Carr v. Montgomery County Board of Education Motion for Summary Reversal

    JAMES M, NABR1T, f|f
associate-counsel

I N  T H E
&uprpmp (Unurt of th? llmtefr States

O ctober T e e m , 1977

No. 76-811

T h e  R egents  of t h e  U niversity  of C alifof.n ia , 
Petitioner, 

v.
A lla n  B a k k e , Respondent.

O n Petition for a Writ of Certiorari to the Suprem e Court 
of the State of California

BRIEF IN REPLY OF MEMBERS OF THE CONGRESSIONAL 
BLACK CAUCUS, MEMBERS OF THE CONGRESS OF THE 

UNITED STATES, TO BRIEF OF THE UNITED STATES, 
AMICI CURIAE

W illiam Clay 
Missouri, 1st District 
Cardiss Collins 
Illinois, 7th District 
J ohn Conyers 
Michigan, 1st District 
Ronald Dellums 
California, 8th District 
Charles C, D iggs, J r. 
Michigan, 13th District 
Walter E. F auntroy 
District of Columbia

Augustus F. H awkins 
California, 29th District 
Barbara J ordan 
Texas, 18th District 
Ralph II. Metcalfe 
Illinois, 1st District
Robert N. C. N ix 
Pennsylvania, 2nd District 
Charles B. Rangel 
New York, 19th District

B y
Herbert 0 . Reid, Sr.
Howard University 
School of Law 
2935 Upton Street, N.W. 
Washington, D. C. 20008

Attorneys /<

Arthur K inoy 
Rutgers University 
School of Law 
180 University Avenue 
Newark, New Jersey 07102 
Amici Curiae

P re s s  o r  Byhon S . A dams P r in t in g , I n c ., Wa sh in g t o n . D . C.



INDEX
Page

I nterest of th e  A m ici Cu r ia e ........... .......................... .. 1

A r g u m e n t ....................... ........................ ........................................ 6

I. The Government’s Argument Fails To Compre­
hend the Full Intendment of the Civil War 
Amendments .............................................. • • • 6

II. The Government’s Qualifications On the Use of 
Race Has No Constitutional, Legal or Rational 
Basis  ................................................................ 9

III. We Take Issue With the Government’s Conclu­
sion That the Case Should Be Remanded . . . . .  12

C onclusion .......................................................................... .. • • • 13

TABLE OF AUTHORITIES
Cases :
Brown v. Board of Education, 347 U.S. 483, (1954)

349 U.S. 294 (1955) .......................................6,7,9,13
Carter v. Yardley & Co., 319 Mass. 92, 64 N.E. 2d

693 (1946) ........................................................... • 10
Civil Rights Cases, 109 U.S. 3 (1883)........................... 7
Jones v. Mayer Co., 392 U.S. 409 (1968) ................. . 6, 9
Plessy v. Ferguson, 163 U.S. 537 (1896) . . . . . . . . . . . .  7
Swann v. Charlotte-Mecklenhurg Board of Education,

402 U.S. 1 (1971) ..................- ................. • ..........  11
United Jewish Organization of Williamsburgh, Inc. v. 

Carey, 430 U.S. 144 (1977) ............ .................. .7,11

Constitution  :

U.S. Constitution Amendment X I I I ............................  6, 7
U.S. Constitution Amendment X IY ............................  6, 7
U.S. Constitution Amendment X V ...........: .................  6, 7

Oth er  A uthority  :
Kerner, Report of the National Advisory Commission

on Civil Disorders (1968) .....................................  7
Woodward, C. Vann, Reunion and Reaction (1951) .. 8



IN  THE
( ta r t  of %  Initri* Stairs
O ctober T e r m , 1977

No. 76-811

T h e  R egents of t h e  U niversity  of C a lifo r n ia , 
Petitioner,

v.
A lla n  B a k k e , Respondent.

