consented to the filing of this brief, as 
evidenced by letters on file with the Court.

QUESTION PRESENTED
Whether the Equal Protection Clause prohibits state 

supported professional schools from voluntarily using 
preferential admissions programs to reduce the un­
derrepresentation of minorities in such schools and in the 
professions, when such underrepresentation was caused by 
past de jure segregative practices engaged in by others, at 
least until the taint of the past segregative practices is 
dissipated.



9

SUMMARY OF ARGUMENT
If there were evidence of past discrimination at the 

medical school of the University of California at Davis, this 
would be a routine discrimination case. The courts have not 
hesitated to order that school boards, universities, or em­
ployers implement affirmative action programs where there 
has been a showing of past discrimination. Carter v, 
Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, denied, 406 
U.S. 950 (1972); Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 
1970), cert, denied, 402 U.S. 944 (1971).

In this case there is no showing of past discrimination by 
Petitioner, and no effort to compel Petitioner to take 
remedial action. Instead there is a voluntary effort by 
Petitioner to participate in a nationwide effort to reduce the 
underrepresentation of minorities in professional schools 
and in the professions caused by past unlawful conduct 
engaged in generally, although not by Petitioner. As the 
dissenting opinion below noted

It is anomalous that the Fourteenth Amendment 
that served as the basis for the requirement that 
elementary and secondary schools could be 
compelled to integrate should now be turned 
around to forbid graduate schools from volun­
tarily seeking that very objective. Bakke, 132 Cal. 
Rptr. at 719, 553 P.2d at 1191. (Emphasis in 
original).

We argue below that the Equal Protection Clause does not 
prohibit such voluntary efforts. The argument is, we 
believe, squarely before this Court for the first time, 
although it finds strong support in Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 16(1971).

We also believe that this Court can decide the case before 
it on grounds that fall squarely within prior decisions. The 
court below acknowledged that a racial classification does 
not violate the Equal Protection Clause if the classification 
serves a “compelling state interest” and there are no



10

reasonable alternative ways to meet that interest. Bakke, 
132 Cal. Rptr. at 690. 553 P.2d at 1162.5 The California 
Supreme Court assumed that the University’s objectives 
“met the exacting standards required to uphold the validity 
of a racial classification insofar as they establish a com­
pelling governmental interest.” Bakke, 132 Cal. Rptr. at 
693, 553 P.2d at 1165. The court rejected the special ad­
missions program on the ground that the University had 
failed to establish that it could not serve those objectives in 
alternative ways. We argue below, as others will un­
doubtedly argue, that no alternatives are available. If this 
Court accepts the factual proposition that only through 
preferential programs like the one before it can the un­
derrepresentation of minorities in higher education and the 
professions be reduced within an acceptable period of time, 
it can and should reverse the court below on the basis of 
established case law.

Finally, when there has been an unlawful invasion of a 
constitutionally protected right, remedial steps must be 
taken until the connection between the invasion and the 
result “becomes so attenuated as to dissipate the taint” . 
Nardone v. United States, 308 U.S. 338, 341 (1939). Af­
firmative action programs should thus be permitted only 
until the conditions caused by past discrimination have 
been ameliorated. When minorities have a meaningful op­
portunity to train for and enter the practice of medicine, 
law, engineering, architecture, pharmacy, etc., special ad­
missions programs and similar affirmative action programs 
will no longer be necessary or constitutionally permissible. 
Reeves v. Eaves, 411 F. Supp. 531,534 (N.D. Ga. 1976).

5There is of course serious question whether the court below was 
correct in applying the “compelling state interest" test rather than the 
“rational basis” test. We accept arguendo the application of the “com­
pelling state interest” test.



11

ARGUMENT

1. THERE ARE NO "RACIALLY NEUTRAL MEANS” OF 
REDUCING THE UNDERREPRESENTATION OF 
MINORITIES IN ENGINEERING SCHOOLS AND IN 
THE ENGINEERING PROFESSION.

The court below held that increasing the number of 
minority students in professional schools6 serves a “com­
pelling state interest.’’ At least with respect to engineering, 
it is the considered judgment of industry, educators, and 
the profession that special programs, employing race as a 
selection criterion, are necessary to reduce under­
representation.

As noted, the organization of NFMES in 1974 was the 
result of a long and concerted effort by industry, educators, 
and the engineering profession to deal with the un­
derrepresentation of minorities in engineering. A 1970 
report prepared for the Manpower Administration of the 
United States Department of Labor found that

time alone is not increasing the under­
representation of the U.S. black in the engin­
eering profession. During the last eight years 
there has been virtually no increase in the per­
centages of blacks in engineering education ex­
cept for special programs that some colleges 
have instituted to encourage and retain these 
students. R. Kiehl, Opportunities for Blacks in 
The Profession of Engineering, 13-14(1970). (Em­
phasis added).

In contrast to the extraordinary shortage of admissions 
places available generally in law and medicine7 “ftjhere is 
sufficient room in engineering schools that minority 
enrollment could be multiplied several times without taxing

6Only medical schools were at issue but similar reasoning applies to 
law, engineering, and other professional schools.

7Some 3,000 applicants competed for 100 admissions places in the 
medical school of the University of California at Davis.



12

the schools’ capacity,” Sloan Report 2, and “[t]here seems 
to be no question but that there are widespread education 
and employment opportunities for blacks in engineering 
and in technicians’ work,” Kiehl, supra, at 14.

Thus, despite the suggestion of the court below that un­
derrepresentation might be ameliorated by increasing the 
number of places available in the medical school, at least 
in engineering the underrepresentation of minorities is 
not the result of the absence of admission places8 or job op­
portunities. With an abundance of both, there was “vir­
tually no increase in the percentages of blacks in 
engineering education except for the special programs that 
some colleges have instituted to encourage and retain these 
students.” Id.

The Sloan Report found that “the single most important 
barrier today to increasing minority participation is the 
lack of adequate financial aid for minority college stu­
dents”. Sloan Report 12. The task force responsible for 
the Sloan Report was drawn from industry, universities, 
minority groups, and the profession; its considered 
judgment should not lightly be disregarded. Cfi J. Wein­
stein & M. Berger, Weinstein's Evidence §702[02] (1975) J. 
Wigmore, Evidence §1923 (3d ed. 1940); K. Davis, Ad­
ministrative Law Text §502 at 127, §14.11 at 287 (3d ed. 
1972).

II. THE UNDERREPRESENTATION OF MINORITIES IN 
THE PROFESSIONS TODAY IS THE RESULT OF UN­
CONSTITUTIONAL, SEGREGATIVE PRACTICES 
AND LAWS.

That minority groups are numerically underrepresented 
in the professions is beyond question. In 1970 Blacks, 
Chicanos, Puerto Ricans, and American Indians con­
stituted 2.8% of the engineers in the United States and

8We note that Mr. Bakke has a degree in engineering. N.Y. Times. 
April 3, 1977, §6 (Magazine), at 43, col. 1.



