Bakke v. Regents Reply Brief for Petitioner

    I s  THE

Supreme Court of the BnM States
O c t o b e r  T e r m  1977

N o. 76-811

T h e  R e g e n t s  o f  t h e  U n iv e r sit y  o f  C a l if o r n ia ,

Petitioner,
vs.

A l l a n  B a k k e ,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 

OF THE STATE OF CALIFORNIA

REPLY BRIEF FOR PETITIONER

A r c h ib a ld  C o x  
Langdell Hall 
Cambridge, MASS 02138

D o n a l d  L . R eid h a a r  
590 University Hall 
Berkeley, CA 94720

Counsel for Petitioner
Pa u l  J .  M is h k in  

J a c k  B . O w e n s

Of Counsel on the Reply Brief

S O R G  P R I N T I N G  C O M P A N Y  O F  C A L I F O R N I A ,  3 4 6  F I R S T  S T R E E T ,  S A N  F R A N C I S C O  9 4 1 0 5



SUBJECT INDEX

I. The Central Issue Unavoidably Presented by This Case
Is Not the Permissibility of Choosing a Particular Num­
ber for an Admissions Program as a Means of Allocat­
ing Educational Resources But Whether the Equal 
Protection Clause Forbids a State Professional School, 
by Whatever Measure It Finds Suitable, to Take Ac­
count of Race in Admissions to Remedy the Effects 
of Persistent and Pervasive Discrimination Against 
Racial Minorities ........... ........ ........... .................. ..............  2

A. It Is Unfair and Misleading to State That the 
Medical School Program Admits "Less Qualified’’
in Place of "Better Qualified’’ Applicants---------- 3

B. It Is Unfair and Misleading to Label the Medical 
School Program a "Quota.” The Choice of a Par­
ticular Numerical Target to Define the Scope of
the Program Has No Constitutional Significance.— 5

C. Respondent Was Not Denied Admission "Solely
Because of His Race” ................... -.......-.............. ...... 8

II. The Equal Protection Clause Does Not Bar a State from
Voluntarily Adopting and Implementing in Its Admis­
sions Practices a Policy of Increasing the Number of 
Medical Students and Doctors Who Are Fully Qualified 
for Admission and Who Come from Minority Groups 
Long Victimized by Pervasive Racial Discrimination .... 8

A. The Equal Protection Clause Permits Race-Con­
scious State Action Which Is Neither Hostile Nor 
Invidious and Which Is Closely Tailored to 
Achieving a Major Public Objective........................  8



ii S u b j e c t  In d e x

Page

III. The Educational and Social Purposes to Which the
Policy Is Tailored Amply Justify Consciously Increas­
ing the Number of Qualified Applicants Chosen from 
Minority Groups _____ ________ _________________  12

IV. Voluntary Minority Admissions Programs Raise D if­
ferent Constitutional Issues from Mandatory Affirma­
tive Action Programs of Minority Employment........... 13

V. The Case Should Not Be Remanded for the Findings 
Suggested by the United States_______ _____________  15

Conclusion ................................................................... .................  20



CITATIONS

Ca se s  P ages

Bates v. State Bar of Arizona, 97 S.Ct. 2691 (1977)— ...... 19-20
Bishop v. Wood, 426 U.S. 341 (1976)_________________ 18-19
Brown v. Board of Education, 347 U.S, 483 (1954) -------- 20

Califano v. Webster, 97 S.Ct. 1192 (1977)------------------ 9

Grayson v. Harris, 267 U.S. 352 (1925)---------------------- 3

Hunter v. Erickson, 393 U.S. 385 (1969)—------------------  H

Lau v. Nichols, 4 l4  U.S. 563 (1974)------------------------  9

Meachum v. Fano, 427 U.S. 215 (1976). _____________  19
Morton v. Mancari, 417 U.S. 535 (1974).___________ __  9

Pashall v. Christie-Stewart, Inc., 4 l4  U.S. 100 (1973)-----  3

Rizzo v. Goode, 423 U.S. 362 (1976)------------------------- 18

San Antonio School District v. Rodriguez, 411 U.S. 1 
(1973) __________— - ___________ ______________ 20

United Jewish Organizations of Williamsburgh, Inc. v.
Carey, 430 U.S. 144 (1977)______________________ 9, 15, 18

United States v. Carolene Products Co., 304 U.S. 144 
(1938) --------- ------- --------------------------------- -- -  11

C o n s t it u t io n s  

United States Constitution
Fourteenth Amendment _____________ ______—6, 7, 8, 17, 20

California Constitution
Article I, section 21 (Now Article I, section 7 ( b ) ) ----- 3

M is c e l l a n e o u s

Ely, The Constitutionality of Reverse Discrimination, 41 
U.Chi.L.Rev. 723 (1974) 11



I n  t h e

Supreme Court of tfje Umteb is>tat££

O c t o b e r  T er m  1977

N o. 76-811

T h e  R e g e n t s  o f  t h e  U n iv e r sit y  o f  C a l if o r n ia ,

'Petitioner,
vs.

A l l a n  B a k k e ,
Respondent.

