District of Columbia v. John R. Thompson Company Motion for Leave to File Brief as Amicus Curiae

    JAMES M. NABRTT, lit 
ASSOCIATE-COUNSEL

I n  t h e

Olourt of tin United Btutm
October Term, 1976

No. 76-811

T h e  R egents  oe t h e  U n iv ersity  of Ca lifo rn ia ,
Petitioner,

A llan  B a k k e ,
Respondent.

On Writ of Certiorari to the 
Supreme Court of California

BRIEF OF COLUMBIA UNIVERSITY, HARVARD 
UNIVERSITY, STANFORD UNIVERSITY 

AND THE UNIVERSITY OF PENNSYLVANIA 
AS AMICI CURIAE

C h arles  J .  M eyers 
A lbert  M . S acks 
M ic h a e l  I .  S overn

Of Counsel 

June 7,1977

J o h n  M ason H arding

A lbert  J .  R o sen th a l  
Columbia University- 
New York, N. Y. 10027

D a n ie l  S t e in e r

Harvard University 
Cambridge, MA. 02138

I r is  B rest

J am es V . S ie n a

Stanford University 
Stanford, CA. 94305

Louis H. P ollak

The University of Pennsylvania 
Philadelphia, PA. 19104

Counsel for Amici Curiae



TABLE OF CONTENTS

P age

I n ter est  oe t h e  A m ic i C u r i a e .............................................  1

S um m a ry  oe A r g u m en t  .........................................................  8

A r g u m e n t  .....................................................................................  11

I. The Inclusion of Qualified Minority Group Mem­
bers in a Student Body Serves Important Educa­
tional Objectives ..............................................  11

II. Unless Race May Be Considered in Admissions 
Decisions, Selective Institutions Will Not Be 
Able to Achieve Adequately Diverse Student 
Bodies While Maintaining Other Significant 
Educational Values ........................................... 14

A. Minority Status Must Be Considered Inde­
pendently of Economic or Cultural Depriva­
tion ..............................................................  17

B. Use of a Racially Neutral Standard of “ Dis­
advantage” Would Reduce the Number of 
Minority Matriculants ................................  18

C. Other Alternatives Suggested by the Su­
preme Court of California Would Also Be In­
effective .......................................................  22

III. The Judgment of the Supreme Court of Califor­
nia Should Be Reversed.................................... 24

C on clu sio n  ...................................................................................  39

Appendix 1



11

TABLE OF AUTHORITIES

Cases: P age

Alevy v. Downstate Medical Center, 39 N.Y. 326, 348 
N.E. 2d 537, 384 N.Y.S. 2d 82 (1976).....................  34

Associated General Contractors of Massachusetts v. 
Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, denied,
416 TJ.S. 957 (1974) ..............................................  29

Bakke v. Regents of the University of California, 18
Cal. 3d 34, 553 P.2d 1152,132 Cal. Rptr. 680 (1976) 19

Borden’s Farm Products Co. v. Baldwin, 293 U.S.
194 (1934) ............................................................. 37

Brown v. Board of Education, 347 U.S. 483 (1954) 30
Califano v. Webster, 97 S. Ct. 1192 (1977) ............  29
Carterv. Gallagher,452P.2d327 (8th Cir.) (enbanc), 

cert, denied, 406 U.S. 950 (1972) ........................... 28
Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924) 33, 37
Chicago & Grand Trunk By. v. Wellman, 143 U.S.

339 (1892) ............................................................  37
City of Hammond v. Schaffi Bus Line, 275 U.S. 164

(1927) .................................................................... 37
Contractors Ass’n of Eastern Pennsylvania v. Secre­

tary of Labor, 442 F.2d 159 (3d Cir.), cert, denied,
404 U.S. 854 (1971) ..............................................  28

Craig v. Boren, 429 U.S. 190 (1976)........................... 34
Dandridge v. Williams, 397 U.S. 471 (1970) ............  34
Hamilton v. Regents of University of California, 293 

U.S. 245 (1934) .....................................................  26
Kahn v. Shevin, 416 U.S. 351 (1974) .......................  29
Massachusetts Board of Retirement v. Murqia, 427 

U.S. 307 (1976) .................................................... 35
McLaurin v. Oklahoma, 339 U.S. 637 (1950) ............  13



Ill

P age

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

Morales v. New York, 396 U.S. 102 (1969)................
Morton v. Mancari, 417 U.S. 535 (1974) ..................
Naim v. Naim, 350 U.S. 891 (1955) .........................
North Carolina State Board of Education v. Swann, 

402 U.S. 43 (1971)..................................................
Oregon v. Mitchell, 400 U.S. 112 (1970)...................
Polk Co. v. Glover, 305 U.S. 5 (1938) .......................
Rescue Army v. Municipal Court, 331 U.S. 549 (1947)
San Antonio Independent School District v, Rodri­

guez, 411 U.S. 1 (1973) .........................................

Schlesinger v. Ballard, 419 U.S. 498 (1975) ............
South Carolina v. Katsenbach, 383 U.S. 301 (1966)
Swann v. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971) .........................................
Sweatt v. Painter, 339 U.S. 629 (1950) ....................
Sweezy v. New Hampshire, 354 U.S. 234 (1957).......

25
37
29
37

28
35
37
37

10, 31, 
34,35

29
31

28, 32
25

10,
25, 26

Trustees of Dartmouth College v. Woodward, 4 
Wheat. 518 (1819) ....................................... . 26

United Jewish Organizations of Williamsburgh, Inc. 
v. Carey, 97 S. Ct. 996 (1977)................................  28,

29,30
United States v. Carolene Products Co., 304 U.S.

144 (1938) ............................................................  10,
34, 35

United States v. Wood, Wire & Metal Lathers Local 
46, 471 F.2d 408 (2d Cir.), cert, denied, 412 U.S. 
939 (1973) ............................................................ 28



Statutes:
42 U.S.C. §1981 (1970) . . 
42 U.S.C. §2000 (d) (1970)

iv

P age

6
5

Miscellaneous:

Atelsek & Gomberg, Bachelors Degrees Aivarded to 
Minority Students, 1973-1974 (Higher Education 
Panel Eeports, No. 24, American Council on Educa­
tion 1977) ..............................................................  21

Brief for the Deans of the California Law Schools in 
Favor of the Petition for Certiorari.................... 33

Brown, Minority Enrollment and Representation in 
Institutions of Higher Education (Ford Founda­
tion Report by Urban Ed., Inc. 1974) ...................  21,

28, 34
Brown & Stent, Black College Undergraduates, En­

rollment and Earned Degrees, 6 J. Black Stud. 5 
(1975) .................................................................... 21

B. Caress & J. Kossy, The Myth of Reverse Discrimi­
nation: Declining Minority Enrollment in New 
York City’s Medical Schools (Health Policy Advi­
sory Center Inc. 1977) ..........................................

A. Carlson & C. Werts, Relationships Among Law 
School Predictors, Law School Performance, and 
Bar Examination Results (E.T.S. 1976) ..............  22

Educational Testing Service, Graduate and Profes­
sional School Opportunities for Minority Students 
(6th ed. 1975-77) ...................................................  21,34

Frankfurter, A Note on Advisory Opinions, 37 Harv.
L. Rev. 1002 (1924)................................................ 38

Gunther, In Search of Evolving Doctrine on a Chang­
ing Court: A Model for a Newer Equal Protection,
86 Harv. L. Rev. 1 (1972) .....................................  34

20, 
23, 28



V

P age

Hutchins, Reitman, & Klaub, Minorities, Manpower, 
and Medicine, 42 J. Med. Educ. 809 (1967)............  3

Knauss, Developing a Representative Legal Profes­
sion, 62 A.B.A. J. 591 (1976) ................................  21

Law School Admission Council, Law School Admis­
sion Bulletin 1976-1977 (E.T.S.) ..........................  22

M. Miskel, Minority Student Enrollment, Research 
Currents, Nov. 1973 (ERIC Clearing House on 
Higher Education)................................................  20

Monaghan, Constitutional Adjudication: The Who 
and When, 82 Yale L.J. 1363 (1973).....................  38

C. Odegaard, Minorities in Medicine: From Recep­
tive Passivity to Positive Action (1977)................ 3,

20,  21
Overbea, Why Statistics of Growth Don’t Tell Every­

thing About Blades’ Enrollment in College, Chris­
tian Science Monitor, March 21,1977 ...................  21

Poliak, Securing Liberty Through Litigation—The 
Proper Role of the United States Supreme Court,
36 Mod. L. Rev. 113 (1973) ................................. 38

Sandalow, Racial Preferences in Higher Education: 
Political Responsibility and the Judicial Role, 42 
IT. Chi. L. Rev. 653 (1975).....................................  19

Transcript of Argument, United Jewish Organisa­
tions of Williamsburgh, Inc. v. Carey, 97 S. Ct. 996 
(1977) .................................................................... 29

H.S. Bureau of Census, Statistical Abstract of the 
United States (1974) ............................................  19

J .  Wellington & P. Gyorffy, Report of Survey and 
Evaluation of Equal Education Opportunity in 
Health Profession Schools (San Francisco: Uni­
versity of California 1975)...............................   21



I n  t h e

g’ttjtrme dour! nf %  Initefc B u t  zb

October Term, 1976

No. 76-811

T h e  R eg en ts  of t h e  U niv ersity  of Ca lifo rn ia ,

P etitioner ,
X T  7

A llan  B a k k e ,
Respondent.