13

14.4% of the total population. Sloan Report 1. Blacks alone 
accounted for about 11% of the total population in 1970.9 
but only 2.06% of all architects, 1.25% of all lawyers and 
judges, 2.04% of physicians, 2.46% of dentists, 2.14% of 
pharmacists, and 1.12% of engineers. See page 26. infra. 
If this were the result of accident, or the free choice of 
Blacks and other minorities to eschew the professions, no 
constitutional questions would arise. Of course, it is not. In 
this section, we show that underrepresentation of minorities 
in the professions is the result of de jure segregative prac­
tices that effectively barred minority groups from higher 
education, including professional schools, until recently.

We deal primarily with Blacks because the case law and 
the data deal primarily with Blacks. Other minorities have 
suffered the same unconstitutional privations. This Court 
has held that “Hispanos constitute an identifiable class for 
purposes of the Fourteenth Amendment” and noted that 
“Hispanos suffer from the same educational inequities as 
Negroes and American Indians.” Keyes School District 
No. 1, Denver, Colorado. 413 U.S. 189, 197 (1973). See Ser­
na v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 
1974); United States v. Texas Education Agency, 467 F.2d 
848 (5th Cir. 1972); Cisneros v. Corpus Christi Independent 
School District, 467 F.2d 142 (5th Cir. 1972), cert, denied, 
413 U.S. 920 (1973). Upholding an employment preference 
in favor of Indians, this Court recently said:

The Indians have not only been thus deprived of 
civic rights and powers, but they have been largely 
deprived of the opportunity to enter the more im­
portant positions in the service of the very bureau 
which manages their affairs. Theoretically, the In­
dians have the right to qualify for the Federal civil

"U.S. Bureau of the Census. Census o f Population: 1970. GeneraI 
Population Characteristics. Final Report PCtll-Bl United States Sum- 
man’. 1-293, Table 60.



14

service. In actual practice there has been no 
adequate program of training to qualify Indians 
to compete. . . .  78 Cong. Rec. 11729 (1934) as 
cited in Morton v. Mancari, 417 U.S. 535, 544 
(1974).

We deal primarily with higher education because college 
and professional training are prerequisites for a pro­
fessional career. Segregation in higher education, how­
ever, is only part of the story. Segregative practices in the 
professions themselves contributed to the under­
representation of minorities.10 And there is no need to re­
mind this Court of the measures by which the Southern 
States — in which the vast majority of Blacks lived until 
recently — unlawfully prevented Blacks from obtainining 
elementary and high school educations.

It is not an answer to say that segregative practices 
among schools of higher education have ceased. This Court 
has recognized that inequalities produced by unlawful 
segregation are not remedied solely by cessation of the 
unlawful practices. Green v. County School Board, 391 
U.S. 430 (1968); Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971); Geier v. Dunn, 337 F. Supp. 
573 (M.D. Tenn. 1972).

A .Prior to Brown v. Board o f Education, Southern 
States Did Not Provide “Separate But Equal” 
Education for Blacks.

Prior to Brown v. Board o f Education, 347 U.S. 483 
(1954), the law required “separate but equal” educational 
facilities. Plessy v. Ferguson, 163 U.S. 537 (1896). The 
evidence is conclusive that the education available to 
Blacks, at least in the District of Columbia and the

'"See Cypress v. Newport News General and Nonsectarian Hospital 
Ass'n, 375 F.2d 648 (4th Cir. 1967); H. Morais, The History’ of the 
Negro in Medicine. 135, 147, 153 0  967); J. Auerbach, Unequal Justice. 
65-66,210-17 0976).



15

Southern and border states, was separate but not equal. In 
1940 some 80% of all Blacks lived in these states; 70% of all 
Blacks lived in these states in the 1950’s.11 Segregative 
practices in the South thus affected a substantial majority 
of all Blacks.

1. Higher education available to Blacks in the 17 Southern 
and border states was qualitatively and quantitatively in­
ferior to that available to Whites.

In 1942 the United States Office of Education issued a 
study documenting the quantity and quality of higher 
education available to Blacks. II National Survey o f the 
Higher Education o f Negroes. General Studies o f Colleges 
for Negroes (U.S. Office of Education 1942) [hereinafter 
cited as Survey]. The Survey focused on education op­
portunities available in 1940 in the District of Columbia 
and in the 17 Southern and border states in which the vast 
majority of Blacks lived.12

In some of these states, segregation of the races in 
separate schools was mandated by the state constitution; in 
others, it was statutory; in at least four states it was a crime 
to allow Blacks and Whites to share the same classrooms.

a. Quantity of education

The Survey noted that
No state makes adequate provision, when 

measured in terms of its provision for white per-

"U.S. Bureau of the Census, Statistical Abstract of the United 
States: I960, 30, Table 27 (81st ed. 1960) for figures from which per­
centages were computed. In addition to the District of Columbia, the 
states included are: Alabama, Arkansas, Delaware. Florida, Georgia, 
Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North 
Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and 
West Virginia.

1JThe Survey noted that few Negroes attended northern colleges and 
universities, that large numbers of northern Negroes went south to at­
tend college, and that few southern Negroes attended northern schools. 
Survey 79. Table 56; 82.



16

sons, for the graduate education of Negroes, . . . 
Professional offerings are virtually nonexistent in 
public institutions for Negroes and are available 
in only a few private institutions. No state which 
provides racially separate facilities at the level of 
higher education provides adequate facilities for 
the professional education of its Negro citizens.
At 21-22.

In 1940 only five private and seven public institutions 
provided graduate or professional training for black 
students in the 17 Southern and border states and in the 
District of Columbia. The 12 institutions accommodated 
1,864 students. In 11 states no graudate work wras available 
in black institutions. In 16 states a law curriculum was of­
fered for Whites, but it was available at black institutions 
in only two states. Similarly, in 13 of the 17 states the study 
of medicine was available at white institutions, but was of­
fered at black institutions in only two states.

With respect to engineering, the Survey13 found that for 
the 1939-40 academic year

—190 fields of specialization in engineering were 
available in all-white institutions, public and 
private, but only 10 fields of specialization were 
available in black-only institutions.

—Each state and the District of Columbia offered at 
least three and as many as 21 different fields of 
engineering specialty in white-only institutions.
The median offering per state was nine.

—13 of the 17 states offered no engineering training 
for Blacks. Private institutions in the District of 
Columbia and Alabama offered three and two 
fields of specialization respectively. Public in­
stitutions in North Carolina offered three, 
Oklahoma one, and Texas one.

" S i u t c y  10. Table 6.



17

The Survey noted that
in only 1, or possibly 2, of the [black-only] in­
stitutions which list fields of specialization in 
engineering are these curricula standard 
engineering curricula. In the other institutions 
these fields are chiefly for teacher training or 
trade training.”14 Survey 13 n.3.

Graduate work in engineering was available to Whites in 
each of the 17 states in at least three and in as many as 18 
fields of specialization. Survey 14, Table 7. No graduate 
work in engineering was available to Blacks. Id.

