Brooks v. Beto Appellee's Brief

    JAMES M. NA8SIT, III
ASSOCIATE-COUNSEL

I k  t h e

(Burnt af H&nitvb B u Xbb
O ctobeb T erm  1976 

Mo. 76-811

T h e  R eg en ts  oe t h e  U n iv ersity  op Ca lifo rn ia ,

Petitioner,
vs.

A lla n  B a k k e ,
Respondent.

BRIEF OF THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE

N a t h a n ie l  R. J ones 
General Counsel

W illia m  D. W ells  
Assistant Counsel

T h eresa  D e m c h a k  
Special Counsel

N a t h a n ie l  S. C olley

West Coast Regional Counsel

National Association for the 
Advancement of Colored People 
1790 Broadway—10th FI.
New York, New York 10019

S ta nley  G oodman 
Law Intern



TABLE OF CONTENTS

PAGE

Interest of tlie Amicus .................................... .............  1

Consent of the Parties .................................................  2

Introduction and Summary of the Argument ............  3

A rg u m en t

I. The Special Admissions Program Should Be 
Upheld as a Permissible, Voluntary Effort 
of the Davis Medical School to Desegregate 
Its Institution ..................„...........................  5
A. The Federal Standard ................. ......... 5
B. Under Established Federal Law, The

California Regents Were Permitted to 
Initiate Voluntary Methods of Desegre­
gation to Eliminate Present Effects of 
Past Discrimination ................................ 6

II. The Actions of the Regents Were Not Only 
Permitted But Were Required Under Cali­
fornia Law ....................................................  9
A. The Duty Owed ............... ................. ..... 9
B. The Method Chosen.................... :......... . 14
C. Summary ............................... .................  18

III. The Use of Race Conscious Criteria For Ad­
mitting Qualified Minority Applicants to 
Scarce Educational Opportunities Is Not 
Rendered Unconstitutional by the Absence 
of a Judicial Finding of Past Discrimination 22



11

PAGE

IV. The Use of Race Conscious Selection Tech­
niques For the Admission of Medical Stu­
dents Is Authorized by Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. §2000d et seq.,
in the Circumstances of This Case .............  25

C on clu sio n  .............................. ....................................  34

T able oe Cases

Arvizu v. Waco Independent School District, 373 F. 
Supp. 1264 (W.D. Tex. 1973), aff’d, 495 F.2d 499
(5th Cir. 1974) ....................... .................................17

Associated General Contractors of Massachusetts v. 
Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, den., 416 
U.S. 957 (1974) ........................................................  23

Beer v. United States, 425 U.S. 130 (1976) ................. 22
Bob Lo Excursions Co. v. Michigan, 333 U.S. 28 ......  20
Booker v. Special School District #1, Minneapolis,

351 F. Supp. 799 (D.C. Minn. 1972) ...................... 17
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), aff’d

in part and rev’d in part, 418 U.S. 717 (1974) ___  7
Briggs v. Elliot, 374 U.S. 483 (1954) ...... .....................  5
Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir. 1976),

cert, denied, 423 U.S. 1000 (1976) .......................... 7
Brown v. Board of Education, 347 U.S. 483 (1954) .... 5

Contractors Association of Eastern Pennsylvania v. 
Secretary of Labor, 442 F.2d 159 (3rd Cir. 1971),
cert, denied, 404 U.S. 854 (1971) ................ ........... 23

Crawford v. Board of Education of the City of Los 
Angeles, 17 Cal. 3d 280, 130 Cal. Rptr. 724, 551 P.2d
28 (1976) ..................................................8,10,11,12,14



Ill

PAGE

Davis v. Baton Rouge Parish School District, 398 F.
Supp. 1013 (D.C. La. 1975) ..................................... 17

Davis v. County School Board of Prince Edward, Vir­
ginia, 347 U.S. 483 (1954) .............. .........................  5

EEOC v. A.T.&T.,-----F.2d------ , 14 EPD Para. 7506
(3rd Cir. 1977) ................ -.... ............ ........................ 23

Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976) ........................................................................  22

Gebhart v. Belton, 347 U.S. 483 (1954) ......................  5
Goss v. Board of Education, Knoxville, 301 F.2d 164

(6th Cir. 1962), vacated, 373 U.S. 683 (1963) ......  17
Green v. County School Board of New Kent County,

391 U.S. 430 (1968) .............................................. 9
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ----- 31

Hart v. Community School Board of Education, N.Y.
School Dist. #2, 512 F.2d 37 (2nd Cir. 1975) .......... 17

Hills v. Gautreaux, 425 U.S. 284 (1976) .....................  22

Jackson v. Pasadena City School District, 59 Cal, 2d 
876, 31 Cal. Rptr. 606, 382 P.2d 878 (1963) ............. 9,11

Keyes v. School District No. 1, Denver, 413 U.S. 189 
(1973) ............. ..... .......................................... ........... 6,14

Lau v. Nichols, 414 U.S. 563 (1974) .................... 20, 30? 33
Lee v. Macon County Board of Education, 317 F. Supp.