On Writ of Certiorari to the 
Supreme Court of California

BRIEF OF COLUMBIA UNIVERSITY, HARVARD 
UNIVERSITY, STANFORD UNIVERSITY 

AND THE UNIVERSITY OF PENNSYLVANIA 
AS AMICI CURIAE

INTEREST OF THE AMICI CURIAE

The institutions on whose behalf this brief is submitted 
are private universities of a particular kind. They are in­
stitutions which differ in geography and history, in size, in 
resources, and in structure; but they are united by a prin­
ciple which transcends their differences—namely, that the 
governing standard for establishing and maintaining class-



2

room and research functions alike is, not quantity or multi­
plicity, but excellence. Underlying this principle is the 
conviction that a university’s highest function is to give 
people of great talent and motivation the opportunity to 
participate, as students and as teachers, in rigorous in­
tellectual training and equally rigorous intellectual inquiry 
—and thereby simultaneously to enlarge today’s corpus 
of knowledge and creative works, and to develop tomor­
row’s cohorts of physicians and poets, physicists and plan­
ners, philosophers and politicians.

In pursuing this function and these goals, colleges and 
universities, with rare exceptions, historically have been 
accorded freedom from external influence and intrusion. 
Our society has recognized that higher education can 
flourish only so long as educators have substantial inde­
pendence to formulate and implement the policies by which 
it is transmitted.1 This freedom is not unfettered, and it 
entails an equal measure of responsibility. When, however, 
the problem is central to the educational process as is the 
determination of the qualifications of students, when edu­
cators are searching in good faith for solutions, and when 
applicable legal norms are in doubt, we believe that the 
cause of education, and hence the welfare of our society, 
are best served by judicial restraint.

Un our view, it does not matter for the resolution of the issues 
in this case whether the Regents and officers of the University of 
California take a major part in shaping the admissions policies of 
particular schools or delegate effective authority to the faculties of the 
several schools. But we would advise the Court that in our institu­
tions faculties have the dominant role in shaping admissions policies. 
This brief speaks for our institutions as such—not for faculty mem­
bers collectively or individually. Among other things, we seek in 
this brief to preserve the substantial independence of our faculties, 
including the freedom to adopt admissions policies different from 
those we here defend. (Four of the lawyers whose names appear on 
this brief are deans of the law schools of the amici institutions, and 
as such have some oversight responsibility for admissions processes; 
however, they sign this brief not in their decanal capacities, nor as 
representatives of their faculties, but as individual lawyers.)



Up to about a decade ago, it was the fact (not designedly, 
but the fact nonetheless) that the student bodies of the 
amici institutions were overwhelmingly white,2 and their 
faculties almost exclusively so. Belatedly, these institutions 
•—like many other colleges and universities—recognized 
that they were disserving their educational goals in two 
important ways: (1) By not enrolling minority students 
in significant numbers, the amici were continuing to deny 
intellectual house room, to a broad spectrum of diverse 
cultural insights, thereby perpetuating a sort of white 
myopia among students and faculty in many academic dis­
ciplines—most particularly the professions, the social sci­
ences and the humanities. (2) The amici were doing next to 
nothing to enlarge the minute minority fraction (no more 
than 1% in many fields) of the pool of persons with doc­
toral-level graduate and professional training—the pool 
from which the amici and comparable institutions draw 
their faculties, and also the pool from which, increasingly, 
local and national leaders in the public and private sectors 
tend to be selected.

2The amici institutions were not unique in this regard. As of the 
academic year 1955-56, there were only 761 black medical students 
in the country. This figure rose slightly, to 771, by the 1961-62 
academic year, but declined to 715 in 1963. Hutchins, Reitman & 
Klaub, Minorities, Manpower, and Medicine, 42 J. Med. Educ. 809 
(1967).

The entering class in medical schools for 1968-69 contained 266 
black students, or 2.7% of the total first year enrollment; 3 Native 
Americans, or 0.03%; 20 Mexican Americans, or 0.2%; and 3 Puerto 
Rican students, or 0.03%. The 2.7% figure for blacks, small as it 
is, is somewhat misleading, since fully half of these students were 
enrolled at the predominantly black institutions of Howard and 
Meharry. Thus, at any particular predominantly white institution, 
the actual percentage of black students was likely to be significantly 
smaller. Association of American Medical Colleges enrollment data, 
cited in C. Odegaard, Minorities in Medicine: From Receptive Pas­
sivity to Positive Action 28-29 (Josiah Macy, Jr. Foundation 1977).



4

It was to alleviate these serious educational deficiencies 
in their training and research programs that the amici (and 
numerous other colleges and universities) developed ad­
missions programs designed to increase minority enroll­
ment. Intensive recruitment of minority applicants could 
not of itself begin to insure a genuinely diverse student 
body in institutions as selective as the amici institutions. 
Most of the schools in these institutions are highly selec­
tive—i.e., there are so many more applicants than places 
available; and, more important, the number of applicants 
with a high probability of successful or indeed distin­
guished academic performance so greatly exceeds the avail­
able spaces—that admissions decisions based on racially 
neutral criteria, which take no account of the educational 
deficit under which America’s non-whites have labored 
throughout our history, would not yield a large enough 
number of minority students to achieve substantial di­
versity. Thus, in choosing among a large number of clearly 
qualified candidates for admission, these schools are seek­
ing to achieve their educational goals through conscious 
treatment of an applicant’s membership in a minority 
racial group as a favorable factor in the consideration of 
his application.8 The judgment and opinion of the Cali­
fornia Supreme Court put the attainment of these goals in 
jeopardy:

1. The narrow issue for decision in the instant case is 
whether the medical school of a state university may not 
only accord favorable consideration to minority applicants

3“ Racial group” and similar phrases are not used in this brief 
with any pretense of scientific accuracy. When we refer to a racial 
minority such as blacks we mean a group that is perceived as ‘ ‘ black ’ ’ 
by most Americans, and has suffered various forms of discrimination 
and been isolated to some degree from social and cultural contact with 
white Americans as a conseqence. In particular, no genetic connota­
tions are intended. A large number of American blacks have some 
white ancestors. Similar observations are appropriate with respect 
to references to other racial minorities in this brief.



but for this purpose may also establish a special admissions 
program limited to disadvantaged members of minority 
racial groups, with the earmarking of 16 places in an enter­
ing class of 100 for persons selected through that special 
program. The decision of this Court may apply narrowly 
only to a program of the precise kind employed at the 
Medical School of the University of California at Davis. 
But the implications of an affirmance of the decision of 
the Supreme Court of California may threaten many other 
more flexible types of admissions programs at the amici 
institutions and similar colleges and universities. The 
threat is perceived as especially serious in light of many 
of the contentions and observations expressed in the ma­
jority opinion of the California Supreme Court.

2. While the instant case involves a state university, 
we are apprehensive that a judgment of affirmance by this 
Court would threaten the continuation by private universi­
ties of admissions policies that they believe to be educa­
tionally vital.

a) Private as well as public universities have various 
relationships, financial and otherwise, with federal and state 
agencies. The standards for determining whether a given 
degree of governmental involvement is sufficient to render 
the Fourteenth Amendment applicable to otherwise private 
activity have been pieced out by this Court on a case-by-case 
basis. While courts have generally declined to apply the 
Amendment to private universities, we cannot be certain 
as to the ultimate disposition of this question.

b) A decision of this Court holding the admissions 
program at Davis unconstitutional under the Fourteenth 
Amendment might influence the construction of statutory 
prohibitions against discrimination to which some or all 
of the amici might be subject. These include Title VI of the 
Civil Bights Act of 1964, 42 U.S.C. § 2000 (d) (1970), for­
bidding discrimination in any program receiving federal



6

financial assistance; 42 U.S.C. § 1981 (1970), prohibiting 
some forms of discrimination in willingness to enter into 
contracts, including contracts to provide education; and a 
number of state and local laws forbidding racial and other 
discrimination in admissions by educational institutions.

3. Even if private universities are not legally con­
strained in their freedom to pursue admissions policies that 
they deem educationally most sound, they will be harmed 
if public universities are denied similar freedom. Diversity 
in background, including race, within faculties is important, 
enriching the interchange of ideas and offering role models 
to minority students. The pool of outstanding scholars and 
teachers from which faculties are selected is fed by gradu­
ates of both private and state universities. To dry up a 
major potential source of minority faculty members— 
minority applicants not admitted to state institutions be­
cause their exceptional talents had not yet manifested 
themselves when they applied for admission—would make 
achievement of the faculty recruitment objectives of all 
universities more difficult.

4. If state universities are forbidden to consider race 
in admissions, private universities, even if free of similar 
legal constraints, would face uncomfortable choices. It 
might be felt that programs held by this Court to violate 
the Fourteenth Amendment if undertaken by state schools 
could not be pursued in good conscience by private univer­
sities. Others might argue that pluralism in American so­
ciety is sufficiently important that, so long as their actions 
were not illegal, private universities should feel free to 
adhere to their principles without regard to what might or 
might not be permissible for state universities. A third point 
of view might be that private universities should attempt 
vastly to increase the number of minority students in order 
to compensate for the restrictions imposed upon state uni­
versities. We would greatly prefer to reach decisions on



7

admissions solely on educational considerations, undis­
tracted by a debate likely to be divisive and destructive.

We hope that our experience and perspectives may be of 
assistance to tbe Court in its treatment of tbe difficult ques­
tions raised by tbis case.

Tbe following private universities have indicated their 
general support for tbe arguments advanced in tbis brief 
and join the amici in urging reversal of the judgment of 
the California Supreme Court:

Brown University 
Duke University 
Georgetown University 
Massachusetts Institute of Technology 
University of Notre Dame 
Vanderbilt University 
Villanova University



SUMMARY OF ARGUMENT

I.

When a university must choose among many more quali­
fied applicants for admission than it can accept, choices are 
made on the basis of educational objectives. Expected aca­
demic performance is a significant criterion but only one 
of several. There are important educational values in hav­
ing a student body with diverse interests and backgrounds. 
Such factors as extra-curricular activities, employment 
experience, and geographical distribution have tradition­
ally been taken into account, because a student body with 
varied backgrounds and interests provides the most stimu­
lating intellectual environment.