In the fall of 1947, only some 600 of the country’s 25,000 
medical students were Black. There were only two black 
medical schools in the country, Howard in the District of 
Columbia and Meharry in Tennessee. Lack of interest in at­
tending medical school was not the cause of the un­
derrepresentation of Blacks. Some 1,351 applicants com­
peted for 74 places at Howard; Meharry enrolled 55 of its 
800 applicants. H. Morais. The History o f the Negro in 
Medicine 94 (1967).

b. Quality of education

The Survey also documented the “sharp” differences in 
the quality of education offered to Blacks and Whites; it 
concluded that “in each of the States the public institutions 
for Negroes are inferior, qualitatively, to the public in­
stitutions for white persons.” Survey 22.

l4The limited offerings in engineering were not unique. For instance, 
in commerce, whose primary function the report described as 
“preparing] individuals for participation in business and commercial 
pursuits,” the following fields were not available to Blacks: Ac­
counting, advertising, banking and finance, business statistics, clothing 
and textile merchandising, engineering and business administration, 
management, manufacturing, marketing, personnel, administration, 
public utilities, real estate, retailing, foreign service. Sun’ey 11-12.



18

Accreditation by the Association of American Univer­
sities (“AAU”) was the chief measure of the quality of in­
struction. In 1938, 79 White-only institutions of higher learn­
ing in the 17 Southern and border states and the District 
of Columbia were accredited by the AAU; there was at least 
one public and one private white institution accredited in 
each state. The AAU had accredited only two private in­
stitutions for Blacks, and no public institutions for Blacks, 
in any of the 17 states or the District of Columbia. Survey 
16, Table 9.

2. The states employed a variety of devices and tactics to con­
tinue to deny equal higher education to Blacks.

In 1938 this Court held that if a state offered a specific 
field of graduate or professional study to Whites, it had to 
provide a substantially equal opportunity to Blacks, either 
by providing equivalent graduate or professional schools 
for Blacks or by permitting Blacks to attend white schools. 
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). 
Gaines also held unconstitutional the widespread practice 
of giving black residents tuition grants to attend out-of- 
state schools when a course of study available to white 
residents was not available at black institutions.

Although Gaines was decided in 1938, out-of-state tuition 
programs continued into the 1960’s. See Gantt v. Clemson 
Agricultural College, 320 F.2d 611 (4th Cir.), cert, denied 
375 U.S. 814 (1963). And despite the clear holding of 
Gaines, it took two decisions of this Court and one district 
court decision to persuade the University of Oklahoma to 
admit Blacks on an equal basis to its law and graduate 
schools when the state did not offer equivalent courses in its 
Black schools. Sipuel v. Board o f Regents, 332 U.S. 631 
(1948); McLaurin v. Oklahoma State Regents for Higher 
Education, 87 F. Supp. 526 (W.D. Okla. 1948); McLaurin 
v. Oklahoma State Regents for Higher Education, 339 U.S. 
637(1950).



19

To avoid Gaines and Sipuel, the governors of 14 states 
entered into an interstate compact for regional educa­
tion.'5 The compact created jointly owned and oper­
ated professional educational institutions in the profes­
sional, technological, and scientific fields. The theory was 
that if a state could not provide training for Blacks within 
its borders, it could satisfy its constitutional obligations 
by contracting for that training at an institution within 
the 14-state compact. The compact was struck down in 
McCready v. Byrd, 73 A.2d 8 (md.), cert, denied, 340 U.S. 
827(1950).

In the early 1950’s, the courts found, time and again, 
that Blacks were not being provided with equal opportuni­
ties for higher education. Sweatt v. Painter, 339 U.S. 629
(1950) ; Bruce v. Stilwell, 206 F.2d 554 (5th Cir. 1953); 
McKissick v. Carmichael, 187 F.2d 949 (4th Cir.), cert, 
denied, 341 U.S. 951 (1951), Constantine v. Southwestern 
Louisiana Institute, 120 F. Supp. 4177 (W.D. La. 1954); 
Battle v. Wichita Falls Junior College District, 101 F. Supp. 
82 (N.D. Tex. 1951), affd, 204 F.2d 632 (5th Cir. 1953), cert, 
denied, 347 U.S. 974 (1954); Wilson v. Board o f Super­
visors. 92 F. Supp. 986 (E.D. La. 1950), affd,  340 U.S. 909
(1951) ; Parker v. University o f Delaware, 75 A.2d 225 (Ch. 
Del. 1950).

B. Brown v. Board o f Education Did not End 
Segregative Practices in Higher Education.

Brown v. Board of Education did not put an end to the 
segregative practices that effectively denied professional

,5Aiabama, Arkansas, Florida, Georgia, Louisiana, Maryland, 
Missisippi, North Carolina, Oklahoma, South Carolina, Tennessee, 
Texas, Virginia, and West Virginia were the original signatories to the 
compact. Kentucky joined later.



20

training to Blacks.15 If it had, the taint from the practices 
before Brown might well have been dissipated by now.

1. Some states refused to recognize that Brown applied to in­
stitutions of higher education.

In 1955 three Negroes were denied admission to the 
University of North Carolina. By resolution, the University 
reaffirmed its policy of denying admission to Blacks. The 
students filed suit; the court rejected the University’s con­
tention that Brown “did not decide that the separation of 
the races in schools on the college and university level is 
unlawful”. Frasier v. Board o f Trustees, 134 F. Supp. 589, 
592 (M.D. N.C. 1955), affd, 350 U.S. 979 (1956). After 
quoting extensively from the Brown decision the court con­
cluded:

In view of these sweeping pronouncements, it is 
needless to extend the argument. There is nothing 
in the quoted statements of the court to suggest 
that the reasoning does not apply with equal force 
to colleges as to primary schools. Indeed, it is fair 
to say that they apply with greater force to stu­
dents of mature age in the concluding years of 
their formal education as they are about to en­
gage in the serious business of adult life. Frasier 
v. Board o f Trustees, 134 F. Supp. at 592-93.

See Lucy v. Adams, 134 F. Supp. 235, 238 (N.D. Ala.), 
affd,  228 F.2d 619 (5th Cir.), cert, denied, 351 U.S. 931 
(1955).

16When Brown was decided, about 70% of all blacks lived in states 
with segregated school systems. The Court in Brown noted that “in the 
North segregation in public education has persisted in some com­
munities until recent years. It is apparent that such segregation has 
long been a nationwide problem, not merely one of sectional concern” . 
347 U.S. at 491 n.6.



21

In 1956 this Court observed that even before Brown it 
had “ordered the admission of Negro applicants to 
graduate school without discrimination because of color.” 
It said:

As this case involves the admission of a Negro to a 
graduate professional school there is no reason 
for delay. He is entitled to prompt admission. . . . 
Florida ex rel. Hawkins v. Board o f Control, 350 
U.S. 413,413-14 (1956). (Emphasis added).