ON WRIT O F CERTIORARI TO THE SUPREME COURT 

OF THE STATE OF CALIFORNIA

REPLY BRIEF FOR PETITIONER



2
I .

THE CENTRAL ISSUE UNAVOIDABLY PRESENTED BY THIS CASE 
IS NOT THE PERMISSIBILITY OF CHOOSING A PARTICU­
LAR NUMBER FOR AN ADMISSIONS PROGRAM AS A 
MEANS OF ALLOCATING EDUCATIONAL RESOURCES BUT 
WHETHER THE EQUAL PROTECTION CLAUSE FORBIDS A 
STATE PROFESSIONAL SCHOOL, BY WHATEVER MEASURE 
IT FINDS SUITABLE, TO TAKE ACCOUNT OF RACE SN 
ADMISSIONS TO REMEDY THE EFFECTS OF PERSISTENT 
AND PERVASIVE DISCRIMINATION AGAINST RACIAL 
MINORITIES.

The selection of approximately 16 qualified applicants for each 
entering class at Davis through the Task Force program from the 
black, chicano, Asian or American Indian minority flows from a 
decision to devote a larger portion of the University’s finite re­
sources to educating a greater number of qualified persons of 
disadvantaged backgrounds and minority race. No one denies that 
blacks, chicanos, Asians and American Indians have been isolated 
from the mainstream of American life by generations of racial dis­
crimination and disadvantage, de jure and de facto. No one denies 
that they have lacked equal access to higher education and the 
learned professions. The aim of the minority admissions program 
at Davis is to reduce that isolation; to demonstrate to boys and 
girls in the barrio and ghetto that the historic barriers to their 
entering the medical profession have been eliminated; to improve 
both medical education and the medical profession by increasing 
the diversity of both the student body and the medical profession; 
and to improve medical care in the underserved minority com­
munities. Accordingly, we share the view of the United States 
that this case presents one— and only one—inescapable question: 
"whether a state university admissions program may take race into 
account to remedy the effects of societal discrimination’’ (Brief 
for United States at 23).

We restate the issue which the Court cannot avoid because the 
Brief for Respondent and many of the supporting briefs of amici 
curiae attempt to hide it under misleading labels and inaccurate



3
generalizations. We address these sources of confusion first, and 
then turn to the real issue.1

A. It Is Unfair and Misleading to State That the Medical School 
Program Admits "Less Qualified" in Place of "Better Quali­
fied" Applicants.

It is accurate to say that a minority admissions program results 
in selecting for admission from among many fully-qualified candi­
dates some fully-qualified minority applicants who would not have 
been chosen under earlier color-blind criteria of selection.

The vice of the general labels, "better qualified” and "less 
qualified,” is that they confuse qualification for medical education 
and the profession with selection for admission from among the 
fully-qualified applicants, and then they go on to assume, contrary 
to fact, that there is some abstract and universal measure of who 
is "better qualified” for all purposes.

Everyone admitted to Davis is fully qualified for medical educa­
tion. There has been no compromise of the basic aim of medical 
education to produce intelligent, highly skilled and well-trained 
doctors with the commitment and human qualities most valuable

1. The jurisdictional doubt expressed in the Brief for the Lawyers 
Committee for Civil Rights Under Law at 6 n.2 results from misreading 
the record. In Paschall v. Christie-Stewart, Inc., 414 U.S. 100 (1973) 
the Court vacated and remanded because:

f l ] t  now appears that there might have been an independent and, 
possibly an unchallenged ground for the judgment of the state trial 
court, viz., the running of the Oklahoma period of limitation for 
adverse claims (Id. at 101 (emphasis added) ) .

In that event, in Paschall, the appellant could take nothing from even a 
favorable decision of the federal question. His failure to challenge the 
trial court’s alternate state ground for decision would bar the State 
Supreme Court from considering it, and therefore the trial court’s judg­
ment would in any event be affirmed.

The present case is different. The Lawyers’ Committee is quite wrong in 
” saying that "[t}h e  judgment of the trial court would be left standing 

whatever the disposition of the federal ground.”  Here, petitioner did 
challenge the trial court’s ruling that the minority admission program 
violates the California Constitution, Art. I, § 21 (now Art. I, § 7 (b ) )  
(R. 398-399). If this Court reverses the decision below on the federal 
question, the issue of state law will remain for decision. Respondent may 
seek to retain the judgment upon the non-federal ground, but the existence 
of that ground does not defeat jurisdiction where it is open and has not 
been considered by the highest state court. Grayson v. Harris, 267 U.S. 
352, 358 (1925).



4

in serving humanity. There has been no lowering of the measure 
of qualifications for study and the profession. There has been no 
compromise of academic standards after admission.

Once the choice is narrowed to those fully qualified for the 
study and practice of medicine, as the choice is narrowed at Davis, 
then the specific aims of the institution determine the criteria and 
particular qualifications for selection for admission.