For the same reason, many universities regard member­
ship in a minority race as a favorable factor to be con­
sidered along with others in deciding whom to admit. The 
differences in experience that arise out of growing up 
black, or Chicano', or Puerto Rican, or Native American, 
enable students who are members of those groups to intro­
duce into the university community important perceptions 
and understandings. An educational process enriched in 
this way is not only of great importance to students: it 
broadens the perspectives of teachers and thus tends to ex­
pand the reach of the curriculum and the range of the 
scholarly interests of the faculty.

Furthermore, by making conscious efforts to include 
more minority students in their undergraduate and pro­
fessional programs, universities are better performing the 
function of providing tomorrow’s leaders in all walks of 
life. If our pluralistic society is to achieve its objective of 
increasing the number of minority doctors, judges, corpo­
rate executives, university faculty members and govern­
ment officials, universities must make available to qualified 
minority students the opportunity to gain the necessary 
education.



9

II.

The Supreme Court of California appears to acknowl­
edge the constitutional propriety of selecting a racially 
diverse student body. But the court has held that this 
permissible end must be sought without taking race into 
account—an anomalous circuity insisted upon in the belief, 
unsupported by the record, that racially random processes 
would somehow produce a student body of sufficient racial 
diversity.

We appreciate the concerns which underlie the Cali­
fornia court’s reluctance to sanction racially defined pro­
cesses. But we disagree with the California court’s con­
jecture—and it is only conjecture, flatly contradicted by 
the only testimony of record—that universities can achieve 
racially diverse student bodies without taking into account 
the race of those applying for admission. Our institutions’ 
experience confirms that the substitute devices suggested 
by the California court are incapable of fulfilling this con­
stitutionally legitimate objective.

The principal alternative suggested was the establish­
ment. of a larger program for the admission of the “ dis­
advantaged,” regardless of race. But disadvantage— 
whether predicated on cultural or economic criteria—is not 
synonymous with membership in an ethnic minority. While 
a disproportionate number of minority groiip members is 
disadvantaged, most of the disadvantaged in this country 
are white. To be sure, programs according favorable treat­
ment to disadvantaged applicants may also serve important 
educational purposes. If honestly administered, however, 
and if disadvantage is not treated merely as a euphemism 
for race, a program for the disadvantaged in lieu of a 
program of similar scope for minorities would sharply 
reduce the admission of minority applicants. In order to 
ensure adequate representation of minority students, the 
number of disadvantaged students admitted would have to



10

be so increased that the very diversity we are trying to 
achieve would be destroyed, critical educational goals and 
standards would be endangered, and the capacities of finan­
cial aid programs for students would be overwhelmed.

Other alternatives propounded by the Supreme Court of 
California would also he ineffective. Total abandonment 
of attention to grade point averages and test scores would 
deprive us of tools that are valuable in screening appli­
cants and in comparing applicants of similar backgrounds; 
in their absence the process of selection would he far more 
difficult and undoubtedly less effective. The alternative of 
quickly enlarging or adding to the number of medical 
schools (or other graduate or undergraduate schools) is 
politically and fiscally incredible and educationally un­
sound; moreover, while it would presumably increase the 
total number of minority students admitted it would not 
enlarge their proportion in any school or class and thus 
would not achieve the educational values afforded by di­
versity in students’ racial backgrounds.

in.

Favorable treatment of minority group members in 
university admissions is sharply different from discrimina­
tion against minorities. It is in no way invidious, nor does 
it work to the disadvantage of groups unable to protect 
themselves in the political process. See San Antonio Inde­
pendent School District v. Rodrigues, 411 U.S. 1, 28 (1973) ; 
United States v. Carotene Products Co., 304 U.S. 144, 152- 
53 n. 4 (1938).

Educational policy is an area traditionally accorded, 
and particularly appropriate for, judicial restraint. See
San Antonio Independent School District v. Rodrigues, 411 
U.S. at 42-43; Sweezy v. New Hampshire, 354 U.S. 234, 263 
(1957) (concurring opinion). Needs and goals, as reflected



11

in admissions policies, vary from university to university 
and among different schools in the same university. Educa­
tors need substantial freedom to search for better solutions 
to difficult educational problems, freedom denied by the kind 
of judicial intervention practiced by the Supreme Court of 
California.

Constitutional questions—particularly those of great 
moment, as in the instant case—should not be decided in 
the abstract but only in the context of a full factual record. 
There was no such record in this case. The decision of the 
California Supreme Court was based on assumptions of 
fact not put to proof. On what that court thought to be the 
critical issue, the availability of less restrictive alternative 
means to attain concededly valid goals, its decision was 
predicated solely on its own conjectures and ignored un- 
contradieted testimony in the record to the contrary. The 
decision of an important constitutional question involving- 
momentous issues of educational policy should rest on 
firmer foundations.

ARGUMENT

I. The Inclusion o f Qualified M inority Group M embers in a 
Student Body Serves Im portant Educational Objectives.

At our institutions, as at many others, there are far 
more applicants for admission than there are places in the 
entering classes. The large majority of applicants are fully 
qualified, as indicated by factors such as their grade point 
averages and test scores, to perform successfully the aca­
demic work that would be required of them should they 
be admitted. The most difficult task of the admissions com­
mittees is, therefore, to select from among these “ qualified” 
applicants those who will be admitted.

In making this selection, colleges and universities can 
apply a wide variety of criteria that will vary from in-



12

stitution to institution and even among schools within a 
university. The choice of criteria will depend upon educa­
tional objectives. In our institutions, particularly in the 
selection of undergraduates, diversity in the student body 
has been an important educational objective. In addition to 
predicted academic performance, factors believed to con­
tribute to diversity and strength of a student body, such 
as geographical distribution, employment experience, musi­
cal skills, extracurricular activities and travel, are all re­
garded as legitimate and relevant, and usually taken into 
account without controversy.4

Academic ability has not, therefore, been the sole cri­
terion for selecting students at our institutions. In choos­
ing among applicants qualified to do the academic work, 
factors other than predicted academic performance may 
well be determinative in reaching admissions decisions. 
The ultimate question is which candidates from among the 
“ qualified” pool will contribute most, in the context of an 
entire class, to the achievement of the institution’s educa­
tional objectives.5

A policy of increasing the number of students from 
minority groups is, in our judgment, the best choice for all 
of our students because it is the best way to achieve a di­
verse student body. A primary value of liberal education

4Although some of our professional schools give great weight to 
predicted academic performance and hence relatively less weight 
than our undergraduate and other professional schools to the other 
factors mentioned here, even in those schools elements of diversity 
may he decisive in a limited but significant number of eases.

5Set forth in the Appendix to this brief is a description of the 
criteria applied in selecting students for admission to Harvard 
College, the rationale for the choice of these criteria, and some indica­
tion of the relative weight given to different criteria, including 
minority status, in particular admissions decisions. This description 
applies generally to the selection of undergraduates at the other three 
amici institutions.



13

should be exposure to new and provocative points of view, 
at a time in the student’s life when be or she has recently 
left home and is eager for new intellectual experiences. 
Minority students add such points of view, both in the class­
room and in the larger university community.

Just as diversity makes the university a better learning 
environment for the student, so it makes the university a 
better learning environment for the faculty member. The 
university’s encouragement of variety in ideas is, to the 
scholar, a most appealing aspect of academic life. It has 
been the experience of many university teachers that the 
insights provided by the participation of minority students 
enrich the curriculum, broaden the teachers ’ scholarly inter­
ests, and protect them from insensitivity to minority per­
spectives. Teachers have come to count on the participa­
tion of those students. Indeed, present faculty support for 
admissions of more minority students stems in part from 
an appreciation for past contributions, and from loyalty 
to friendships with particular individual students whom 
teachers might otherwise never have come to know.

Finally, there is an additional, related, yet independ­
ently compelling, educational purpose served by enlarging 
the universe of highly trained minority persons—namely, 
diversifying the leadership of our pluralistic society. The 
training of leaders has been a traditional and fundamental 
educational responsibility and one which, with the matur­
ing of our society, rests with special weight on colleges and 
universities. As Chief Justice Vinson stated for this Court 
in McLaurin v. Oklahoma, 339 IT.S. 637, 641 (1950), striking 
down arbitrary constraints on a black graduate student’s 
free interchange with white fellow students:

Our society grows increasingly complex, and our
need for trained leaders increases correspondingly.
Appellant’s case represents, perhaps, the epitome of



14

that need, for he is attempting to obtain an advanced 
degree in education, to become, by definition, a leader 
and trainer of others. Those who will come under Ms 
guidance and influence must be directly affected by the 
education he receives.

Today American colleges and universities are taking im­
portant steps to meet the “ need for trained leaders” iden­
tified by this Court twenty-seven years ago. It would be 
quixotic—and tragic—for this Court now to find that the 
Constitution prevents academic institutions from taking 
those steps necessary and proper to fulfillment of an edu­
cational responsibility so vital to the welfare of the nation.

By our admissions programs, we are not merely con­
tributing to the cause of increasing the numbers of minority 
leaders and public servants—although of course we wish 
very much to do that. We are also broadening the percep­
tions of our majority students, and we believe that this 
will be reflected in qualities that they will retain for the 
rest of their lives. A central function of the teacher is to 
sow the seeds for the next generation of intellectual leaders, 
and this, indeed, is a main reason why many university 
instructors find that an ethnically diverse student body 
helps them to fulfill their teaching roles. In short, we hope 
that by these efforts, the leadership of the next generation—- 
majority and minority members alike—will be the better, 
the wiser and the more understanding.

II. Unless Race May Be Considered in Admissions Decisions, 
Selective Institutions W ill Not Be Able to Achieve Ade­
quately Diverse Student Bodies W hile Maintaining Other 
Significant Educational Values.

The educational goals discussed above cannot be rea­
lized by any racially neutral procedure known to us. The 
problem, as we have previously noted, is simply this. Se­
lective institutions such as ours receive applications from



15

many more persons than they have room for.6 Some of 
those applicants are plainly not qualified for admission. 
That is, it cannot he predicted with confidence by looking 
at their test scores and prior academic performance that 
they will survive in, much less contribute to, the academic 
course they wish to pursue. Others, few in number, are so 
exceptional, by reference to test scores, grades and prior 
achievement, that their admission is a virtual certainty.