More than a decade later, this principle was still being 
reiterated by the courts.17 In Lee v. Macon Countv Board of 
Education. 267 F. Supp. 458 (M.D. Ala.), aff'd. 389 U.S. 
215, (1967), the District Court found that the state’s 
colleges were maintained on a segregated basis. It held:

[Tjhese schools have been and continue to be 
operated as if Brown v. Board of Education were 
inapplicable in these areas. . . .  It is quite clear 
that the defendants have abrogated, and openly 
continue to abrogate, their affirmative duty to ef­
fectuate the principles of Brown v. Board of 
Education, supra. Lee v. Macon County Board of 
Education. 267 F. Supp. at 474.

17Tennessee’s reluctant compliance with the law is documented in 
Booker v. Tennessee Board o f Education. 240 F.2d 689 (6th Cir.), cert, 
denied. 353 U.S. 965 (1957). The state devised a gradual integration 
plan under which graduate students would be admitted in the 1955-56 
academic year, college seniors the following year, juniors the year after 
that. etc. Under the plan it would be 1959-60 before any black fresh­
men were admitted. The University contended that the stepped ap­
proach was necessary to prevent overcrowding. The court found this 
defense inadequate noting particularly that 143 non-residents of Ten­
nessee were enrolled in the University.



22

2. A variety of devices were employed by the states to frustrate 
the application of Brown to higher education.

As constitutional provisions and statutes requiring a 
dual school system were struck down, other forms of main­
taining the status quo were devised.

a. Certificates

In 1956, the Louisiana legislature passed a law requiring 
applicants to institutions of higher education to present a 
certificate of eligibility and good moral character signed 
by their former principals and superintendents. The le­
gislature also passed a law which provided, in effect, that 
principals and superintendents would lose their jobs if they 
signed the certificates for Black applicants. The laws had 
the intended result of maintaining dual school systems. The 
court struck them down stating:

The fact that a transparent device is used, 
calculated to effect this same result, does not 
make the legislation less unconstitutional. Ludley 
v. Board o f Supervisors, 150 F. Supp. 900, 903 
(E.D. La. 1957), affd,  252 F.2d 372 (5th Cir.), 
cert, denied, 358 U.S. 819(1958).

In Georgia, admission to the university system required a 
certification of good moral character, based on personal 
acquaintance and attested to by alumni of the institution 
that the student desired to attend. This device was struck 
down in Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959). 
The court declared:

The effect of the alumni certificate requirement 
upon Negroes has been, is, and will be, to prevent 
Negroes from meeting this admission require­
ment. 172 F. Supp. at 856.18

18The court also declared invalid Georgia’s out-of-state tuition 
program for Blacks which was still in operation despite this Court’s 
declaration, over twenty years earlier, that such programs were un­
constitutional.



23

As late as 1962, the requirement of certificates was still 
being challenged in the courts. Meredith v. Fair, 305 F.2d 
343 (5th Cir.), cert, denied, 371 U.S. 828(1962).
The court found that:

One of the most obvious dodges for evading the 
admission of Negroes to ‘white’ colleges is the 
requirement that an applicant furnish letters or 
alumni certificates. . . . The University’s con­
tinued use of the requirement seems completely 
unjustifiable in view of decisions denying the use 
of such certificates at Louisiana State University 
and at the University of Georgia. We regard the 
continued insistence on the requirement as 
demonstrable evidence of a State and Univer­
sity policy of segregation that was applied to 
Meredith. Meredith, 305 F.2d at 352.

b. Appropriations

In 1961 the court struck down a 1956 Georgia law 
making maintenance of a one-race school a condition 
precedent to the receipt of state funds. Holmes v. Danner, 
191 F. Supp. 394, 400 (M.D. Ga.), stav denied, 364 U.S. 939 
(1961).

A similar legislative scheme in South Carolina was struck 
down in 1962. Gantt v. Clemson Agricultural College, 320 
F.2d 611 (4th Cir.), cert, denied, 375 U.S. 814 (1963).19

c. Accreditation

In 1963 Harold A. Franklin, a Negro, challenged the ad­
mission requirement of the Graduate School at Auburn 
University that an applicant possess an undergraduate 
degree from an accredited institution. The court held that 
in the context of Alabama’s overall higher education

l9The court also struck down South Carolina's out-of-state tuition 
grant program which was still in operation



24

program, the rule denied equal protection. Franklin v. 
Parker, 223 F, Supp. 724, 726 (M.D. Ala. 1963), modified, 
331 F.2d 841 (5th Cir. 1964). The court said

It is the State of Alabama . . . that causes and per­
mits the lack of accreditation of Alabama State 
College and it is the State of Alabama that causes 
or allows Auburn University’s requirement con­
cerning admission from an accredited institution.
. . . [T]he State of Alabama is as much to blame 
for the plaintiff’s inability to satisfy Auburn’s 
requirement for admission to its Graduate School 
as if “it had deliberately set out to bar the plain­
tiff from Auburn solely because he is a Negro.” 
Franklin v. Parker, 223 F. Supp. at 727.

Alabama was not the only state to use the accreditation 
requirement to perpetuate segregation. In Meredith v. 
Fair, the court commented on a requirement of the Univer­
sity of Mississippi that transfer students have prior training 
at “approved” institutions. The court said

Translating, the Registrar said that this means 
that Meredith could not transfer to the University 
because Jackson State College was not a member 
of the Southern Association of Colleges and 
Secondary Schools. It also means that the Board, 
which runs Jackson State too, could set up at 
Jackson State and other Negro colleges a program 
inherently incapable of ever being approved. . . .
The reason was never valid, and again demon­
strates a conscious pattern of unlawful discri­
mination. Meredith, 305 F.2d at 353.

d. “Private” Character of Schools

In several states, universities attempted to escape the 
reach of the Fourteenth Amendment by denominating 
themselves “private institutions. Guillory v. Admin­
istrators o f Tulane University, 203 F. Supp. 855 (E.D. La.



25

1962). See Hammond v. University o f Tampa, 344 F.2d 951 
(5th Cir. 1965).

C.The Segregative Practices in Higher Education 
Caused the Underrepresentation of Minorities in 
the Professions.

The denial of equal educational opportunity is the denial 
of opportunity to enter a profession. The practice of any 
profession today is contingent on graduation from an ac­
credited course of study. Entry to a profession is barred ab­
sent higher education. Even before Brown, this Court 
struck down barriers to higher education for a black 
student because such barriers denied the opportunity to 
become “a leader and a trainer of others.” McLaurin v. 
Oklahoma State Regents for Higher Education, 339 U.S. at 
641. In Brown, the need for equal education was based in 
part on the place of education as the “principal instrument 
. . . in preparing . . . for later professional training”. 347 
U.S. at 493.

As discussed above, the opportunity for Blacks to obtain 
professional training has not historically been equal to that 
provided for Whites; segregative practices persisted long 
after this Court demanded that they cease. De jure 
segregation in higher education may have been more 
prominent in the Southern and border states, but it has af­
fected virtually all Blacks because they lived in those states. 
In 1940, 80% of all Blacks lived in those states; in 1950, 
70%; and in 1960, 60%.20 By 1970, only 56% of the black 
population lived there.21

20See note 11 supra for source of figures for 1940 and 1950; the 1960 
figure was computed from U.S. Bureau of the Census, Statistical Ab­
stract of the United States: 1970, 27, Table 28 (91st ed. 1970).