On Petition for a Writ of Certiorari to the Supreme Court 
of the State of California

BRIEF IN REPLY OF MEMBERS OF THE CONGRESSIONAL 
BLACK CAUCUS, MEMBERS OF THE CONGRESS OF THE 

UNITED STATES, TO BRIEF OF THE UNITED STATES, 
AMICI CURIAE

INTEREST OF THE AMICI CURIAE

The Amici are members of the Congressional Black 
Caucus. The Congressional Black Caucus, Inc., a not- 
for-profit corporation, was formed on December 10, 
1971, to operate exclusively for the promotion of social 
welfare of the various peoples of the community who 
look to it for guidance and leadership.



The thirteen Black Members of the Congress in 
1971 saw the need to formalize their association to be 
able to speak with a unified voice for a historically 
underrepresented group which still faced the oppres­
sion of racial discrimination and economic distress. 
By setting forth positions agreed to among themselves 
after consultation with persons from the Black com­
munities throughout the nation, the Congressional 
Black Caucus would articulate the views of a national 
constituency in Congress. Stated simply, the Caucus 
provides a voice in the U.S. Congress for the concerns 
of Black and poor Americans.

The first Annual Dinner of the Caucus, held on June 
18, 1971, was extremely successful. In  addition to rais­
ing funds to sustain the staff operation, the Dinner first 
brought the Caucus to national attention as an advo­
cate for Black concerns. The national recognition was 
solidified when the Caucus met with then-President 
Richard Nixon on March 24, 1971, and presented him 
with a paper proposing specific recommendations for 
governmental action on domestic and foreign policy 
issues. The President’s response was not considered 
adequate, which strengthened the resolve to build the 
Caucus into a national political force to represent the 
underrepresented.

Initially, a series of hearings and conferences on 
legislative issues were held to gather information 
upon which to build a legislative program. The facts 
gathered at the conferences wrere assembled to deter­
mine priority goals in such areas as Employment, 
Health Policy, Minority Enterprise, Education and 
Racism in the Military. At the same time, the Caucus 
found that many Black citizens were contacting the 
Caucus office with individual problems, which was



3

beyond the capacity of a small staff with a legislative 
focus to handle.

In  1973, the Caucus delivered a “ True State of the 
Union Message” on the House floor in an effort to set 
forth the Caucus Members’ view of the nation’s major 
issues.

A legislative support network around the legislative 
priorities began in 1974. Continuing communication 
with Caucus supporters was initiated through a regu­
larly published Caucus newsletter, “ For The People,” 
and a legislative update of key issues affecting minori­
ties and the poor was disseminated. A seven person 
staff concentrated on working for the passage of legis­
lation on the Legislative Agenda, developing a referral 
system for persons seeking assistance, creating a na­
tional legislative support network, and strengthening 
ties to other Black elected officials.

In  1976 a second legislative agenda was formulated, 
concentrating on ten issue areas including Full Em­
ployment, Health Care, Urban Revitalization, Civil 
and Political Rights and Foreign Affairs.

A staff of eight full time persons provides the legis­
lative, research, and information coordination of 
Caucus activities. While the staffs of individual Cau­
cus Members work on matters concerning their sixteen 
congressional districts, the Caucus staff works in sev­
eral key areas:

1. Issues of concern to the entire Caucus;
2. Issues which need the collective effort of the 

entire Caucus;
3. Issues which have broad impact on Black and 

other underrepresented Americans;



4. Issues which members may be better able to 
support under the Caucus umbrella than in 
their own individual names.

The various members of Congress included in this 
Caucus have authored, voted for and encouraged other 
members of the Congress to pass legislation sup­
portive of the National Government’s policy of af­
firmative action using race as a corrective factor. See 
Appendix A to the brief for the United States as 
amicus curiae.

Because of this special interest as members of the 
Black Congressional Caucus and as members of the 
Congress of the United States, we wish to reply to the 
Brief filed on behalf of the United States as Amicus 
Curiae.

The government in its “ Motion To Participate In  
Oral Argument” has characterized its arguments in 
this case as follows:

“ The brief of the United States in this case pre­
sents the issues and arguments in a way that is 
significantly different from the approaches taken 
by either party. Both of the parties have argued 
that the dispositive question is whether race may 
be taken into account at all in making admissions 
decisions; we have taken the position that it is im­
portant how race was used, and for what reasons. 
Our brief, unlike the approach of either party, em­
phasizes the argument that the use of race is justi­
fied in order to redress the lingering effects of so­
cietal discrimination. We then argue, again unlike 
either party, that the central constitutional ques­
tion is whether the program has been tailored to 
take race into account in a way consistent with the 
requirement of fair treatment of all applicants to 
the professional school. We conclude that the judg-



5

ment of the Supreme Court of California should 
be reversed in part and vacated in part, so that 
the parties may seek to introduce additional evi­
dence, consistent with these principles.