What remains then, from the original pool of applicants,

8For example, the number of applicants and matriculants at the 
medical schools of the amici institutions for the classes entering in 
1973-1976 were as follows:
1973 Applicants Matriculants

Columbia....................................  3,789 147
Harvard ....................................  3,045 168
S tan fo rd ....................................  4,131 89
Pennsylvania ............................  3,898 160

1974
Columbia....................................  4,458 147
Harvard ....................................  3,258 165
S tan fo rd .................................... 4,553 94
Pennsylvania ............................  4,124 160

1975
Columbia....................................  5,042 147
Harvard ....................................  3,210 165
S tan fo rd ....................................  4,662 86
Pennsylvania............................  4,895 160

1976
Columbia..................................  4,927 148
Harvard ....................................  3,670 168
S tan fo rd .................................  5,117 86
Pennsylvania ............................  5,246 160



16

is a large number of applicants, still much larger than 
the number of available spaces, who can, on the basis of 
relevant predictors, successfully complete the academic 
course of their choice. It is from this number that the 
balance of the entering class must be selected.

The unfortunate fact of life in this country is that appli­
cants who are members of minority groups tend, as a gen­
eral matter, not to score as well as whites on the standard­
ized tests to which reference is made in the admissions 
process. We think it unnecessary to labor here the reasons 
for this phenomenon. The educational deprivations which 
minorities have suffered in this country are well known to 
the Court.

Choosing from among the many who are qualified in 
order to achieve, among other things, the racial and ethnic 
diversity so important to our institutions, cannot be left 
to chance. There are many ways to achieve diversity, per­
haps as many as there are institutions and schools within 
institutions which seek such diversity. It is, however, es­
sential to any program designed to serve this end that race 
be specifically considered in choosing a student body.

The California Supreme Court chose to ignore the in­
formed views of the educators and suggested instead its 
own strategies to reach what it conceded were legitimate 
ends. Most prominently, it suggested that colleges and 
universities accord preferential treatment to the “ disad­
vantaged.” It also suggested as possible approaches more 
aggressive recruiting, the abandonment of reference to 
test scores and grade point averages, and finally, the ex­
pansion of the size or number of educational institutions. 
As we attempt to demonstrate below, these suggestions will 
not work. If selective colleges and universities are forbid­
den to give weight to the fact that an applicant is a member 
of a racial minority group, there will almost certainly be an 
abrupt decline in minority enrollments.



17

A. M inority Status Must Be Considered Independently of Eco­
nomic or Cultural Deprivation.

The California Supreme Court has expressed the view 
that the Davis Medical School’s present efforts to achieve 
a racially mixed class are unconstitutional because there is 
a less restrictive alternative—namely, admitting a larger 
number of disadvantaged students without regard to their 
race. However, criteria based on disadvantage which take 
no account of race are useful only as a supplement to, and 
not a substitute for, criteria based on race.

The California court does not define the term “ disad­
vantage” explicitly, but it apparently intends to refer 
to the Davis criteria having to do with the occupational 
background and education of the student’s parents and 
the family’s financial situation. But being disadvantaged 
is not synonymous with being black, or Chicano, or Puerto 
Rican, or Native American. While disproportionate num­
bers of minority group members are economically disad­
vantaged, the minority experience is distinct from the ex­
perience of proverty. Growing up black—even middle-class 
black—involves a whole range of different encounters, 
perceptions, and reactions. To educate all students to deal 
with the problems of the society that we have, rather than 
the one we would like to have, we need the contribution of 
those whose lives have been different because their race is 
different.7 Indeed, our institutional needs for diversity 
would be inadequately met if our minority students included 
only those from depressed socioeconomic backgrounds.

7Minority students who are also poor are, in effect, doubly disad­
vantaged. For, paradoxically, membership in a racial minority can 
be considered a disadvantage in itself, even while it is a special 
cultural and social experience which enriches minority individuals 
and the university communities of which they become part. The 
prevalent stereotyping of minority group membei’s, which can under­
mine their academic aspirations and achievements early in life, and 
the calamitous psychological effects of the continued de facto segre­
gation of grade and high schools in this country, suggests that minor­
ity applicants should receive particularly careful consideration quite 
apart from any economic deprivation.



18

Moreover, since admissions programs that take account 
of race many have other purposes than, or in addition to, 
increasing the number of disadvantaged students, disad­
vantage alone does not go far enough. We have noted that 
disadvantage is not synonymous with membership in an 
ethnic minority for the purpose of achieving our shared 
goal of diversity in our student bodies. In addition, it 
takes no cognizance of the purpose, to which many colleges 
and universities subscribe, of providing minority youth with 
role models, and it does not provide for the benefits only 
minorities can bring to a profession. Insofar as admissions 
programs are designed to improve society in any of these 
ways, racially neutral criteria are beside the point.

The avowed end of the Davis Medical School is to in­
crease the number of disadvantaged minority students in 
its classes and not merely to adjust applicants’ test scores 
to reflect better their purely academic qualifications. The 
California Supreme Court assumes the constitutionality of 
this end, but holds that the Medical School is constitution­
ally prohibited from achieving it candidly; the court implies 
instead that universities can bring minority admissions to 
approximately the level they desire by adjusting the im­
portance attached to various non-racial criteria which are 
currently used, or might be used, in the admissions process. 
We respectfully submit that this suggestion is based on 
ignorance of the fact that adjustments honestly applied 
cannot go far enough to accomplish concededly legitimate 
purposes without endangering other critical institutional 
goals. Alternatively, it is an invitation to colleges and uni­
versities to do covertly what they have been forbidden to do 
openly.

B. Use of a Racially Neutral Standard of “Disadvantage” 
W ould Reduce the Number of M inority Matriculants.

Use of a racially neutral standard of disadvantage, as 
urged by the California court, would reduce the number



19

of places open to minority applicants for admission to 
American colleges and universities. This is so because 
most Americans who are disadvantaged—most of the poor 
and the culturally deprived—are white.8 Once a color-blind 
preference for the disadvantaged was implemented white 
students not currently applying to selective institutions 
because of the unlikelihood of admission would presumably 
apply, and qualify for admission, in much greater numbers. 
If a preference for the disadvantaged were applied hon­
estly, and not as a euphemism for a preference for minority 
group members, the number of minority applicants ad­
mitted would drop off sharply.

Theoretically, the number of disadvantaged admitted 
could be increased, with the hope than an adequate number 
of minority members would be picked up in the process. 
It is difficult to calculate how large a fraction of each class 
would have to be earmarked for the disadvantaged in order 
to bring in a sufficient number of minority students to 
achieve the goal of diversity, but in some schools it might 
well absorb the entire class. A significant increase in the 
number of spaces reserved for disadvantaged students 
would almost surely endanger other critical educational 
goals and standards. Moreover, there would be no way for 
universities to support large numbers of disadvantaged 
students through financial aid.9 The school would thus be

8In 1972, of a total of 24.5 million persons who were below the 
poverty level established by the United States government, 16.2 
million were white. U.S. Bureau of Census, Statistical Abstract of the 
United States 389, Table No. 631 (1974). See also Sandalow, Racial 
Preferences in Higher Education: Political Responsibility and the 
Judicial Role, 42 U. Chi. L. Bev. 653, 690 (1975).

9This difficulty was noted in the dissenting opinion of the Cali­
fornia Supreme Court. Bakke v. Regents of the Univ. of Gal., 18 Cal. 
3d 34, 90, 553 P.2d 1152, 1190, 132 Cal. Bptr. 680, 718 (1976). See 
also Sandalow, supra note 8, at 691.

The author of one study concludes that, due to the difficulties 
minority students face in integrating themselves into a culturally



20

forced to choose between grossly inadequate aid for every­
one admitted under the program—a rather hollow offer of 
admission—or reserving to some portion of the disadvan­
taged admittees a subsistence level of support, an effective 
exclusion of most of the recruited students. And even if 
sufficient financial aid were available, the very diversity 
sought to be achieved would be defeated—all for the sake 
of complying with the apparent conclusion of the California 
Supreme Court that it is proper for an educational institu­
tion to take measures for the purpose of increasing minor­
ity admissions as long as it uses indirect means to do so.

“ Seeking out” disadvantaged students of high poten­
tial, as suggested by the Supreme Court of California, 
might increase slightly the number of such minority persons 
who apply. Again, unless the search were part of a program 
that included favorable weight to minority status, the end 
result would be an increase in white, not black or Chicano, 
admissions.10 The California court seems unaware of the 
fact that vigorous efforts to identify and recruit talented 
minority students have been made by almost all selective 
schools for about a decade and that more intensified efforts

alien environment, financial burdens fall more heavily on them than 
on their economically disadvantaged majority counterparts. M. 
Miskel, Minority Student Enrollment, Research Currents, Nov. 1973, 
at 3 (ERIC Clearing House on Higher Education). See also C. Ode- 
gaard, Minorities in Medicine: From Receptive Passivity to Positive 
Action 63-65 (Josiah Macy, Jr. Foundation 1977). Ironically, the 
pressure to increase special admissions to include all economically 
disadvantaged comes just at a time when general economic condi­
tions and decreased government spending threaten even the limited 
programs presently in existence. B. Caress & J. Kossy, The Myth of 
Reverse Discrimination: Declining Minority Enrollment in New 
York City’s Medical Schools 6 (Health Policy Advisory Center, 
Inc. 1977). A related problem is the cost of providing remedial edu­
cation for admitted students with deprived educational backgrounds. 
Odegaard, supra at 126.

10The same would be true of the court’s proposal that remedial 
schooling be provided for disadvantaged students of all races.