21 U.S. Bureau of the Census. Census o f Population: 1970, General 
Population Characteristics, Final Report PCtIJ-BI United States Sum­
mary, 1-293, Table 60.



26

The following data, computed from U. S. Census 
figures,22 demonstrates the effect of the unconstitutional 
practices on the entry of Blacks into selected professions.

Blacks as Percentage
ot Employed (Male) in Selected Professions

Year

(Blacks as 
Percentage of 
Total Population)

1940

(9.7)

1950

(9.9)

1960

(10.5)

1970

(11)

Profession

Architects 0.4 0.6 0.41 2.06
Lawyers & Judges 0.6 0.8 1.1 1.25
Physicians &
Surgeons 2.2 2.1 2.1 2.04
Dentists 2.1 2.1 2.65 2.46
Pharmacists 1.0 1.4 1.11 2.14
Engineers 0.1 0.3 0.48 1.12

Civil 0.1 0.4 0.78 1.30
Electrical 0.1 0.3 0.48 1.37

From 1940 to 1960 only negligible gains were recorded. By 
1970, some significant advances had been registered, 
although not in medicine. With the advent of minority ad­
missions programs in the late 1960’s and early 1970’s, 
greater progress is being made.

III. AFFIRMATIVE ACTION PROGRAMS CAN BE 
REQUIRED WHEN A STATE SUPPORTED SCHOOL 
HAS DISCRIMINATED AGAINST MINORITIES.

It has been clear since 1968, with respect to dual school 
systems, that school authorities are “clearly charged with 
the affirmative duty to take whatever steps might be 
necessary to convert to a unitary system in which racial

“ See Appendix A for Census data from which the percentages were 
computed.



27

discrimination would be eliminated root and branch”. 
Green v. County School Board. 391 U.S. at 437-38 (1968).

The mere cessation of past segregative practices does not 
satisfy this duty. “Open-door” policies and “neighborhood 
school” programs have fallen when they “fail to counteract 
the continuing effects of past school segregation”. Swann, 
402 U.S. at 28. See also. Keyes v. School District No. 1, 
Denver. Colorado. 413 U.S. 189(1973); Geierv. Dunn. 337 
F. Supp. 573 (M.D. Tenn. 1972).

The adoption of racially neutral plans has also been held 
to be insufficient. Statutes that forbid the assignment of 
students “on account of race or for the purpose of creating 
a racial balance or ratio in the schools” have been struck 
down; such statutes, “against the background of 
segregation, would render illusory the promise of Brown v. 
Board of Education”. North Carolina State Board of 
Education v. Swann. 402 U.S. 43, 45-46 (1971). The same 
standards apply to higher education. Norris v. State Coun­
cil o f Higher Education. 327 F. Supp. 1368 (E.D. Va), a ff d 
mem.. 404 U.S. 907, (1971). Geier v. Dunn.

This Court has rejected arguments that the Constitution 
requires assignments to be made on a color blind basis . 
Swann. 402 U.S. at 19. In North Carolina State Board of 
Education v. Swann, the Court said:

Just as the race of students must be considered in 
determining whether a constitutional violation 
has occurred, so also must race be considered in 
formulating a remedy. 402 U.S. at 46.

And the Court has specifically supported quotas in 
school, districting, and employment cases. Swann; United 
Jewish Organizations v. Carey. 45 U.S.L.W. 4221, 4226 
(March 1, 1977) “fAj reapportionment cannot violate the 
Fourteenth . . . Amendment merely because a State uses 
specific numerical quotas in establishing a certain number 
of black majority districts” ; Bridgeport Guardians Inc. v.



28

Members o f Bridgeport Civil Service Commission, 482 
F.2d, 1333 (2d Cir. 1973) cert, denied, 421 U.S. 991 (1975) 
(entry level hiring); Rios v. Enterprise Assn. Steamfitters 
Local 638, 501 F.2d 622 (2d Cir. 1974); Vulcan Society v. 
Civil Sendee Commission, 490 F.2d 387 (2d Cir. 1973).

Thus, under prevailing law, the special admissions 
program at issue in this case would have been permissible 
under the Equal Protection Clause, and might have been 
required, if there were evidence of past discrimination by 
the Regents of the University of California.

IV. PROFESSIONAL SCHOOLS ARE PERMITTED TO UN­
DERTAKE AFFIRMATIVE ACTION PROGRAMS FOR 
A LIMITED TIME WHERE UNDERREPRESEN­
TATION OF MINORITIES IN SUCH SCHOOLS,
AND IN THE PROFESSIONS, RESULTS FROM 
WIDESPREAD SEGREGATIVE PRACTICES IN THE 
PAST.

Brown v. Board of Education was decided in 1954. A 
child born in that year would now be old enough to apply to 
medical school. If unlawful discrimination had ceased in 
1954 there would, perhaps, be no need for continued 
remedial efforts today. But the promise of Brown has not 
been fulfilled.

[M]any difficulties were encountered in im­
plementation of the basic constitutional 
requirement that the State not discriminate bet­
ween public school children on the basis of their 
race. . . . Deliberate resistance of some to the 
Court’s mandates has impeded the good faith ef­
forts of others to bring school systems into com­
pliance. The detail and nature of these dilatory 
tactics have been noted frequently by this court 
and other courts. . . . [I]n 1968, very little progress 
had been made. . . . Swann, 402 U.S. at 13.

In 1968 this Court ordered school authorities to develop 
a plan that “promises realistically to work now". Green r.



29

County School Board, 391 U.S. at 439. (Emphasis in 
original). In 1969, “fresh evidence of dilatory tactics” ap­
peared; the Court ordered that the remedy “be im­
plemented forthwith." Swann. 402 U.S. at 14. 
Desegregation orders have been issued against school 
systems in the non-Southern states. Keyes v. School District 
No. 1, Denver. Colorado, 413 U.S. 189(1973). California is 
no exception. Crawford v. Board of Education. 130 Cal. 
Rptr. 724, 551 P.2d 28 (1976).

The children of Brown — the graduates of an equal 
educational system — have not yet been born. We deal in 
Bakke with a generation that was promised equality but not 
given it.

We argued in the preceding section that affirmative ac­
tion programs, including those that rely on quotas, may be 
required when the party before the court has discriminated 
in the past. We argue here that professional schools should 
be permitted voluntarily to undertake such programs as 
part of the effort to reduce the underrepresentation of 
minorities in the professions and in professional schools — 
underrepresentation caused by segregative practices.

A.Voluntary Efforts to Eliminate the Effects of Past 
Discrimination Have Been Supported by This 
Court and Are Consistent with National Policy.