Selection for admission is not a reward or a prize or the ration­
ing of benefits. Selection in some cases may be designed simply 
to reduce the rate of academic failure, but selection often also 
serves other important educational and social objectives. If the 
aim of a medical school is to produce professors for teaching and 
research, college grades and Medical College Admission Test 
scores may be the best measure of particular qualification. On the 
other hand, if a medical school judges that the public will be best 
served if it has among its fully-qualified students some who will 
best conduct clinics in the barrio, then the chicano applicant who 
speaks the language and colloquialisms of the barrio and who 
knows its folklore may be better qualified than other applicants 
even though they have higher academic ratings. If one purpose 
of a medical school is to persuade black students at overwhelm­
ingly black junior high schools to realize that by applying them­
selves to intellectual activity they too may become doctors, the 
black applicant is better qualified than the white, other things 
being equal, because personal acquaintance with a black medical 
student or a black physician provides young black students with 
more convincing evidence of their opportunities than a visit or 
any amount of exhortation from a white medical student. To the 
extent that the aim is to graduate students who will deliver health 
care on an Indian reservation, the American Indian applicant who 
grew up on a reservation and gives convincing evidence of his or 
her intent to return may reasonably be judged better qualified than 
an applicant from a different background.

The minority admissions program flows from a broadened view 
of the public needs and therefore of the educational and profes­
sional objectives of the Medical School at Davis, but there is noth­
ing novel about its taking public needs into account in admitting



5
some parts of a student body. Medical schools have long done this. 
For example, the Davis Medical School consistently has treated 
growing up in a rural area where health services are inadequate as 
a special qualification (R. 64-65).

B. It Is Unfair and Misleading to Label the Medical School Pro­
gram a "Quota." The Choice of a Particular Numerical Target 
to Define the Scope of the Program Has No Constitutional 
Significance.

1. The very use of the slippery word "quota” is unfair and 
misleading. Decision must turn upon the operative facts, which 
the label hides.

The 16 places assigned to the minority admissions program are 
not a ceiling upon the number of minority students in any class. 
Minority applicants are considered and accepted under the regular 
admission programs without limit of number and without refer­
ence to the number admitted under the Task Force program (R. 
216-19). The number of minority students in each class has 
always been more than 16 (ibid.).

The 16 places are not a guaranteed minimum for minority 
admissions. In two of the four years, 1971-1974, only 15 Task 
Force students were enrolled (Pet. Br, at 3). No applicant was 
admitted under the Task Force program without a decision—by 
both the Task Force subcommittee and the full Admissions Com­
mittee— that the applicant was fully qualified for medical educa­
tion (R. 67, 166-67).

In sum, the only significance of the number 16 is that the Davis 
faculty stated for the Admissions Committee a fairly exact measure 
of the proportion of its limited educational resources which it 
wished to devote to the social and professional purposes served 
by increasing the number of medical students and doctors drawn 
from the long-victimized minorities, who are thoroughly qualified 
to study and practice medicine, but who would lose out in competi­
tion for selection under the earlier criteria at a time when there 
are more than 30 applicants for every place.

2. The use of a fairly exact measure of the extent of this 
commitment has no constitutional significance.



6
Because resources are limited, every medical school is forced 

to strike a balance among the functions it would like to perform. 
Usually the necessity for allocating resources affects admissions 
policies and procedures. If the school wishes to increase the num­
ber of general practitioners in rural areas, it may give some prefer­
ence in admissions to qualified applicants who come from such 
areas and give convincing evidence of an intent to return, even 
though they might not be chosen if the sole aim were to emphasize 
training for teaching and research. Similarly, a balance must be 
struck among competing goals whenever a professional school 
decides to make it one of its objectives to promote purposes ad­
vanced by increasing the members of a profession drawn from the 
minorities long-victimized by racial discrimination.

One way to strike the balance is for the faculty to frame its 
determination with some precision, as at Davis, leaving it to the 
administrators to come back to the faculty if the conditions under­
lying the directive are altered, as when there is marked change in 
the pool of applicants. Alternatively, the faculty may strike the 
balance in general terms by adjective or range, or it may simply 
give approval to the reported practices of the admissions com­
mittee. The faculty might even leave the striking of the balance 
to the admissions committee to be made in the course of the com­
mittee’s ad hoc decisions to admit or deny.

Whether the balance be struck in one way or another has no 
constitutional significance. From the beginning the members of 
the Admissions Committee must have some idea of the balance 
they will strike between the goals supposed to be advanced by 
conventional admissions criteria and the goals served by having a 
larger number of qualified individuals from minority groups. In 
the end, policy must take shape in numbers. The Fourteenth 
Amendment neither prescribes the procedure for reducing policy 
to numbers nor proscribes one method while permitting others. 
The word "quota” as used by respondent and amici supporting 
him to condemn the Davis program is simply a pejorative. None 
of them would consider valid any race-conscious admissions pro­
gram, with or without a numerical objective. The rationale of 
every one of their briefs would, if accepted, invalidate any use of



7
minority status as a factor favoring the admission of any student.

3. The arguments focusing on "quota” miss the point for still 
another reason.

Even if the Court finds the decision to admit 16 fully qualified 
applicants under the Task Force program to violate the Fourteenth 
Amendment, the judgment below must be reversed unless the 
Court holds that any race-conscious admissions policy, designed to 
increase the numbers of minority students and minority members 
of the learned professions, is unconstitutional.