21

are not likely to have muck incremental effect.11 Indeed, 
after a certain point the process tends to become a com­
petitive one in which a number of schools all attempt to 
woo the most promising minority students, rather than add­
ing substantially to the pool of such students to be consid­
ered for admission.12 Even when combined with vigorous 
reci’uitment efforts, consideration of disadvantage is no 
answer to the problems the Davis admissions program 
sought to solve. Moreover, it seems likely to us that this 
alternative, like most of the others suggested by the Cali-

1:lEvery one of the 89 medical schools sampled in one survey under­
taken for the Department of Health, Education and Welfare engaged 
in minority recruitment activities. J. Wellington & P. Gyorffy, Report 
of Survey and Evaluation of Equal Education Opportunity in 
Health Profession Schools (San Francisco: University of California 
1975), quoted in C. Odegaard, Minorities in Medicine: From Recep­
tive Passivity to Positive Action 99 (Josiah Macy, Jr. Foundation 
1977). In addition, the American Association of Medical Colleges 
has since 1970 administered a Medical Minority Applicant Registry 
to assist schools in their recruitment efforts. Odegaard, supra, at 108. 
Similar programs exist to assist minority students’ entrance into 
college.

One reason that increased recruitment is not likely to have much 
effect is that proportionately fewer blacks and other minority group 
members graduate from four-year colleges of the sort that have 
traditionally supplied medical schools. Relatively large numbers 
are concentrated in two-year community colleges. Overbea, Why 
Statistics of Growth Don’t Tell Everything about Blacks’ Enroll­
ment in College, Christian Science Monitor, March 21, 1977, at 26, 
col. 1; Brown & Stent, Black College Undergraduates, Enrollment 
and, Earned Degrees, 6 J. Black Stud. 5,10 (1975). In addition, with 
the exception of Asian-Americans, fewer graduate in fields such as 
biochemistry and life sciences, which provide the background neces­
sary for medical school. Educational Testing Service, Graduate 
and Professional School Opportunities for Minority Students 4 (6th 
ed. 1975-77, Princeton); Atelsek & Gomberg, Bachelors Degrees 
Awarded to Minority Students, 1973-1974, at 8 (Higher Educ. Panel 
Rep., No. 24, American Council on Education, January 1977).

12See C. Odegaard, Minorities in Medicine: From Receptive Pas­
sivity to Positive Action 100 (Josiah Macy, Jr. Foundation 1977); 
Knauss, Developing a Representative Legal Profession, 62 A.B.A.
J. 591, 593 (May 1976).



22

fornia Supreme Court, which are discussed below, would, 
if implemented, diminish the number of spaces available to 
respondent and to others similarly situated.
C. Other Alternatives Suggested by the Suprem e Court of Cali­
fornia W ould Also Be Ineffective.

The other alternatives suggested by the California Su­
preme Court have even less potential. One suggestion 
was to dispense with numerical criteria completely, and 
abandon use of test scores and grade point averages. How­
ever, with all of their shortcomings, these yardsticks are 
not irrelevant: when used with restraint and discretion we 
have found them valuable tools in measuring the probable 
academic performance of applicants.13 Test scores and 
grade point averages help to define the universe of those 
qualified to do creditable and rewarding work in highly 
selective academic institutions, and they furnish clues as 
to those individuals among' the qualified group who will 
gain the most from, and contribute the most to, academic 
opportunities which must be rationed among a limited num­
ber. That is the substantial utility of these numerical in­
dicators.14

Total abandonment of numerical standards would result 
in giving too much weight to such subjective and manipu- 
lable factors as personal recommendations and statements 
of career goals; for some it would constitute an invitation 
to invidious discrimination. Academic quality would un­
doubtedly deteriorate, yet without any assurance that an 
adequate level of minority admissions could be maintained.

iaSee, e.g., A. Carlson & C. Werts, Relationships Among Law 
School Predictors, Laiv School Performance and Bar Examination 
Results (E.T.S. 1976); Law School Admission Council, Law School 
Admission Bulletin 1976-1977 (E.T.S.).

14-VVe think it appropriate to add that we know of no empirical 
demonstration that there is a direct correlation, although our intui­
tion suggests that there is a correlation, between academic perform­
ance at such institutions and ultimate career “ success,” however 
success may be defined.



23

Finally, from a purely administrative point of view, even 
well-endowed colleges and universities such as amici can ill 
afford the substantial diversion of resources to vastly en­
larged admissions staffs which abandonment of numerical 
admissions criteria would require, at least when the benefits 
are so doubtful and the economic horizon is so bleak.

The Supreme Court of California also suggests that a 
less restrictive means for enlarging minority admissions 
would be to increase the size or number of medical schools. 
It seems unrealistic in the extreme to assume that there 
would or could be a nationwide or statewide jump in the 
number of selective schools, medical or otherwise, or in the 
size of those existing. Quite apart from the staggering 
costs involved, new institutions of outstanding quality 
cannot be l'olled off an assembly line overnight, nor can 
existing schools be dramatically expanded in size without 
severe adverse effects on instruction and scholarship. More­
over, if America’s enormous and growing investment in 
higher education is to continue to be responsibly adminis­
tered, the aggregate number of persons trained in medicine 
and other disciplines must turn on the nation’s aggregate 
needs. In contrast, the California court’s casual approach 
would require a major reallocation of resources not to train 
needed professionals but to accommodate those large num­
bers of disadvantaged persons only a fraction of whom 
would constitute the minority student population whose 
advanced training is of priority educational importance.15

In short, the less restrictive means for increasing minor­
ity admissions that the Supreme Court of California said

1BIn recent years, for example, first year enrollment in U.S. medi­
cal schools increased from 10,422 in 1969 to 15,295 in 1975—an in­
crease of almost one half. In spite of vigorous recruitment efforts and 
minority admissions programs, only 890 of the 4,873 added positions 
went to minority students. B. Caress & J. Kossy, The Myth of Reverse 
Discrimination: Declining Minority Enrollment in New York City’s 
Medical Schools 5 (Health Policy Advisory Center, Inc. 1977).



24

were available, and on the basis of wbicb it held the pro­
gram at Davis unconstitutional, seem to us, on examination, 
illusory. Unlike our present admissions systems, which 
preserve the dual goals of diversity and academic achieve­
ment, each would fail either to enroll minority students in 
sufficient numbers or to maintain our present standards 
of excellence—or both. At least, most educators so con­
clude. The contrary view of the California court rests, we 
respectfully submit, on judicial conjecture—certainly not 
on facts of record, nor on inferences properly drawn from 
patterns of university experience of which a court might 
reasonably take judicial notice.

The only evidence in the record on the subject was the 
uncontradicted declaration of Dr. George H. Lowery, Asso­
ciate Dean and Chairman of the Admissions Committee at 
Davis Medical School, that his “ experience as Chairman 
of the Admissions Committee has convinced [him] that 
there would be few, if any, Black students and few Mexican- 
Americans, Indians, or Orientals from disadvantaged back­
grounds in the Davis Medical School, or any other medical 
school, if the special admissions program and similar pro­
grams at other schools did not exist.” (R. 67-68).

The experience of our own institutions both reinforces 
the judgment of Dr. Lowery that programs taking minor­
ity status into account in admissions are necessary, and 
suggests that the alternatives posited by the Supreme Court 
of California are entirely unrealistic.

III. The Judgment of the Suprem e Court of California Should
Be Reversed.

The guiding principle of freedom under which American 
colleges and universities have grown to greatness is that 
these institutions are expected to assume and exercise



25

responsibility for the shaping of academic policy without 
extramural intervention. A subordinate corollary princi­
ple-critical for this case—is that deciding who shall be 
selected for admission to degree candidacy is an integral 
aspect of academic policy-making. The linked principles 
emerge clearly from the moving manifesto—relied upon 
by Mr. Justice Frankfurter twenty years ago—of distin­
guished educators who were vainly seeking to preserve 
their country’s vanishing academic freedom, to wit, the 
embattled senior scholars of the University of Cape Town 
and the University of Witwatersrand:

. . .  It is the business of a university to provide that 
atmosphere which is most conducive to speculation, 
experiment and creation. It is an atmosphere in which 
there prevail “ the four essential freedoms” of a uni­
versity—to determine for itself on academic grounds 
who may teach, what may be taught, how it shall be 
taught, and who may be admitted to study.16

The fact that academic institutions are within the ambit of 
the First Amendment does not mean that they are immune 
from the law’s norms. Indeed, when academic institutions 
have pursued admissions policies the antithesis of the policy 
challenged here, this Court has properly brought them to 
book. Sweatt v. Painter, 339 U.S. 629 (1950) ; Missouri ex 
rel. Gaines v. Canada, 305 U.S. 337 (1938). But the 
rarity of instances of judicial intervention in academic 
affairs proves the rule that governmental displacement of 
the authority of those primarily vested with academic 
responsibility is contrary to our traditions. Were it other­
wise, as Mr. Webster put it in the memorable argument

16Quoted by the Justice in his concurring opinion in Sweezy v. New 
Hampshire, 354 U.S. 234, 263 (1957), in which Mr. Justice Harlan 
joined.



26

which prevailed in this Court in the Dartmouth College 
case,17

learned men will be deterred from devoting themselves 
to the service of such institutions, from the precarious 
title of their offices. Colleges and halls will be deserted 
by all better spirits, and become a theater for the con­
tention of politics. Party and faction will be cherished 
in the places consecrated to piety and learning. These 
consequences are neither remote nor possible only. They 
are certain and immediate.

Nor are the principles of academic freedom protective only 
of private institutions, such as the amici. These principles 
likewise safeguard the integrity of public institutions, wffien 
they or those who are their members are threatened by 
unwarranted external intrusions. See Sweezy v. New 
Hampshire, 354 U.S. 234, 262-63 (1957); of. Hamilton v. 
Regents of University of California, 293 U.S. 245 (1934).