In Swann this Court distinguished between the measures 
that school authorities could undertake as a matter of 
discretion, “absent a finding of a constitutional violation” , 
and measures that a federal court could order them to un­
dertake to remedy a constitutional violation. It noted that 
“judicial powers may be exercised only on the basis of a 
constitutional violation” 402 U.S. at 16. The Court noted, 
however, that school authorities had broad discretion to act



30

voluntarily “absent a finding of constitutional violation’’. 
Mr. Chief Justice Burger said

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 reflec­
ting the proportion for the district as a whole. To 
do this as an educational policy is within the 
broad discretionary’ powers o f school authorities; 
absent a finding of a constitutional violation, 
however, that would not be within the authority of 
a federal court. 402 U.S. at 16. (Emphasis added).

Congress as well as this Court has emphasized the im­
portance of voluntary efforts to eliminate the effects of 
discrimination. Discussing the Civil Rights Act of 1964, 
which prohibited racial discrimination in voting, public ac­
commodations, education, and employment, the House of 
Representatives stated

[The Act] is general in application and national 
in scope. No bill can or should lay claim to 
eliminating all of the causes and consequences of 
racial and other types of discrimination against 
minorities. There is reason to believe, however, 
that national leadership . . . will create an at­
mosphere conducive to voluntary or local 
resolution of other forms of discrimination. H.R.
Rep. No. 914, 88th Cong., 2d Sess. Reprinted in 
1964 U.S. Cong. & Adm. News 2391, 2393.

The Senate Report noted “the measure speaks on the 
problem solving level with primary reliance placed on 
voluntary and local solutions. Only when these efforts 
break down would the residual right of enforcement come 
into play” . S. Rep. No. 872, 88th Cong., 2d Sess. Reprinted 
in 1964 U.S. Cong. & Adm. News 2355, 2356.



31

This case represents a voluntary response to the problem 
of eliminating the vestiges of segregation from education 
and employment. It represents both the exercise of the 
“broad discretionary powers of school authorities” referred 
to in Swann and the local initiative on which Congress 
placed “primary reliance” in 1964. In contrast, the cases 
that usually reach this Court represent a “break down,” an 
exercise of the “residual right of enforcement.”

B.The Professions and Professional Schools Are 
National in Character and Are Entitled to 
Remedy the Effects of Past De Jure Segregative 
Practices.

When Gaines and its progeny were decided, most Blacks 
lived in the South. Professionals were commonly educated 
in and practiced in the states in which they grew up. Con­
ditions have changed. Blacks and other minorities are 
widely dispersed. Professional schools no longer serve the 
parochial interests of a single state; they draw their student 
populations from a wide geographic area, and their 
graduates practice in many different places. The standards 
of professional education are national and are frequently 
set by the professions themselves. State supported 
professional schools both contribute to and benefit from a 
nationwide pool of students and graduates. Professional 
schools have responsibilities to the professions they serve.23 
In light of the national character of higher education and of 
the professions, the Court should not prevent professional 
schools from voluntarily undertaking, as an exercise of 
citizenship, to remedy the nationwide underrepresentation 
of minorities caused by widespread discrimination in the 
past. State universities should be permitted voluntarily to

"In  Bakke, the Petitioner states that its special admission program 
was necessary to integrate the profession. Bakke, 132 Cal. Rptr. at 692, 
553 F.2d at 1164. The court did not respond to this point.



32

remedy the de jure segregative practices of schools in other 
states.

C.The Focus of the Court Below Was Too Narrow.
In holding that “the University has not engaged in past 

discriminatory conduct” Bakke, 132 Cal. Rptr. at 697, 553 
P.2d at 1169, the court below apparently focused solely on 
whether the medical school at the University of California 
at Davis had discriminated in the past. It considered 
neither discrimination in the system of higher education 
administered by Petitioner — the Regents of the University 
of California — nor evidence of discrimination in Califor­
nia's elementary and secondary schools.

Segregation in the California school system is well 
documented. In one decision Mr. Justice Douglas said: 
“[T]here is a showing here that the State is maintaining a 
segregated school system for the Blacks and Chicanos that 
is inferior to the schools it maintained for the Whites.” 
Gomperts v. Chase, 404 U.S. 1237, 1239-40 (1971). See 
generally Johnson v. San Francisco Unified School Dis­
trict, 339 F. Supp. 1315 (N.D. Cal. 1971), vacated, 500 F.2d 
349 (9th Cir. 1974); Soria v. Oxnard School District Board 
o f Trustees, 328 F. Supp. 155 (C.D. Cal. 1971), vacated, 448 
F.2d 579 (9th Cir. 1973), cert, denied, 416 U.S. 951 (1974); 
Spangler v. Pasadena City Board o f Education, 311 F. 
Supp. 501 (C.D. Cal. 1970). Crawford v. Board of 
Education; Jackson v. Pasadena City School District, 31 
Cal. Rptr. 606, 382 P.2d 878 (1963). Segregation in elemen­
tary and secondary schools — whether de jure or de facto — 
must affect the ability of minority students to compete for 
admission to universities.

Discrimination by one agency of a state may not be suf­
ficient to justify court orders requiring affirmative action 
programs against another agency of the state. It should, 
however, be sufficient to justify voluntary efforts. It seems 
inconsistent to prohibit the University of California at



33

Davis from voluntarily undertaking remedial programs 
while simultaneously ordering California elementary and 
secondary schools to adopt similar programs.

D.Voluntary Affirmative Action Programs Are Per­
mitted Even When Past Discrimination Has 
Been De Facto Rather Than DeJure.

Even with respect to de facto segregation, the Con­
stitution does not bar voluntary efforts to eliminate the ef­
fects of past discrimination.24

That there may be no constitutional duty to act to 
undo de facto segregation, however, does not 
mean that such action is unconstitutional. 
Offermann v. Nitkowski. 378 F.2d 22, 24 (2d 
Cir. 1967).

Federal and state courts have routinely confirmed the 
authority of school boards and state agencies to reduce and 
eliminate de facto segregation and racial imbalance. Deal 
v. Cincinnati Board of Education. 369 F.2d 55 (6th Cir. 
1966). cert, denied. 389 U.S. 847 (1967); Wanner v. County

2JMr. Justice Powell would go further, and eliminate the distinction 
between de facto and de jure discrimination:

The focus of the school desegregation problem has not shift­
ed from the South to the country as a whole. Unwilling and 
footdragging as the process was in most places, substantial 
progress toward achieving integration has been made in 
Southern States. No comparable progress has been made in 
many non-southern cities with large minority populations 
primarily because of the de facto/de jure distinction nur­
tured by the courts and accepted complacently by many of 
the same voices which denounced the evils of segregated 
schools in the South. But if our national concern is for those 
who attend such schools, rather than for perpetuating a 
legalism rooted in history rather than present reality, we 
must recognize that the evil of operating separate schools is 
no less in Denver than in Atlanta. Keyes. 413 U.S. at 218 
(footnotes omitted).