The trial court put its decision upon the ground that any race­
conscious admissions program is unconstitutional (R. 307). The 
judgment, and in particular the declaratory portion, bars the Uni­
versity from taking race into account in selecting applicants for 
admission (R. 394).

The Supreme Court of California in affirming that judgment 
specifically ruled that any race-conscious admissions program is 
unconstitutional (Pet. App. at 16a, 25a, 35a). The broad sweep 
of the decision as applying to race-conscious special admissions 
programs of "educational institutions” generally is made explicit 
in the opinion {id. at 38a n.34). In addition, the order for 
Bakke’s admission (R. 495) plainly rests upon the holding that 
the entire Task Force program is unconstitutional because it treats 
race as a relevant concern (Pet. App. at 37a).

The broader national interest also requires decision of the basic 
issue. To affirm the judgment below because of a misguided con­
cern as to the choice of a particular number to define a resource 
allocation, would discourage the governing boards and faculties of 
universities everywhere in the United States from pursuing admis­
sions programs giving minorities more nearly equal access to 
higher education and the learned professions. The adverse opinion 
of a prominent state court would be left to stand as a precedent 
in California and a persuasive influence in other states. The com­
bination of the California court’s ruling and this Court’s silence 
would force all governing boards and faculties to reappraise their 
minority admissions programs. They would have to pass judgment 
in a climate of legal hostility, facing a virtual certainty of litiga-



8
tion. The fundamental issues have now been fully explored. They 
require national resolution now, by the only court empowered to 
put the uncertainty to rest.

C. Respondent Was Not Denied Admission "Solely Because of 
His Race."

Respondent’s brief is filled with simplistic assertions that he 
"was excluded from a state operated medical school solely because 
of his race” (e.g., Resp. Br. at 2, 22, 26, 63). Respondent failed 
to gain admission because there were approximately thirty appli­
cants for every place available at Davis and his credentials were 
judged not to be strong enough to win him one of the places 
available to him. His application was denied for exactly the same 
kinds of reasons that the Admissions Committee in making selec­
tion decisions denied many other well qualified non-disadvantaged 
applicants, whites and minorities (R. 170, 195).

The Task Force program makes race a factor. It can fairly be 
said to diminish somewhat the chance an applicant has of gaining 
admission if he is not of one of the minority groups because, like 
any race-conscious admissions program, it reduces the number of 
places available to other applicants. But the program does not take 
from anyone a vested right or a certainty of admission. Respondent 
had no more right to a medical education than the other 2,300 or 
3,600 applicants for whom there was no room. Nor does the pro­
gram deny anyone admission solely because of his race.

II.
THE EQUAL PROTECTION CLAUSE DOES NOT BAR A STATE 

PROM VOLUNTARILY ADOPTING AND IMPLEMENTING IN 
ITS ADMISSIONS PRACTICES A POLICY OF INCREASING 
THE NUMBER OF MEDICAL STUDENTS AND DOCTORS 
WHO ARE FULLY QUALIFIED FOR ADMISSION AND WHO 
COME FROM MINORITY GROUPS LONG VICTIMIZED BY 
PERVASIVE RACIAL DISCRIMINATION.

A. The Equal Protection Clause Permits Race-Conscious State 
Action Which Is Neither Hostile Nor Invidious and Which Is 
Closely Tailored f© Achieving a Major Public Objective.

1. The decisions of this Court cited in our opening brief (pp. 
61-64) demonstrate that the Fourteenth Amendment contains no



9
blanket prohibition against raciaily-conscious state decisions. 
Whether United Jewish Organizations of Williamsburgh, Inc. v. 
Carey, 430 U.S. 144 (1977) and Morton v. Mancari, 417 U.S. 
535 (1974) govern the present case, as we submit, or are dis­
tinguishable on the facts, as respondent and the amici supporting 
him contend, the decisions undeniably rule that race- or color­
conscious state action is not unconstitutional per se. Compare 
Califano v. Webster, 97 S.Ct. 1192 (1977) (upholding a legis­
lative classification favorable to working women generally as 
appropriate to offset earlier economic discrimination).

2. The Brief for the Anti-Defamation League, et al., chal­
lenges the constitutionality of taking race into account on the basis 
of lofty abstractions; for example—-

. . . the rights of non-whites to be equal . . .
Brief at 13.

Equality denotes a relationship among those who are to be 
treated equally by the government.

Ibid.
. . . equal treatment of equals 

Id. at 15.
The Equal Protection Clause means that the constitutional 
rights of a person cannot depend upon his race . . .

Id. at 13.
We have no quarrel with these abstractions. Decision requires 

the application of such abstractions to living facts. Even identity 
of treatment sometimes is unequal. Consider the inequality pro­
duced by enrolling in the very same classes at the very same school 
both the child of an old California family and a child who grew 
up in a Chinese-speaking family in San Francisco’s Chinese com­
munity. Is this equal treatment of equals ? Cf. Lau v. Nichols, 414 
U.S. 563 (1974).