Because we have approached the case from a 
perspective neither party shares, and because we 
have come to conclusions that are different from 
those of either party, I  believe that an oral pre­
sentation of the views of the United States would 
be of assistance to the Court.”

As members of the Congressional Black Caucus and 
as Members of Congress we wish to reply to the argu­
ments of the government as not fully representative 
of all of the constitutent branches of government and 
in particular not fully representative of our views as 
Members of Congress. We welcome certain of the posi­
tions advanced in the brief of the United States but 
feel that it is necessary to place before the Court sev­
eral critical questions raised by certain of the formula­
tions and approaches of the brief of the United States.

We take issue with the government’s failure to meet 
directly the central question raised in the case: That 
the State of California and the University of Califor­
nia, Davis Medical School’s use of race in an affirma­
tive action program provides an effective remedy to 
begin to overcome the past and present discrimination 
against and exclusion of minority people from the 
profession of medicine, and is constitutional.

We believe that this Court consistent with the man­
date of the wartime Amendments to the Constitution 
and its own past decisions must forthrightly and with­
out reservation support the constitutionality of the af­
firmative action remedy of the University of California,



Davis Medical School. The decision of the California 
Supreme Court must be reversed and vacated without 
any remand which might result in further dilatory 
action.

Any vacillation or hesitation by this Court in reaf­
firming the fundamental principles at stake in this case 
may well sound the deathknell of the progress made 
since this Court’s decision in Brown v. Board of Edu­
cation, 347 TT.S. 483 (1954), in bringing into life the 
promises of freedom and equality written into our 
fundamental law by the Thirteenth, Fourteenth and 
Fifteenth Amendments.

ARGUMENT

I.

The Government's Argument Fails to Comprehend the Full 
Intendment of the Civil War Amendments

We are deeply concerned with the government’s fail­
ure to understand and articulate before this Court the 
full thrust of the Civil W ar Amendments, which im­
posed a mandatory obligation on every segment of 
American society to utilize effective measures to over­
come the incidents of slavery and all of its persisting 
badges and indicia. See Jones v. Mayer, 392 U.S. 409 
(1968). Surely it is time for the Court to state as di­
rectly as it did in Jones that just as the herding of 
Black men and women into urban ghettos is a con­
tinuing badge and indicia of slavery, so the massive 
exclusion of minority people from professions such as 
medicine, law, and teaching, and from employment in 
industry is also a deeply persisting badge and indicia 
of slavery.



7

The Thirteenth Amendment, implemented by the 
fourteenth and Fifteenth Amendments, as this Court 
taught in Jones, creates a mandatory duty upon every 
section of society to take effective measures to eliminate 
these badges and indicia. Affirmative action programs 
like the program at issue in this case, are undertaken 
to implement this high, historic duty commanded by 
the Constitution. They are remedies designed to correct 
fundamental constitutional wrongs, which if permitted 
to persist threaten the very future existence of the na­
tion. See Kerner Report of the National Advisory 
Commission On Civil Disorders (1968). This Court 
from Brown v. Board of Education, 347 U.S. 483 
(1954), 349 U.S. 294 (1955), to United Jewish Orga­
nizations of Williamsburgh, Inc. v. Carey, 430 U.S. 
144 (March 1, 1977) has recognized that remedies de­
signed to eliminate the exclusion of racial minorities 
from significant areas of American life are of the high­
est constitutional importance. They are not constitu­
tionally “ suspect.” They must receive the highest de­
gree of protection by this Court or else we will have 
embarked on a new period of judicial burial of the 100 
years of promises of equality and freedom sadly similar 
to the bitter years following the political and judicial 
abandonment of the wartime amendments after the 
Civil War. Of. the impact of the Civil Rights Cases, 
109 U.S. 3 (1883) and Plessy v. Ferguson, 163 U.S. 
537 (1896).