In undertaking to circumscribe the informed and good 
faith discretion of those vested with authority to determine 
the admissions policies of the Medical School of the Uni­
versity of California at Davis, the California Supreme 
Court has trenched upon the freedom of that School to 
determine for itself crucial questions of academic policy. 
Moreover, this judicial intrusion has been based upon a con­
stitutional ruling which, with all respect, we believe to be pal­
pably inadequate to the several substantial issues presented 
by this litigation. As we have argued above, we think that 
implementation of the California Supreme Court’s judg­
ment will predictably preclude the achievement in this cen­
tury of educational goals of great moment to which hun­
dreds of American colleges and universities are committed.

17Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 599 
(1819).



27

We argue below that the court’s explanation of its judg­
ment is doctrinally unpersuasive.

As we have demonstrated, the admissions process has 
never been entirely impersonal, quantifiable, or “ objec­
tive.” What distinguishes this case from all the non-cases 
that have seldom been thought worth litigating is that the 
additional element taken into account here is race.

Special treatment based on race touches sensitive nerves. 
But the reason for this is the long tragic history of attention 
to race for the purpose of discriminating against blacks 
and other minorities. The problem of admissions programs 
designed to augment the number of minority students in­
volves delicate issues.18 But it is not the same as discrim­
ination against minorities, and no amount of rhetoric can 
make it the same.

The purpose of the special treatment of minorities in 
university admissions, at Davis as elsewhere, is not to dis­
criminate against majority applicants. Indeed, the purpose 
is not only or even primarily to confer benefits upon mem­
bers of minorities; where the principal goals are to improve 
the quality of teaching and learning for majority as well as

18The special admissions program at Davis set aside 16 places in 
a class of 100 for disadvantaged members of minority groups. Al­
though we question the wisdom of this aspect of the Davis program, 
we are not persuaded that such a program is unconstitutional. The 
choice at Davis was only among, and the designated spaces would 
only be filled by, qualified applicants, and the percentage of places 
earmarked for minority members was smaller than their share of the 
state’s population; in this context, designation of a precise number 
of places may be a reasonable way of ensuring that enough minority 
applicants are admitted to provide sufficient diversity in the student 
body.

If, nevertheless, the procedure at Davis should be held uncon­
stitutional, we would urge the Court to limit its decision to that 
particular technique and to the facts and circumstances pertaining 
at Davis rather than cast into doubt the wide variety of other more 
flexible approaches designed to produce truly diverse student bodies.



28

minority students and to diversify this nation’s leadership, 
the fact that there may be a consequential difference in the 
effect on different races does not constitute invidious or 
stigmatic discrimination.19

The use of race as a touchstone for governmental action 
has been upheld in a number of contexts. Racial residential 
patterns may, and indeed in some cases must, be considered 
in the assignment of students to schools20 and in the use of 
such remedial measures as busing.21 The use of similar data 
in delineating legislative districts has also been upheld.22 
Specific attention to race has been permitted, and often 
required, to achieve equality in employment opportunity.23 
As stated by the United States Court of Appeals for the

,9In fact, a recent study points out that in every year subsequent 
to adoption of minority admissions policies by medical schools, the 
number of spaces available for white applicants has increased. The 
reason cited is an overall expansion of medical enrollments, of which 
nonminority students have been the overwhelming beneficiaries. 
Thus, while “ [a] persistent rumor, abetted by recent reverse discrim­
ination law suits, holds that middle class sons cannot get into medical 
school because of preferential treatment accorded minority appli­
cants . . .  [t]he facts simply do not support the case.” B. Caress & J. 
Kossy, The Myth of Reverse Discrimination: Declining Minority 
Enrollment in New York City’s Medical Schools 1 (Health Policy 
Advisory Center, Inc. 1977).

A similar situation exists in undergraduate admissions, where 
minority gains have not kept pace with the increase in white enroll­
ment. Brown, Minority Enrollment and Representation in Institu­
tions of Higher Education 2 (Ford Foundation Report by Urban Ed 
Inc. 1974). ’

20E.g., Swann v. Charlotte-MecMenburg Bd. of Educ., 402 U.S. 1, 
29-31 (1971); North Carolina State Bd. of Educ. v. Swann 402 
U.S.43 (1971).

21E.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 
(1971).

22United Jewish Organizations of Williamsburgh, Inc. v Carev 97 
S.Ct. 996 (1977).

2SE.g.. United States v. Wood, Wire & Metal Lathers Local 
46, 471 F.2d 408 (2d Cir.), cert, denied, 412 U.S. 939 (1973) • 
Carter v. Gallagher, 452 F.2d 327 (8th Cir.) (en banc), cert, denied, 
406 U.S. 950 (1972); Contractors Ass’n of E. Pa. v. Secretary of 
Labor, 442 F.2d 159 (3d Cir.), cert, denied, 404 U.S. 854 (1971).



29

First Circuit, “ our society cannot be completely color­
blind in the short term if we are to have a colorblind society 
in the long term.”24 And this Court has unanimously sus­
tained a systematic official preference for tribal Native 
Americans in the allocation of employment opportunities 
in the Bureau of Indian Affairs. Morton v. Mancari, 417 
U.S. 535 (1974). The unique history and constitutional 
status of Native Americans, of which this Court properly 
took account in that case, are surely no more compelling 
than the unique history and constitutional status of those 
for whom the Civil War Amendments were written and 
ratified.

Analogies may also be found in areas other than race, 
such as sex discrimination, where this Court has upheld 
favorable treatment of a class because it had previously 
been discriminated against. Califano v. Webster, 97 S. Ct. 
1192 (1977); Schlesinger v. Ballard, 419 U.S. 498 (1975); 
Kahn v. Shevin, 416 U.S. 351 (1974).

In these cases and others, the courts have shown under­
standing of the difficulties of legislators and administrators 
faced with the problems of the real America of today with 
all its blemishes, rather than conjuring up rules for the 
ideal, prejudice-free, society that we hope to attain. This 
Court was certainly not cheered by its knowledge, in United 
Jewish Organisations of Williamsburgh, Inc. v. Carey, 97
S. Ct. 996 (1977), that voters tend to choose candidates of 
their own races, but it recognized the significance of this 
fact in upholding the legislative districting there chal­
lenged.26

24A ssocia ted  Gen. C ontractors o f Mass. v. A ltsh u le r , 490 F.2d 9, 
16 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974).

26In W illiam sburgh , counsel for petitioner, on oral argument, 
challenged racial delineation of legislative districts in the following 
terms: “ Race is not part of the political process. Race is an imper­
missible standard__” T ra n scrip t o f A rg u m e n t, at 33. Mr. Robert H.
Bork, the then Solicitor General, responded: ‘ ‘ And I was astounded



30

Interestingly, the Supreme Court of California seems 
to accept at least some of these realities. It assumed argu­
endo that admitting a significant number of minority stu­
dents served a compelling state interest. Unfortunately, 
it then embarked on a dead-ended detour in which it con­
tended that the Medical School at Davis should have 
achieved its purpose of increasing the number of minority 
students through the use of devices that purported to be 
doing something else (and which, as shown above, would 
have been ineffective, disingenuous, or both).

It has been the experience of the amici, as we believe 
it has been that of most educational institutions, that the 
remedies for the problems resulting from a long history 
of racial discrimination are elusive. The hopes induced by 
Brown v. Board of Education26 in 1954, that within a gen­
eration racial inequalities in educational opportunity and 
achievement would be eradicated, have not been realized. 
Universities need some elbow-room in which to experiment 
in their quest for solutions. This Court recognized the in­
tractability of the problem of preventing racial discrimina­
tion in voting when it upheld the use of extraordinary

when Mr. Lewin said that race is not a part of our political process. 
Race has been the political issue in this country since it was founded. 
And we may regret that that is a political reality, but it is a reality, 
th a t’s what the Fifteenth Amendment is about, what the Civil War 
was about, i t ’s what the Constitution was in part about, and i t ’s a 
subject we struggle with politically today. ’ ’ Id., at 62.

We recognize, and indeed we are profoundly sympathetic with, 
the concerns underlying the Chief Justice’s dissent, and Mr. Justice 
Brennan’s concurrence, in Williamshurgh. We believe that the 
limited use of race for which we here contend is respectful of those 
concerns. Race is, as Mr. Bork argued, “ a reality” which is central 
to our history. Avoidance of reality is not conducive to sound con­
struction of the Constitution. What the Constitution requires is 
that majorities not use their power to injure or degrade minorities. 
That constitutional infirmity does not inhere in this case.

26347 IJ.S. 483 (1954).



31

measures to cope with it in South Carolina v. Katzenbach.-7 
A  similar response is urgently needed here.

This case would seem to be particularly appropriate for 
the exercise of judicial restraint. The policy questions are 
difficult, and conscientious educators are dealing with them 
to the best of their abilities, undoubtedly making mistakes 
but learning as they do, always with the goal of improving 
the instructional and scholarly quality of their institutions. 
Presumptions of constitutionality, which should always 
weigh heavily with this Court, are reinforced by consider­
ations of federalism where states are severally striving for 
answers, and further reinforced where the Court is being 
asked to substitute its judgment for that of educators.

In San Antonio Independent School District v. Rodriguez, 
411 U.S. 1, 42 (1973), educational policy was described as 
an “ area in which this Court’s lack of specialized knowledge 
and experience counsels against premature interference 
with the informed judgments made at state and local levels. 
Education, perhaps even more than welfare assistance, 
presents a myriad of ‘intractable economic, social, and even 
philosophical problems.’ ” The problems of racial ine­
quality involved in the instant ease are certainly no less 
intractable than those of financial inequality that the Court 
was considering in Rodrigues. Equally applicable here is 
the Court’s further statement in Rodriguez (Id. at 43) :

The ultimate wisdom as to these and related problems 
of education is not likely to be divined for all time even 
by the scholars who now so earnestly debate the issues. 
In such circumstances, the judiciary is well advised to 
refrain from imposing on the States inflexible constitu­
tional restraints that could circumscribe or handicap 
the continued research and experimentation so vital to 
finding even partial solutions to educational problems 
and to keeping abreast of ever-changing conditions.