The Anti-Defamation League elsewhere suggests an acceptable 
test (Brief at 14) :

“The Equal Protection Clause commands that state govern­
ments treat persons equally unless their personal attributes 
or actions afford justification for different treatment.”

State universities serve social purposes. Places in professional



10
schools are not to be awarded as if they were prizes. Selection for 
admissions is not simply a rationing of benefits; it involves deci­
sions concerning the characteristics of the kinds of students and 
graduates of professional schools which society needs. Here, in 
today’s society, because of the past, being black, chicano, Asian or 
American Indian, is a fact and a highly relevant personal attribute. 
Race or color is relevant to educational and social policies and 
therefore to admissions, not because being black, chicano, Asian 
or American Indian is inherently better or worse, or makes one 
more deserving or less deserving than anyone else, but because 
decades of hostile discrimination, de jure as well as de facto, iso­
lated the minorities in barrios and black or yellow ghettoes and on 
Indian reservations, yielded inferior education, denied the minori­
ties access to the more rewarding occupations and thus withheld 
from succeeding generations the examples which stimulate self­
advancement. The Equal Protection Clause does not require the 
Court to blind itself to what all the world knows. These truths 
determine the current meaning of the abstract ideals.

The question therefore is whether a state may voluntarily take 
steps to eliminate the racial isolation, offset the racial deprivations 
and demonstrate that minorities once the victims of racial discrim­
ination can have equality of opportunity, so that the conditions 
resulting from the past may be eliminated and true equality more 
nearly realized.

Race is a personal characteristic relevant to the implementation 
of such measures. The Task Force program fits the test that counsel 
propose. Race will become irrelevant if the measures are permitted 
to succeed. Then, race-conscious admissions programs will no 
longer be required or justified.

3. The remaining arguments opposing any race-conscious gov­
ernment action rest chiefly upon the wooden citation or quotation 
of prior opinions condemning racial discrimination against minori­
ties. E.g., Brief for Respondent at 42-43; Brief for Anti-Defama­
tion League, et al., at 19- The absolute or virtually absolute 
constitutional rule against intentional discrimination hostile to 
minorities flows from the concurrence of vices absent from such 
cases as Williamsburgh and Mancari and also absent from the



11
instant case. Discrimination against a racial minority is less suscep­
tible of correction through the political process. United States v. 
Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); Hunter v. 
Erickson, 393 U.S. 385, 391 (1969); Ely, 'The Constitutionality of 
Reverse Discrimination, 41 U.Chi.L.Rev. 723 (1974). Hostile 
discrimination sets the minority apart from the general society 
instead of bringing its members into the mainstream—into the 
political process, as in the Williams burgh case, or into higher edu­
cation and a learned profession, as in the present case. Nearly 
always, hostile discrimination against the black, the Asian, the 
American Indian or the chicano, viewed in the background of 
American history, falsely asserts and thus reinforces a form of 
caste. None of these consequences are threatened by measures to 
offset the isolation and living inequality imposed by the past.

There is no force in the argument that admission under the 
minority admissions program imposes a stigma because it implies 
that the minority student is inherently incapable of competing 
with other applicants. The very predicate of the Task Force pro­
gram is that qualified minority students from disadvantaged back­
grounds can do medical school work successfully and can become 
as skillful and useful doctors as their contemporaries selected 
under the general admissions program. If their lower but wholly 
acceptable scores under other admissions criteria need explanation, 
they may be taken to flow not from any racial inferiority but from 
years of pervasive segregation and discrimination: from inferior 
education, denial of economic opportunity, cultural isolation and 
the deadening effect of the absence of visible evidence of opportu­
nities for advancement through the channels open to the dominant 
whites.

The differences in conventional predictors of academic success 
will not go away under respondent’s interpretation of the Equal 
Protection Clause. No one is required to request consideration 
under the Task Force program or to indicate his race. Surely it is 
less stigmatizing to be found qualified for a medical education and 
then admitted under the minority admissions procedure than it is 
to be denied admission and learn that nearly all applications from 
members of minority groups are denied.



12
III.

THE EDUCATIONAL AND SOCIAL PURPOSES TO WHICH THE 
POLICY IS TAILORED AMPLY JUSTIFY CONSCIOUSLY IN- 
CREASING THE NUMBER OF QUALIFIED APPLICANTS 
CHOSEN FROM MINORITY GROUPS.

A. A number of briefs assert, explicitly or implicitly, that the 
decision below should be affirmed because the University failed 
to prove adequately on the record that the special admissions pro­
gram was adopted to serve and does in fact serve important pub­
lic objectives. Although we would not agree that proof on the 
record is the exclusive means of establishing such objectives (see 
pp. 16-18, infra), the record puts the purposes of the program 
beyond dispute. Dean Lowrey testified (R. 65, 68-69):

*  *  *  [I]n  order to increase the number of doctors in dis­
advantaged areas, to bring diversity to the class and the pro­
fession, a special admissions program has been established 
which gives preference to applicants from disadvantaged 
backgrounds, which uses minority group status as one fac­
tor in determining relative disadvantage.