The ominous warnings of the first Justice Harlan in 
his dissenting opinions which have been so vindicated 
by the course of history are once again deeply relevant 
to our future. Any weakening of the fundamental im­
portance of effective affirmative remedies, as occurred 
in the years following the now infamous political be-



8

trayal of 1877, (See generally, C. Vann Woodward, Re­
union and Reaction (1951) once again will, as Justice 
Harlan so eloquently warned, enflame the fires of a 
deeply engrained racism in every level of society and 
perpetuate the enforced inferior status of all minority 
peoples, endangering the very future of the Nation.

There is not the slightest question that Avithin the 
broad sweep of the affirmative power of the wartime 
Amendments and the decisions of this Court over the 
last decade enforcing that commitment, effective af­
firmative action programs, such as the one now before 
the Court, are constitutionally mandated and entitled 
to the fullest protection of the Court. Contrary to the 
suggestion of the government, there is nothing to re­
mand for further “ eAudence.” The affirmative action 
program here at issue involves the admission of ad­
mittedly qualified minority people to meet the admitted 
situation of gross exclusion of minority people from 
the medical profession. Any suggestion that such a 
program may not be constitutional and requires further 
“ study” undermines the constitutional goal and com­
mand that affirmative measures must be taken to elimi­
nate the inferior status of so many of our citizens. In 
the record of this case there is not a scintilla of evidence 
to suggest that the reservation of 16 places out of 100 
for disadvantaged and minority people is in the slight­
est degree an unreasonable application of the duty im­
posed on the University of California by the Constitu­
tion. The “ burden” does not lie on the University to 
justify its response to the command of the Constitution. 
The burden lies on those who seek to undermine and 
destroy the Constitutional mandate to justify their 
position. No such burden has been met here and, we 
assert the Constitution does not tolerate such an argu-



9

mo,nt. Just as Mr. Justice Black once reminded us in 
respect to the F irst Amendment, all balancing was 
done when the Thirteen Amendment was enacted. The 
Nation then promised to take all necessary measures, 
whatever the cost, to carry through the commitment to 
enforce the “universal charter of freedom” (cf. the 
Civil Rights Cases, supra), which the Amendment 
ordained.

I t  took almost 75 years for this Court in Brown v. 
Board of Education, supra, to begin to undo the judi­
cial burial of the Wartime Amendments. I t  would be a 
national disaster on a most ominous level for this Court 
to in any way retreat from the commitment stated in 
Brown-said restated so powerfully in Jones v. Mayer, 
supra to breathe life into the promises of freedom and 
equality embodied in the Wartime Amendments.

II.

The Government's Qualifications on the Use of Race Has No 
Constitutional, Legal or Rational Basis

The government agrees that race may be taken into 
account to remedy the effects of societal discrimina­
tion. The government would qualify the mandate of 
the several Civil W ar Amendments, the decisions of 
this Court and the present national policy by placing 
Limitation on the use of race first conceived here by 
the government. The use of race would become a null­
ity by the device of the general rule and exceptions 
which eventually destroy the effectiveness of the rule. 
Judge Lummus of the Supreme Judicial Court of 
Massachusetts observed this process in another field 
of law:

“The MacPherson case caused the exception to 
swallow the asserted general ride of non-liability



10

leaving nothing upon which that rule could op­
erate.” Carter v. Yardleiy & Co., 319 Mass. 92, 64 
N.E. 2d 693 (1946).

In  the government’s view this case presents complex 
questions concerning the manner in which race prop­
erly may be taken into account. The government’s pro­
posed test would raise such questions a s : W hat use may 
be made of race? When is its use legitimate? What 
constraints exist on the authority of states to make 
color-conscious decisions? When has a State over­
stepped permissible bounds? The government’s posi­
tion poses a balancing test between the individual 
rights of the persons denied admission and the rights 
of blacks and other minorities as groups. Under the 
government’s qualifications race may be a legitimate 
tool of decision-making only when race has importance. 
The government would justify the use of race to over­
come handicaps that may have been caused by race. Any 
other use would be impermissible. Race may he used 
to make competition more effective, but not to prevent 
competition between majority and minority applicants.