34

School Board o f Arlington County, 357 F.2d 452 (4th Cir. 
1966); Springfield School Committee v. Barksdale, 348 
F.2d 261 (1st Cir. 1965); Quality Education for All Children 
Inc. v. School Board, 362 F. Supp. 985 (N.D. 111. 1973); 
Pennsylvania Human Relations Commission v. Chester 
School District, 427 Pa. 157, 233 A.2d 290 (1967); Booker v. 
Board o f Education, 45 N.J. 161, 212 A.2d 1 (1965); 
Addahbo v. Donovan, 16 N.Y. 2d 619, 261 N.Y.S. 2d 68, 
209 N.E.2d 112, cert, denied. 382 U.S. 905 (1965); Vetere 
v. Allen, 15 N.Y. 2d 259, 258 N.Y.S.2d 677, 206 N.E. 2d 
174, cert, denied, 382 U.S. 825 (1965); Guida v. Board of 
Education, 26 Conn. Sup. 121, 213 A.2d 843 (1965). As 
noted by the dissenting opinion in Bakke, these cases 
authorize the use of “racial classification to undo de facto 
school segregation, even if such de facto segregation is not 
itself unconstitutional”. 132 Cal Rptr. at 705 n.4, 553 
P.2d at 1177 n.4. The result is the same in the employment 
area.25 Id. n.5-6. And in cases involving districting and 
apportionment, this Court has said, “[t]he permissible use 
of racial criteria is not confined to eliminating the effects 
of past discriminatory practices.” United Jewish Organi­
zations. 45 U.S.L.W. at 4226.

2SThe cases cited do not deal with quotas but the employment cases 
frequently uphold the use of goals. The difference between “quotas” 
and “goals” may not always be apparent. The Office of Federal Con­
tract Compliance, for example, requires each government contractor 
who has more than 50 employees and a contract ot $50,000 or more to 
develop an affirmative action program. 41 C.F.R. 604.40(a). The con­
tractor is required to establish goals “which should be attainable’ 41 
C.F.R. 60-2.12(a). “Goals may not be rigid and inflexible quotas 
which must be met, but must be targets reasonably attainable by means 
of applying every good faith effort to make all aspects ot the entire af­
firmative action program work” . 41 C.F.R. 60-2.12(e). It would ob­
viously behoove a prudent contractor to make sure that his goal was at­
tained.



35

E.Once Minorities Have Achieved Equal Access to 
Professional Schools and to the Professions, Af­
firmative Action Programs Would No Longer Be 
Permissible Under the Equal Protection Clause.

Absent the past history of segregation and dis­
crimination, there would obviously be no basis for in­
terpreting the Equal Protection Clause as prohibiting 
discrimination against one race but not another or as sanc­
tioning favored treatment for any race. If the predicate for 
affirmative action programs is the need to remedy past 
wrongs, as we believe it is, then obviously the programs 
must cease once the wrongs have been remedied. This is 
standard constitutional doctrine.

An unlawful invasion of a constitutional right requires 
that remedial steps be taken until the connection between 
the invasion and the result “becomes so attenuated as to 
dissipate the taint” . Nardone v. United States, 308 U.S. at 
341. Accord, Lyons v. Oklahoma, 322 U.S. 5% (1944); 
Wong Sun v. United States, 371 U.S. 471 (1963). This “test 
of causation . . . distinguishes between a result caused 
by a constitutional violation and one not so caused.” Mt. 
Healthy City School District v. Doyle, 97 S. Ct. 568 (1977).

A discrimination case “does not differ fundamentally 
from other cases involving the framing of equitable 
remedies to repair the denial of a constitutional right.” 
Swann at 15.

Until minorities have had a meaningful opportunity 
to train for and enter the practice of medicine, law, 
engineering, architecture, pharmacy, etc., the voluntary use 
of special admissions programs and similar affirmative ac­
tion programs is, we contend, constitutionally permissible. 
Once a balance has been struck, further preferential treat­
ment would be unlawful discrimination. Reeves v. Eaves, 
411 F. Supp. 531, 534 (N.D. Ga. 1976).



36

CONCLUSION

If this Court upholds the University of California’s 
special admissions program, the voluntary desegregation of 
educational institutions and of the professions can proceed 
with a minimum of court intervention. If the voluntary ef­
forts of the University are struck down, all public voluntary 
programs are likely to suffer, increasing the burden on the 
courts as the only forum for relief from past discrimination. 
As Mr. Justice Powell noted in Keyes,

Communities deserve the freedom and the in­
centive to turn their attention and energies to this 
goal of quality education, free from protracted 
and debilitating [court] battles. . . . 413 U.S. at 
2719.

Mr. Bakke’s position is not without sympathy, but it is 
hardly unique. All affirmative action programs assist 
minority students or employees at the expense of their 
white counterparts — just as 200 years of discrimination 
did the reverse.

Where some employees now have lower ex­
pectations than their co-workers because of the 
influence of [racial discrimination] . . . they are 
entitled to have their expectations raised even if 
the expectations of others must be lowered in or­
der to achieve the statutorily mandated equality 
of opportunity. Robinson v. Lorillard Cor­
poration, 444 F.2d 791, 800 (4th Cir.) , cert, 
dismissed, 404 U.S. 1006 (1971).

We respectfully suggest that the underrepresentation of 
minorities in professional schools and in the professions is 
“a formula for tragedy,” that minority representation can 
be increased within a tolerable time only through voluntary 
special admissions programs and similar affirmative ac-



37

tion programs, and that the Constitution does not prohibit 
such programs.

Respectfully submitted,

David Ginsburg 
Lee R. Marks 
Martha Jane Shay

Ginsburg, Feldman and Bress 
1700 Pennsylvania Avenue, N. W. 
Washington, D. C. 20006

Attorneys for Amicus Curiae

The National Fund for Minority 
Engineering Students



Appendix A
Selected Employment Statistics 

1940— 1970

Occupation (Male) Total(%) WHite(%) Negro(%.) Other Races5

1 9 4 0 '

C iv il E n g in e e r s 8 0 .1 7 1 (1 0 0 % ) 8 0 ,0 0 8 (9 9 .8 % ) 9 5 (0 .1 % ) 6 8 (0 .1 % )
E le c t r ic a l  E n g in e e r s 5 3 .1 0 3 (1 0 0 % ) 5 2 ,9 9 1 (9 9 .8 % ) 7 9 (0 .1 % ) 3 3 (0 .1 % )
M e c h a n ic a l  E n g r s .  
O th e r  T e c h n ic a l

8 2 ,2 2 5 (1 0 0 % ) 8 2 ,1 5 6 (9 9 .9 % ) 5 4 (0 .1 % ) 4 5 (0 .1 % )

E n g in e e r s 2 9 ,0 2 9 (1 0 0 % ) 2 9 ,0 0 5 (9 9 .9 % ) 10(0 .0 % ) 1 4(0 .0% )
L a w y e rs  &  J u d g e s  
P h y s ic ia n s  &

1 7 3 ,4 5 6 (1 0 0 % ) 1 7 2 ,3 2 9 (9 9 .4 % ) 1 .0 1 3 (0 .6 % ) 14(0.0% ))