* * *

The minorities will bring with them a concern for the 
problems and needs of the disadvantaged areas from which 
they come. *  *  *  And, it is hoped that many of them will 
return to practice medicine in those areas which are pres­
ently in great need of doctors. Every applicant admitted 
under the special admissions program has expressed an in­
terest in practicing in a disadvantaged community.

Practice in disadvantaged communities by minority physi­
cians will provide an example to younger persons in these 
areas demonstrating that disadvantaged and minority per­
sons can break the cycle of hopelessness in which families 
do not improve their educational or economic status over 
generations.

The non-disadvantaged professors, students and members 
of the medical profession with whom the disadvantaged fel­
low student or doctor comes into contact will be influenced 
and enriched by that contact. *  *  *

At this point in history there can be few higher social aims than 
those attested by Dr. Lowrey. They amply justify race-conscious



13
measures well tailored to achieving them, when no other means 
are readily available, even though the race-consicious measures 
may carry some unavoidable costs.

B. It is also argued that the University failed to prove that 
the Task Force program is tailored to the objectives and necessary 
to achieve them.

Again, insofar as the record is concerned, a succinct answer is 
provided by Dr. Lowrey’s testimony that the special admissions 
program was "the only method” whereby the school could achieve 
its objectives (R. 67).

Respondent offered no contrary evidence. Our opening brief, 
the briefs of amici supporting petitioner and the voluminous litera­
ture cited, all demonstrate that minority admissions programs are 
indispensable to enabling any significant numbers of the victims of 
past racial discrimination to enter higher education and the learned 
professions. The United States has reached the same conclusion 
(Brief at 63). No one has suggested a viable alternative. Counsel 
for respondent virtually confess their inability by concluding that 
"it is not credible that so great a University . . .  if so inclined, 
would lack the ingenuity and resources to pursue new alterna­
tives. . . . ” (Resp. Br. at 16.)

In proceeding in this fashion we follow the customary practice 
in this Court. In determining the constitutionality of programs 
whose validity depends upon their functions and effects in the sur­
rounding sociological, economic or political context, the Court 
regularly looks to legislative investigations, the writings of in­
formed persons and other relevant data to which attention is di­
rected by the briefs. Any other practice would result in constant 
relitigation. The constitutionality of the same measure would 
vary according to the testimony and trial court’s findings of fact 
in each particular case.

IV.
VOLUNTARY MINORITY ADMISSIONS PROGRAMS RAISE DIF- 

FERENT CONSTITUTIONAL ISSUES FROM MANDATORY 
AFFIRMATIVE ACTION PROGRAMS OF MINORITY EM- 
PLOYMENT.

A number of amici have filed briefs linking the Task Force pro­
gram at Davis with governmentally mandated programs seeking to



14
increase the employment of black and other minority workers and 
of women. Some of these programs fix numerical "quotas” or 
"targets” for the purpose of determining whether an employer has 
taken appropriate affirmative action. Some programs appear to re­
quire an employer, at the risk of heavy liability, to steer between 
the Scylla of failure to take affirmative action and the Charybdis 
of discrimination against whites.

The constitutionality of these mandatory programs can and 
should be put aside for future determination. If the Court should 
follow the Supreme Court of California in holding that the Equal 
Protection Clause forbids a state to make race a factor in allocat­
ing its educational resources in order to achieve educational and 
social objectives, then logic may dictate the invalidity of all racially- 
conscious programs for increasing minority employment or build­
ing minority business opportunities, just as it would seem to force 
the abandonment of all programs specifically tailored to help mem­
bers of minority groups to overcome the disadvantage and isola­
tion resulting from decades of pervasive racial discrimination. But 
the converse proposition is not true. To hold that voluntary mi­
nority admissions programs are consistent with the Equal Protec­
tion Clause would not establish the validity of mandatory affirma­
tive action programs for minority employment.

The differences are two:
First, the minority admissions program was voluntarily adopted 

by the Davis faculty. To reverse the decision below would leave 
the states free, each either to set the admissions criteria for state 
institutions by legislative action or else to allow each public insti­
tution to set its own criteria according to the faculty’s choice of 
educational objectives. Insofar as private institutions are affected, 
reversal would increase the freedom and responsibility of each 
institution to make its individual choice. Contrariwise, in the area 
of industrial and commercial employment, governmental affirma­
tive action programs curtail the employer’s freedom.

The difference distinguishes the constitutional issues in a major 
respect. Even though the power of government to regulate em­
ployment practices and contracts is now well established, liberty 
is still a major element of every constitutional equation.



15
Second, even though the ultimate general aims of minority ad­

missions and government-mandated employment programs are 
similar, the two might well be found distinguishable in the rela­
tive importance of the mandated objectives, in the need for the 
program to offset the effects of previous discrimination and isola­
tion, and in the availability of other means for achieving the 
ultimate general goals.

For either reason or both, the reversal of the judgment below 
would not pre-judge the constitutionality of the employment pro­
grams to which amici such as the United States Chamber of Com­
merce object.

V.