These qualifications on the use of race make a mock­
ery of the government’s position affirming the use of 
race.

Realistically no program could be fashioned and ad­
ministered within these restrictions. These programs 
would fall into an administrative quagmire. Those 
surviving would be subject to endless litigation as to 
the proper qualifying conditions on the use of race.

The command of the Constitution and the decisions 
of this Court place no such qualifications on the use of 
race as the government here suggests. The color-con-



11

scions cases from Swann v. Charolotte-MecMenlmrg 
Hoard of Education, 402 U.S. 1 (.1971) to United Jew­
ish Organization of Williamsburgk, Inc. v. Carey, 430 
U.S. 144 (1977), erect no such qualifications. Race may 
be used to remedy the effects of past and present racial 
discrimination. This approach has been taken by this 
Court to vindicate the rights of the individual members 
of the group which have been discriminated against. 
These individuals had personal and immediate rights 
to vindication until the government in 1955 trans­
planted into the field of civil rights jurisprudence the 
concept of “ all deliberate speed.” To talk now in terms 
of balancing the interest of the individuals of the ma­
jority group that may be affected by granting rights to 
individual members of excluded groups is legal legerdo- 
main. It. appears to give that which it in fact withholds.

The constitutional mandate to overcome the status of 
inferiority and exclusion imposed upon minority peo­
ples cannot be balanced against the possible impact of 
these reasonable measures on random individuals who 
are not members of excluded groups. The only permis­
sible inquiry is whether the program involved carries 
out the constitutional mandate of removing the status 
of inferiority and exclusion. This is an objective of the 
highest national importance and no considerations of 
possible impact upon individuals who are not members 
of an excluded group are relevant to the constitutional 
permissibility of reasonable measures adopted to meet 
the constitutional command. There is no balancing to 
be done.



12

III.

We Take Issue With the Government's Conclusion 
That the Case Should Be Remanded

The reasons asserted by the government for a remand 
are groundless. The government suggests a remand to 
establish a record to explore the presence or non-pres­
ence of qualifications on the use of race in order to 
engage in a balancing process which we have just 
pointed out is impermissible under the Constitution. 
The government’s contribution of the balancing test 
may well be, if adopted, the present day counterpart 
of “ separate-but-equal” or “ all deliberate speed.” 
That would require a minimum of another generation 
to undo the shackles which such a “ balancing test” 
would then place on the implementation of the consti­
tutional promise of equality and freedom.

Furthermore, the wholly unnecessary delay which 
the suggestion of remand would involve, would danger­
ously stimulate the dismantling of the many existing 
affirmative action programs in the private and public 
sectors. I t  would, in a manner completely unwarranted 
by the Constitution, raise a suggestion of possible in­
validity in respect to every existing effective program. 
It would encourage the drowning of affirmative action 
in an ocean of litigation. The clear mandate of the 
Constitution requires a firm and decisive stand by this 
Court sustaining for all to hear the constitutionality 
of effective, meaningful affirmative action measures. 
The Thirteenth, Fourteenth and Fifteenth Amend­
ments demand no less.



13

CONCLUSION

As Members of the Congress, with a strong commit­
ment to the Black constituency, we feel impelled to 
urge upon this Court the urgency and the necessity for 
a strong forthright statement in support of the na­
tional commitment to affirmative action to bring to full 
fruition the intendment of the landmark decision of 
this Court in Brown v. Board of Education, supra. 
The future health and welfare of this nation, both 
domestically and internationally dictate that there 
must be no judicial retreat on the constitutional man­
date that equality and freedom must be meaningful 
concepts for all the people of our country.

Respectfully submitted,

H erbert O. R eid, Sr.
Howard University 
School of Law 
2935 Upton Street, N.W. 
Washington, D.C. 20008

A r t h u r  K inoy

Rutgers Uni versify 
School of Law 
180 University Avenue 
Newark, New Jersey 07102
Attorneys for the Amici Curiae
Members of the Congressional 
Black Caucus, Members of the 
Congress of the United. States.