S u r g e o n s 1 5 7 ,0 4 1 (1 0 0 % ) 1 5 3 .3 8 8 (9 7 .7 % ) 3 .3 9 5 (2 .2 % ) 2 5 8 (0 .2 % )
D e n t i s t s 6 9 ,0 7 4 (1 0 0 % ) 6 7 ,4 7 0 (9 7 .7 % ) 1 .4 6 3 (2 .1 % ) 141(0.2% ))
P h a r m a c is t s 7 6 ,1 3 1 (1 0 0 % 7 5 ,2 5 0 (9 8 .8 % ) 7 6 9 (1 .0 % ) 1 1 2 (0 .1 % )
A r c h i te c ts 1 9 ,8 9 9 (1 0 0 % ) 1 9 .7 9 3 (9 9 .5 % ) 8 0 (0 .4 % ) 26(0.1%>)

1 9 5 0 2

C iv il E n g in e e r s 1 2 1 .3 8 6 (1 0 0 % ) 1 2 0 ,5 9 0 (9 9 .3 % ) 4 6 0 (0 .4 % ) 336<0.3%o)
E le c t r ic a l  E n g in e e r s 1 0 5 ,2 7 8 (1 0 0 % ) 1 0 4 ,7 4 2 (9 9 .5 % ) 3 3 7 (0 .3 % ) 199(0.2% ))
L a w y e rs  &  J u d g e s  
P h y s ic ia n s  &

1 7 4 .2 0 5 (1 0 0 % ) 1 7 2 ,7 1 9 (9 9 .1 % ) 1 ,3 6 7 (0 .8 % ) 1 1 9 (0 .1 % )

S u r g e o n s 1 8 0 ,2 3 3 (1 0 0 % ) 1 7 5 ,7 8 3 (9 7 .5 % ) 3 .7 6 9 (2 .1 % ) 6 8 1 (0 .4 % )
D e n t i s t s 7 2 .8 1 0 (1 0 0 % ) 7 1 .0 6 2 (9 7 .6 % ) 1 .5 2 5 (2 .1 % ) 223(0.3% ))
P h a r m a c is t s 8 0 ,8 5 5 (1 0 0 % ) 7 9 ,5 0 0 (9 8 .3 % ) 1 .1 4 7 (1 .4 % ) 2 0 8 (0 .3 % )
A r c h i te c ts 2 3 .8 2 3 (1 0 0 % ) 2 3 ,5 9 4 (9 9 .0 % ) 1 3 5 (0 .6 % ) 9 4 (0 .4 % )

I960’
C iv il E n g in e e r s 1 5 6 ,4 3 4 (1 0 0 % ) 1 5 3 ,2 5 8 (9 7 .% % ) 1 .2 2 7 (0 .7 8 % ) 1 .9 4 9 0 .2 4 % ))
E le c t r ic a l  E n g in e e r s 1 8 0 ,3 1 4 (1 0 0 % ) 1 7 7 .3 8 2 (9 8 .3 7 % ) 8 8 3 (0 .4 8 % ) 2 .0 4 9 0 .1 2 % )
L a w y e rs  Sc J u d g e s  
P h y s ic ia n s  &c

2 0 1 .5 5 6 (1 0 0 % ) 1 9 8 .8 2 8 (9 8 .6 4 % ) 2 .2 1 8 0 .1 0 % ) 5 1 0 (0 .2 5 % )

S u rg e o n s 2 1 4 .2 3 5 (1 0 0 % ) 2 0 5 .6 5 7 (9 5 .9 9 % ) 4 ,5 0 9 (2 .1 0 % ) 4 ,0 6 9 0 .8 9 % )
D e n t i s t s 8 5 .0 7 0 (1 0 0 % ) 8 1 .9 2 7 (9 6 .3 0 % ) 2 ,2 6 1 (2 .6 5 % .) 8 8 2 0 .0 3 % ))
P h a r m a c is t s 8 4 .8 0 3 (1 0 0 % ) 8 2 .5 5 1 (9 7 .3 4 % ) 1 .5 4 3 ( l.l l% > ) 709(0.83% o)
A r c h i te c ts 2 9 ,3 9 1 (1 0 0 % ) 2 8 .7 9 8 (9 7 .9 8 % ) 122(0.41% )) 4 7 1 0 .6 0 % ))

1970J
E n g in e e r s 1 ,2 1 3 ,0 7 1 (1 0 0 % ) 1 .1 7 7 ,8 5 8 (9 7 .0 9 % ) 1 3 ,6 2 4 0 .1 2 % ) 3 5 .0 8 2 (2 .8 9 % )

C iv il 1 7 3 ,7 7 5 (1 0 0 % ) 1 6 6 ,6 3 9 (9 5 .8 9 % ) 2.266(1 .30% o) 7 .690(4 .43% ))
E le c t r ic a l 2 8 0 ,4 2 9 (1 0 0 % ) 2 7 0 .3 7 7 1 % .4 1 % ) 3 .8 4 3 0 .3 7 % . 9 .339(3 .33% ))

L a w y e rs  &  J u d g e s  
P h y s ic ia n s  &

2 6 3 ,5 0 6 (1 0 0 % ) 2 5 8 .8 3 9 (9 8 .2 2 % ) 3 ,3 0 9 0 .2 5 % )) 3 ,5 7 3 0 .3 6 % ))

S u rg e o n s 2 5 4 ,8 5 4 (1 0 0 % ) 2 3 9 .1 9 0 (9 3 .8 5 % ) 5 .216(2 .04% )) 1 7 .0 7 2 (6 .7 0 % )
D e n t i s t s 8 9 ,8 0 0 (1 0 0 % ) 8 6 .2 5 2 (9 6 .0 4 % ) 2 .218(2 .46% )) 2 .204(2 .45% ))
P h a r m a c is t s 9 7 ,1 8 1 (1 0 0 % ) 9 3 .6 3 2 (9 6 .3 4 % ) 2 .084(2 .14% )) 3 .1 4 2 (3 .2 3 % ,)
A r c h i te c ts 5 4 .1 9 4 (1 0 0 % ) 5 1 ,5 4 1 (9 5 ,1 0 % .) 1 .1 2 0 (2 .0 6 % ) 2 .2 5 0 (4 .1 5 % .)

'U.S. Bureau of the Census. Census o f  Population: 1940. Vol. III. The Labor Force. Pan I. United States 
Summar\\ 88, Table 62.

2U.S. Bureau of the Census. Census o f  Population: 1950. Vol. II. Characteristics o f  the Population. Pan 
I. United States Summon. 1-276. Table 128.

'U.S. Bureau of the Census. Census o f  Population: I960: Subject Repons. Occupational Characteristics. 
Final Report. PC(2)-7A. 21, Table 3.

2U.S. Bureau of the Census, Census o f  Population: 1970. Subject Reports. Final Report. PC (I)-Bl. Oc­
cupational Characteristics. 593, Table 3.

'O ther races includes: Japanese. Chinese, Filipinio. American Indian, and persons of Spanish origin. Id.



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