THE CASE SHOULD NOT BE REMANDED FOR THE FINDINGS 
SUGGESTED BY THE UNITED STATES.

The undisputed facts bring the case well within the constitu­
tional principle advanced by the Brief for the United States (p. 
23): " . . .  a state university admissions program may take race 
into account to remedy the effects of societal discrimination.” There 
is neither allegation nor evidence of "racial slur or stigma,” of "a 
'contrivance to segregate’ the group,” of an “intended . . . racial 
insult or injury to those whites who are adversely affected” or of 
the "invidious purpose of discriminating against white [appli­
cants].” United Jewish Organizations of Williamshurgh, Inc. v. 
Carey, 430 U.S. 144, 165 (opinion of the Court), 172, 178 (Bren­
nan, J., concurring in part), 180 (Powell and Stewart, JJ., con­
curring) (1977). Dean Lowrey’s undisputed testimony, quoted 
above (pp. 12-13), detailed the remedial purposes and functions of 
the Task Force program. The wealth of professional opinion cited 
in our opening brief demonstrates the soundness of the profes­
sional judgments of the Davis Medical School faculty.

The United States proposes for this case—and presumably for 
every other case which a disappointed applicant may bring into a 
state or federal court—an examination into the reasons for adopt­
ing a particular program of minority admissions, and also into the 
actual operation of the program, probing even the mental processes 
of the admissions committee. The suggestion is that upon remand



16
in this case the courts below are to take evidence concerning the 
details of the use of benchmark scores; into why one non-minority 
applicant was admitted who had a lower benchmark score than 
another non-minority applicant; into the effect of the individ­
uality of the evaluators upon benchmark scores; and into " how 
race was used” (Brief at 71). The brief also implies that the state 
court is to take evidence and find as a fact whether the dean and 
faculty at Davis were right in thinking that the admission of more 
fully-qualified students from minority communities would tend to 
increase the availability and use of medical services in the com­
munities from which they were drawn ( ibid.).

The Attorney General does not state the legal significance of 
such inquiries. Apparently that is to be left undecided until every 
angle which occurs to ingenious counsel has been explored and 
new legal formulas proposed.

To follow this course would invite voluminous litigation 
throughout the country. It would put every minority admissions 
program at the hazard not only of speculative findings of fact but 
of such detailed constitutional requirements as different district 
courts might prescribe.

The longer range effects would depend upon the rules estab­
lished by this Court. We cannot discern what rules the Attorney 
General contemplates, but two intimations reveal the hazards to 
which universities might be subjected.

One of the remedial factors taken into account in establishing 
the Task Force program was the need to improve the delivery and 
use of medical services in disadvantaged minority communities. 
The Brief for the United States at 71 suggests that this objective 
may not be a legal justification, and further complains of a lack 
of evidence showing that the judgment of the dean and faculty 
upon this point is correct. Must every professional school which 
adopts a minority admissions program risk judicial inquiry and 
adverse findings upon the accuracy of such judgments and/or 
upon the weight which various members of the faculty gave to 
their own judgment in voting to increase minority admissions by 
the conscious attention to race?



17
It is also asserted that the precise manner in which race is taken 

into account in specific decisions to admit or deny individual ap­
plicants may be constitutionally decisive. There is even a hint— 
perhaps unintended2—that minority-sensitive programs must be 
confined to taking into account the effects of past discrimination 
upon the credentials presented by individual applicants; and that 
a university must ignore broader social purposes such as (1) im­
proving education by increasing the diversity of the student body, 
(2) demonstrating the opening of opportunities to members of mi­
nority communities by living examples, and (3) otherwise break­
ing down the isolation produced by generations of racial dis­
crimination. Any such effort to prescribe the exact manner or ex­
tent to which minority status may be taken into account for general 
remedial and non-invidious purposes would have disastrous con­
sequences.

There is no intellectually honest way of measuring the effects, 
if any, of minority status upon an individual minority applicant’s 
past performance in order to compare him or her individually with 
other non-minority applicants. Nor is there any measurable mean 
or average effect which could be imputed to individual members 
of minority groups. Few, if any, admissions committees could 
conscientiously assert that they had followed this process and had 
given no other attention to race. Were this the test of legality, the 
risks of litigation and adverse findings would foreclose even the 
most conscientious effort to put such a policy into effect. Deans and

2. Elsewhere the Attorney General recognizes that attention to minority 
status can be justified by the broader remedial objectives:

Moreover, this Court has recognized that "substantial benefits flow 
to both whites and blacks from interracial association 

Brief at 25.
A State therefore is free, within constitutional constraints, to under­
take remedial minority-sensitive measures that are designed, like the 
Fourteenth Amendment itself, to break down the barriers that have 
separated the races.

Id. at 37.
In searching for those applicants most likely to contribute to the 
medical profession, medical schools look . . . at . . . the extent to 
which applicants can diversify and enrich the profession.

Id. at 60.