27383 U.S. 301 (1966).



32

In Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 16 (1971), this Court declared:

School authorities are traditionally charged with 
broad power to formulate and implement educational 
policy and might well conclude, for example, that in 
order to prepare students to live in a pluralistic society 
each school should have a prescribed ratio of Negro to 
white students reflecting the proportion for the district 
as a whole. To do this as an educational policy is 
within the broad discretionary powers of school 
authorities . . . .

Is such discretion appropriate only for elementary and 
high school authorities, but barred to educators at colleges 
and graduate schools ?

The educational and other values relevant to admissions 
policy vary from state to state, from university to uni­
versity, and even among schools in the same university. 
For example, a liberal arts college or a law school, where 
a large measure of verbal interchange among students is 
vital to the educational process, might attach more im­
portance to diversification of background among the student 
body than would an engineering school. A Hispanic lan­
guage background might be more important in terms of 
post-graduation community service in law or medicine than 
in fields in which oral communication is less important. 
Such questions of educational policy are therefore neces­
sarily difficult, complex, and inherently not susceptible of 
simple answers universally applicable. Educators need to 
be free to make decisions reflecting their professional judg­
ments concerning these values, not subject to the restraints 
of a judicially imposed strait jacket.28

28As universities, and particularly private universities, we have 
focused principally in this amicus brief upon the educational values 
upon which our admissions policies are predicated. But we do not 
wish thereby to be perceived as disparaging additional reasons on the



33

One of the very purposes of taking minority status into 
account in admissions programs is to speed the time when 
that is no longer necessary, when applicants from all races 
and ethnic groups will have overcome the handicaps of 
previous generations of prejudice and will be able to com­
pete for admission to selective educational institutions on 
terms nearly enough equal that special efforts will not be 
needed in order to acquire sufficiently diverse and repre­
sentative student bodies. When the time comes, programs 
like that at Davis and other programs, both similar and 
distinguishable, all over the country will presumably be 
terminated. If not, when the need for such programs has 
ended, this Court can take a fresh look at them. That 
which is constitutional now may cease to be constitutional 
then, if facts and circumstances have changed. E.g., 
Chastleton Corf. v. Sinclair, 264 U.S. 543 (1924).

There are hopeful signs that the problem may be tem­
porary. In recent years, Japanese-Americans have had 
sufficiently high grades and test scores that at some institu­
tions the need for their inclusion in special admissions pro­
grams is no longer necessary. The same may be true with 
respect to Chinese-Americans.29

We do not know how much vitality remains in the 
approach, until recently followed by this Court, of dividing

basis of which other institutions find further justification for such 
policies.

For example, while we have not based our argument upon the 
need for ensuring that professional services be made fully and effec­
tively available to minority communities, such concerns would seem 
to be entirely appropriate for a state government, and thus for that 
state’s universities.

29For example, in 1975 the law school of the University of Cali­
fornia at Berkeley eliminated Japanese-American participation in 
its special admissions program and reduced participation of Chinese- 
Americans in light of the success of these groups in gaining admis­
sion through the regular admissions process. Brief for the Deans 
of the California Law Schools in Favor of the Petition for Certiorari, 
at 25 n. 8.



34

equal protection cases into two sharply separated cate­
gories;30 in one, a measure was held valid if it had any 
rational relationship to a legitimate state objective, while in 
the other a compelling state interest had to he shown. In 
the latter situation, a corollary was that the challenged 
program would be invalid if its purposes could be achieved 
by less restrictive means.

Cases applying the more stringent standard where racial 
discrimination was involved have been cases in which the 
discrimination was against minorities.31 As noted in this 
Court’s seminal Carolene Products footnote, while there is 
normally a heavy presumption that governmental action is 
constitutional, “ prejudice against discrete and insular mi-

in  college enrollment Asian-Americans are already more than 
proportionately represented, Brown, M in o rity  E n ro llm e n t and  R e p ­
resen ta tion  in  In s titu tio n s  o f H ig h er E d u ca tio n  2 (Ford Foundation 
Report by Urban Ed., Inc. 1974), particularly in physical and life 
sciences. Educational Testing Service, G raduate and  P rofessional 
School O pportun ities  fo r  M in o rity  S tu d e n ts  4 (6th ed. 1975-77, 
Princeton). I t  is therefore unlikely that special admission policies 
will be necessary in the future, at least for medical schools.

30See, e.g., Craig  v. B oren , 429 U.S. 190 (1976), at 210-11 (Powell, 
J., concurring), and at 211-12 (Stevens, J., concurring); S a n  A n ­
tonio In d . School D ist. v. R odriguez, 411 U.S. 1, 98-99 (1973) (Mar­
shall, J., dissenting); D andridge  v. W illiam s, 397 U.S. 471, 520-21 
(1970) (Marshall J., dissenting); See also A le v y  v. D ow nsta te M ed­
ical C enter, 39 N.Y. 2d 326, 348 N.E.2d 537, 384 N.Y.S.2d 82 (1976); 
Gunther, I n  Search o f E v o lv in g  D octrine on a C hanging C ourt:  
A  M odel fo r  a N ew er E q u a l P ro tection , 86 Harv. L. Rev. 1, 17-48 
(1972).

31 We recognize that admissions programs designed to include mi­
norities can theoretically be applied to so many minority groups that 
their cumulative effect might truly be deemed exclusionary towards 
the white majority, or towards some ethnic sub-groups within that 
majority. If  and when that happens, this Court can deal with it; it 
has always been capable of recognizing and dealing with differences 
of degree. But the reservation of 16 places out of 100 at Davis for 
minorities cannot fairly be thought to be exclusionary of majorities, 
and any comparison to the quotas once imposed upon Jewish appli- 
cants at some schools is clearly hyperbole. Horror cases can be dealt 
with if they ever arise. Conjuring them up is scarcely a contribution 
to the analysis of sharply different situations.



35

norities may be a special condition, which tends seriously 
to curtail the operation of those political processes ordi­
narily to be relied upon to protect minorities, and which 
may call for a correspondingly more searching judicial 
inquiry.” 32 The distinction strongly suggests that the 
normal presumption of constitutionality should be applied 
to measures such as favorable consideration of minority 
status in state university admissions, since the majority 
has available the political strength with which to protect 
itself if it regards its interests as threatened.

Certainly, those applicants assertedly discriminated 
against at Davis were a class no less amorphous and 
politically no less powerful than the complainants in San 
Antonio Independent School District v. Rodrigues, 411 
IT.S. 1, 28 (1973) (footnote omitted), concerning whom this 
Court stated:

However described, it is clear that appellees’ suit 
asks this Court to extend its most exacting scrutiny to 
review a system that allegedly discriminates against a 
large, diverse, and amorphous class, unified only by the 
common factor of residence in districts that happen to 
have less taxable wealth than other districts. The system 
of alleged discrimination and the class it defines have 
none of the traditional indicia of suspectness: the class 
is not saddled with such disabilities, or subjected to such 
a history of purposeful unequal treatment, or relegated 
to such a position of political powerlessness as to com­
mand extraordinary protection from the majoritarian 
political process.83

82U nited  S ta tes  v. Carotene P roducts Co., 304 U.S. 144, 152 n.4 
(1938).

83Compare the refusal to treat 18- to 20-year olds as a “ discrete 
and insular minority” in Oregon  v. M itchell, 400 U.S. 112, 295 n.14, 
296 (1970) (Opinion of Mr. justice Stewart, concurred in by Chief 
Justice Burger and by Mr. Justice Blackmun). As to those over 50, 
see M assachusetts B d . o f R e tire m e n t  v. M urgia , 427 U.S. 307 (1976).



36

But whether or not, in a conventional equal protection 
context, there is one standard for judging, or two, or more, 
the question remains whether, in a case such as the instant 
one—in which the attention to race was not invidious, and 
was beneficial rather than harmful to minorities—it was 
even constitutionally relevant to inquire whether alterna­
tive, non-racially defined, means of achieving the state’s 
benign purposes could be devised. And, if so, should the 
university have had imposed upon it the burden of proof 
that there were no less restrictive alternatives that were 
feasible—and imposed only on appeal, with the university 
being accorded no opportunity to return to the trial court 
to introduce evidence on the point!

We think the foregoing questions should be answered 
in the negative. However they are answered, there remain 
serious problems concerning the types of procedures ap­
propriate for deciding difficult constitutional questions. 
Should the California Supreme Court have made its own 
findings, not based upon anything in evidence, that there 
were such alternatives? Finally, and most importantly, 
should this Court let stand a decision, predicated entirely on 
conjecture, on a constitutional question of great importance 
—especially where there is every reason to believe that the 
facts necessary to test (and, we submit, disprove) the 
feasibility of the state court’s hypothetical alternatives are 
available and could be adduced at a trial!

This case was decided by the Supreme Court of Cali­
fornia upon a record almost devoid of relevant evidence. 
Apart from the pleadings, the record consisted principally 
of a declaration under oath of Associate Dean Lowery, and 
Dr. Lowery’s deposition taken by plaintiff’s attorney. In 
particular, on those issues crucial to the decision of the 
court below—the feasibility of other means, not race- 
oriented, for accomplishing the University’s goals—the 
only evidence was that of Dr. Lowery, and its substance 
was that there existed no such means. Although uncontra-



37

dieted, it was disregarded by the Supreme Court of Cali­
fornia, which reached its own conclusions presumably on 
the basis of its own assumed expertise.

In short, one of the most serious constitutional issues 
of this era is now before this Court on a record that offers 
no factual basis upon which the conclusions of the Cali­
fornia court can be sustained. Whether or not it is ap­
propriate under California procedural doctrines to hold 
that the burden of proof is on the state to show that there 
are no less drastic means for accomplishing its ends, a 
decision by this Court on a vital constitutional issue should 
not rest upon the niceties of pleading or the vicissitudes of 
burden of proof.