18
teachers are well aware of, and sympathetic to, the many other 
ways in which increasing the number of qualified minority stu­
dents at graduate schools serves the goal of correcting the awful 
legacy of generations of racial discrimination. The plaintiffs’ at­
torneys could easily bring out such facts as that the program had 
been established initially with such objectives in mind, prior to 
the decision limiting the use of race; that the witness believed 
that the isolation and disadvantages flowing from past discrimi­
nation should be corrected; and that he thought the program 
would have such consequences in fact even though no applicants 
were admitted in pursuit of such objectives. No great skill in ex­
amining witnesses would then be required to cast doubt upon 
whether the beneficient but now artificially irrelevant consequences 
had been rigidly excluded from the witness’ mind in selecting 
minority applicants even as he was making a favorable adjustment 
for the adverse effects of historic discrimination upon the appli­
cant himself.

Few institutions could face the expense and risks of litigation 
turning upon such speculative factual inquiries, however deep 
their commitment to helping to fill "the need for effective social 
policies promoting racial justice in a society beset by deep-rooted 
racial inequities” ( United Jewish Organizations of Williamsburgh, 
Inc. v. Carey, 430 U.S. 144, 175 (1977) (Brennan, J., concurring 
in part) ).

No race-conscious admission program should be wholly free 
from constitutional scrutiny. ĴChen race is taken into account, the 
federal courts, upon a proper showing, have a duty to inquire ( l )  
whether the use is noninvidious, (2) whether the program was 
adopted to counter the effects of past societal discrimination and 
secure the educational, professional and social benefits of racial 
diversity, and (3) whether the program is tailored to such objec­
tives. Once these criteria are satisfied, as in the present case, the 
judicial function is discharged. The Constitution does not charge 
the federal courts with detailed supervision of the admissions 
policies and practices of state colleges and universities. Cf., Rizzo 
v. Goode, 423 U.S. 362, 380 (1976); Bishop v. Wood, 426 U.S.



19
341, 349-50 (1976); Meachum v. Fano, A ll U.S. 215, 228-29 
(1976).

To increase the enrollment of students from minority groups 
unavoidably requires departing from previous standards of com­
parison and giving attention to race. All effective minority admis­
sions programs start from this premise. In other respects, there is 
wide variation. Some faculties, having knowledge of the charac­
teristics and abilities of applicants to the particular school, have 
thought it wise to fix for the admissions committee the maximum 
number of qualified minority students to be admitted in any given 
year through special admissions programs. Others prefer to leave 
the committee a degree of flexibility. Some institutions may give 
special consideration only to the members of minority groups who 
have suffered additional personal disadvantage, as at Davis. Many 
more look only to the need for racial diversity and the benefits 
of interracial association. Some professional schools process all 
applications through a single committee. Others divide the work 
and authorize each of two, three or four committees to fill inde­
pendently a fraction of the class. Still others make a point of 
including minority members of the faculty and student body on a 
subcommittee to interview and select minority applicants, believing 
that the minority applicants can be evaluated with greater percep­
tion by those who have shared common problems and experience.3 
Everywhere admissions policies and procedures undergo constant 
study and debate. Everywhere experience brings better under­
standing.

This Court should not shut off the study, debate and experi­
mentation by undertaking to prescribe, upon further findings, a 
detailed set of constitutional rules. "One of the great virtues of 
federalism is the opportunity it affords for experimentation and 
innovation, with freedom to discard or amend that which proves 
unsuccessful or detrimental to the public good.” Bates v. State

3. The California Supreme Court erred in stating that the faculty 
members of the Task Force subcommittee were "predominantly” minorities 
(Pet. App. at 6a). In fact, as the record clearly shows, four of the six 
faculty members and the one administration member of the subcommittee 
for the class entering in 1973 were non-minorities. All student members 
were minorities (R. 251-52).



20
Bar of Arizona, 97 S.Ct. 2691, 2718-19 (1977) (Powell, J ,  
dissenting). The reminder has special pertinence in dealing with 
the "myriad of 'intractable economic, social, and even philosoph­
ical problems’ ” which education presents. San Antonio School 
District v. Rodriguez, 411 U.S. 1, 42 (1973). Few of these are as 
perplexing or as sensitive as the task of selecting from a large 
pool of thoroughly qualified applicants the relatively small num­
ber of students whom the institution has the resources to teach. 
None is as intractable as the problem of relieving the deeply- 
ingrained obstacles which history has put in the way of minorities’ 
enjoyment of access to higher education and the opportunities to 
which it leads. Yet there is no escape from the necessity of pursu­
ing the goal with minds open to the growing understanding about 
means which comes from trial and experience. Anything less would 
impair the search for truly equal opportunity for all men and 
women promised by the Equal Protection Clause of the Fourteenth 
Amendment and given renewed force by this Court in Brown v. 
Board of Education.

CONCLUSION
For the reasons stated in petitioner’s opening brief and this 

reply brief the judgment of the Supreme Court of California 
should be reversed.

Respectfully submitted,

A r c h ib a ld  C o x  
Langdell Hall 
Cambridge, MASS 02138

D o n a l d  L. R eid h a a r  
590 University Hall 
Berkeley, CA 94720

Counsel for Petitioner
P a u l  J .  M is h k in  

J a c k  B. O w e n s

Of Counsel on the Reply Brief