Perhaps in a lawsuit involving nothing more than the 
conflicting claims of private parties it is proper that deci­
sions be based upon such factors. This is not such a 
case. In a long line of decisions, this Coux*t has refused 
to decide questions of constitutionality in the abstract, 
without the experience and knowledge that would be added 
by a full factual record. Especially where facts critical to 
the determination of a constitutional issue were not in 
evidence but merely presumed on the basis of pleadings, 
stipulations, or motions to dismiss or for summary judg­
ment, the Court has remanded so that evidence might be 
taken.84

3iE.g., M orales v. N ew  Y o rk , 396 U.S. 102 (1969); Nairn v. N aim , 
350 U.S. 891 (1955); P olk  Co. v. Glover, 305 U.S. 5 (1938); B o rd e n ’s 
F a rm  P roducts Co. v. Bold,win, 293 U.S. 194 (1934); C ity  o f H am ­
m ond  v. Schaffi B u s  L ine , 275 U.S. 164 (1927); C hastleton C ory. v. 
S incla ir, 264 U.S. 543 (1924); cf. Rescue A r m y  v. M unicipa l C ourt, 
331 U.S. 549, 568-76 (1947); Chicago & G rand T ru n k  R y .  v. W ell­
m an, 143 U.S. 339, 346 (1892).

If this Court were to think that remand is appropriate in this case, 
the am ici institutions would be willing to furnish facts from 
their own experience in amplification of the record in such fashion 
as may be proper under California procedure.



38

As stated by then Professor Frankfurter in A Note on 
Advisory Opinions, 37 Harv. L. Kev. 1002, 1004-05 (1924) : 
“ Concepts like ‘liberty’ and ‘due process’ are too vague 
in themselves to solve issues. They derive meaning only 
if referred to adequate human facts. Facts and facts again 
are decisive.” The same can surely be said of concepts like 
“ equal protection,” “ compelling state interest,” or “ less 
restrictive means.”85

85“ The nature of the ‘compelling state interest’ standard” was 
specifically referred to as an example of a constitutional area in which 
facts are vital, in Monaghan, C onstitu tiona l A d ju d ic a tio n : T he  
W ho and  W hen , 82 Yale L. J. 1363, 1372 (1 9 7 3 ). “ In our country 
we have made our wager on a Constitution and a Court. When the 
Court attends with care to the facts of the controversy before it, and 
develops the constitutional issues as they arise from those facts, the 
great principles of liberty are advanced.” Poliak, Securing  L ib e r ty  
T hrough  L itig a tio n — T he P roper Bole o f the  U n ited  S ta te s  Suprem e  
C ourt, 36 Mod. L. Rev. 1 1 3 ,1 2 7  (1 9 7 3 ).



39

CONCLUSION

As Mr. Webster advised this Court in tbe Dartmouth 
College case: “ The case before tbe Court is not of ordi­
nary importance, nor of everyday occurrence. It affects 
not this college only, but every college.. . . ” 4 Wheat, at 
599. This case is one in which the California Supreme 
Court has sought to displace the traditional authority of 
university faculties, officers, and trustees, who according 
to our traditions have primary responsibility to determine 
academic policy. The case is one in which the California 
court has placed the Fourteenth Amendment athwart the 
path belatedly opened by America’s academic institutions 
to the very groups to whom the Amendment promised 
citizenship and equality. The case is one in which the 
California court has sought to soften its untoward invo­
cation of the Amendment by opining (contrary to the 
record, and contrary to the clear consensus of responsible 
university officials) the availability of alternate paths which 
are, we submit, illusory.

If this Court concludes that the case turns on the reality 
vel non of the alternate paths conjured up by the Cali­
fornia Supreme Court, remand for further fact-finding is 
in order. If however, the Court shares the conviction of the 
amici that the California Supreme Court erred as to the 
law and ignored facts which are patent and decisive, it is



40

clear that the judgment of the California Supreme Court 
should be reversed.

C h arles  J. M eyers 
A lbert  M. S acks 
M ic h a e l  I. S overn

Respectfully submitted,

J o h n  M ason H arding

A lbert  J. R o sen th a l  
Columbia University 
New York, N. Y. 10027

D a n ie l  S t e in e r

Harvard University 
Cambridge, MA. 02138

I r is  B rest

J am es Y. S ie n a

Stanford University 
Stanford, CA. 94305

L o u is  H. PoLLAK
The University of Pennsylvania 
Philadelphia, PA. 19104

Of Counsel Counsel for Amici Curiae*

June 7,1977

#The substantial contributions to this brief of Ms. R. Lea Bril- 
mayer, Associate in Law at Columbia University Law School, are 
gratefully acknowledged.



APPENDIX
Harvard College Admissions Program

For the past 30 years Harvard College has received each 
year applications for admission that greatly exceed the num­
ber of places in the freshman class. The number of appli­
cants who are deemed to be not ‘ ‘ qualified ’ ’ is comparatively 
small. The vast majority of applicants demonstrate through 
test scores, high school records and teachers’ recommenda­
tions that they have the academic ability to do adequate work 
at Harvard, and perhaps to do it with distinction. Faced 
with the dilemma of choosing among a large number of 
“ qualified” candidates, the Committee on Admissions could 
use the single criterion of scholarly excellence and attempt 
to determine who among the candidates were likely to per­
form best academically. But for the past 30 years the Com­
mittee on Admissions has never adopted this approach. The 
belief has been that if scholarly excellence were the sole or 
even predominant criterion, Harvard College would lose a 
great deal of its vitality and intellectual excellence and that 
the quality of the educational experience offered to all stu­
dents would suffer. Final Report of W. J. Bender, Chairman 
of the Admission and Scholarship Committee and Dean of 
Admissions and Financial Aid, pp. 20 et seq. (Cambridge, 
1960). Consequently, after selecting those students whose 
intellectual potential will seem extraordinary to the faculty 
—perhaps 150 or so out of an entering class of over 1,100— 
the Committee seeks—

variety in making its choices. This has seemed impor­
tant . . .  in part because it adds a critical ingredient to 
the effectiveness of the educational experience [in 
Harvard College] . . . The effectiveness of our students’ 
educational experience has seemed to the Committee to 
be affected as importantly by a wide variety of interests, 
talents, backgrounds and career goals as it is by a fine 
faculty and our libraries, laboratories and housing ar­
rangements. (Dean of Admissions Fred L. (3-limp, Final



2

Report to the Faculty of Arts and Sciences, 65 Official
Register of Harvard University No. 25,93,104-105 (1968)
(emphasis supplied).

The belief that diversity adds an essential ingredient to 
the educational process has long been a tenet of Harvard 
College admissions. Fifteen or twenty years ago, how­
ever, diversity meant students from California, New York, 
and Massachusetts; city dwellers and farm hoys; violinists, 
painters and football players; biologists, historians and 
classicists; potential stockbrokers, academics and politi­
cians. The result was that very few ethnic or racial minori­
ties attended Harvard College. In recent years Harvard 
College has expanded the concept of diversity to include 
students from disadvantaged economic, racial and ethnic 
groups. Harvard College now recruits not only Californians 
or Louisianans but also blacks and Chicanos and other 
minority students. Contemporary conditions in the United 
States mean that if Harvard College is to continue to offer a 
first-rate education to its students, minority representation 
in the undergraduate body cannot be ignored by the Commit­
tee on Admissions.

In practice, this new definition of diversity has meant 
that race has been a factor in some admission decisions. 
When the Committee on Admissions reviews the large middle 
group of applicants who are “ admissible” and deemed ca­
pable of doing good work in their courses, the race of an ap­
plicant may tip the balance in his favor just as geographic 
origin or a life spent on a farm may tip the balance in other 
candidates’ cases. A farm boy from Idaho can bring some­
thing to Harvard College that a Bostonian cannot offer. 
Similarly, a black student can usually bring something that 
a white person cannot offer. The quality of the educational 
experience of all the students in Harvard College depends 
in part on these differences in the background and outlook 
that students bring with them.



3

In Harvard College admissions the Committee has not 
set target-quotas for the number of blacks, or of musicians, 
football players, physicists or Californians to be admitted 
in a given year. At the same time the Committee is aware 
that if Harvard College is to provide a truly heterogenous 
environment that reflects the rich diversity of the United 
States, it cannot be provided without some attention to 
numbers. It would not make sense, for example, to have 
10 or 20 students out of 1,100 whose homes are west of 
the Mississippi. Comparably, 10 or 20 black students could 
not begin to bring to their classmates and to each other the 
variety of points of view, backgrounds and experiences of 
blacks in the United States. Their small numbers might 
also create a sense of isolation among the black students 
themselves and thus make it more difficult for them to de­
velop and achieve their potential. Consequently, when mak­
ing its decisions, the Committee on Admissions is aware 
that there is some relationship between numbers and achiev­
ing the benefits to be derived from a diverse student body, 
and between numbers and providing a reasonable environ­
ment for those students admitted. But that awareness does 
not mean that the Committee sets a minimum number of 
blacks or of people from west of the Mississippi who are 
to be admitted. It means only that in choosing among 
thousands of applicants who are not only “ admissible” 
academically but have other strong qualities, the Commit­
tee, with a number of criteria in mind, pays some atten­
tion to distribution among many types and categories of 
students.

The further refinements sometimes required help to 
illustrate the kind of significance attached to race. The 
Admissions Committee, with only a few places left to fill, 
might find itself forced to choose betwreen A, the child of 
a successful black physician in an academic community with 
promise of superior academic performance, and B, a black 
who grew up in an inner-city ghetto of semi-literate parents



4

whose academic achievement was lower but who had demon­
strated energy and leadership as well as an apparently- 
abiding interest in black power. If a good number of black 
students much like A but few like B had already been 
admitted, the Committee might prefer B; and vice versa. 
If C, a white student with extraordinary artistic talent, 
were also seeking one of the remaining places, his unique 
quality might give him an edge over both A and B. Thus, 
the critical criteria are often individual qualities or experi­
ence not dependent upon race but sometimes associated 
with it.



'V