103 (M.D. Ala. 1970) .............................................. 17
Louisiana v. United States, 380 U.S. 145 (1965) .......... 22

Milliken v. Bradley, 418 U.S. 717 (1974) ....................6,14
Morgan v. Virginia, 328 U.S. 373 .......................... ..... 19



IV

PAGE

North Carolina Board of Education v. Swann, 402 
U.S. 43 (1971) ................................................... 7,8,23,24

Oliver v. Kalamazoo, 508 F.2d 178 (6th Cir. 1974), 
cert, denied, 421 U.S. 963 (1975) .................... ........ 7

People v. Superior Court, 38 Cal. App. 3d 966, 113 
Cal. Rptr. 732 (Court of Appeals 1974) .... ............ 11,12

San Francisco Unified School District v. Johnson, 3 
Cal. 3d 937, 92 Cal. Rptr. 309, 479 P.2d 669 (1971) .. 10 

Santa Barbara School District v. Superior Court, 13 
Cal. 3d 315, 118 Cal. Rptr. 637, 530 P.2d 605 (1976) .. 10 

Serrano v. Priest, 5 Cal. 3d 584, 96 Cal. Rptr. 601, 486
P.2d 1241 (1971) ..................... ........... ........... ..........10-11

South Carolina v. Katzenbach, 383 U.S. 301 (1966) .... 22 
Southern Illinois Builders Association v. Ogilvie, 471

F.2d 680 (7th Cir. 1972) ........... ........... ................. 23
Spangler v. Pasadena City Board of Education, 311

F. Supp. 501 (C.D. Cal. 1970) ................ ............... 17
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) ........ ............................ .....6, 7, 8, 9, 22

United Jewish Organizations of Williamsburgh, Inc.
v. Carey,-----U.S.------, 45 U.S.L.W. 4221 (1977) ..22, 24

United States v. Montgomery County Board of Educa­
tion, 395 U.S. 225 (1969) ..........................................  22

Washington v. Davis, 426 U.S. 229 (1976) 24



V

PAGE

S tatutes and R egulations

Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
§2000(1 ............................................... 4, 5, 25, 26, 30, 31, 32

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§2000e .......................................................-...............30,31

45 C.F.R. §80 .... ..............................27,28,29,30,31,32,33
35 Fed. Reg. §1607 ......... ........................... -.......... -....... 31
1964 U.S. Code, Cong. & Admin. News ...................... 26, 27

R eports and A rticles

“Report of the Association of American Medical Col­
leges Task Force to the Inter-Association Committee 
on Expanding Educational Opportunities for Blacks 
and Other Minority Students,” (Washington: As­
sociation of American Medical Colleges, April 22, 
1970) 32



I n  t h e

g>itprpmp CHoxtrt of tlje Mnitefc S tates
O ctobeb T erm  1976

No. 76-811

T h e  R eg en ts  op t h e  U n iversity  op Califo rn ia ,

Petitioner,
vs.

A lla n  B a k k e ,
Respondent.

BRIEF OF THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE 

AS AMICUS CURIAE

Interest of the Amicus

The National Association for the Advancement of Col­
ored People (NAACP) is a nonprofit membership asso­
ciation representing the interests of approximately 500,000 
members in 1800 branches throughout the United States. 
Since 1909, the NAACP has sought through the courts to 
establish and protect the civil rights of minority citizens. 
In this respect, the NAACP has often appeared before 
this Court as an amicus in cases involving employment, 
voting rights, jury selection, capital punishment and other 
cases involving civil rights. More frequently, however, 
the NAACP has appeared here as counsel to parties in 
school desegregation suits.



2

The present case is of particular interest to the NAACP 
as it involves the review of a decision which, if affirmed, 
will in all likelihood put an end to the recent efforts of 
some institutions of higher learning to voluntarily and 
effectively desegregate their facilities. At the very least, 
affirmance would serve to discourage such efforts and will 
deprive this nation of yet another generation of highly 
educated, highly qualified minority professionals. The 
NAACP has repeatedly appeared before Congress, suc­
cessfully pleading the interests of its members for ob­
taining sweeping legislation requiring the integration of 
all publicly financed education facilities. Court-ordered 
elimination of the affirmative action device chosen by the 
Davis medical school on grounds that it violates the 14th 
Amendment would render the efforts of the amicus and 
the legislation obtained largely meaningless.

The true import of this case is that affirmance by the 
Court will cast a direct burden upon the amicus and upon 
other civil rights organizations who have chosen litigation 
as our primary means of ending racial discrimination. 
Frequently characterized as “private attorneys general,” 
we have almost singlehandedly enforced the nation’s com­
mitment to equal educational opportunities. An adverse 
decision in this case will redouble our burden of litigation, 
requiring us to seek in the courts what a growing number 
of educational institutions have recently been willing to 
accomplish voluntarily.

Consent of the Parties

With the consent of both parties pursuant to Rule 42 
of the Supreme Court Rules, Amicus respectfully submits 
this brief in support of the Petitioner, the Regents of the 
University of California.



3

Introduction and Summary of the Argument

The most fundamental fact in this case is that if the 
Davis medical school had adhered strictly to its regular 
admissions program for the tilling of all available posi­
tions, there would have been few, if any, black or Chicano 
medical students admitted. Although there would have 
been no dearth of perfectly qualified minority applicants, 
they would have virtually all been screened out by the 
regular admissions criteria. These criteria, admitting two 
thirds of the students based upon a ranking of “bench­
mark” scores and one third of the students based upon 
such otherwise extraneous factors as marital status, loca­
tion of intended medical practice, and “balance”,1 have 
only a limited basis for predicting medical school per­
formance for most students,2 and no basis for predicting 
performance of minority students.3

Having the prescience to anticipate the absence of minor­
ity students, the Regents approved a special admissions 
program for admitting qualified students who were both 
disadvantaged and of minority background. Sixteen per-

1 Only two out of three of the applicants offered admission 
through the regular admission ranking process chose to attend the 
Davis Medical School. The remaining students were selected from 
the “alternate list” by the Dean of Admissions, which list was not 
ranked according to numerical “qualifications.” Declaration of 
George H. Lowery, p. 4.

2 Dr. Lowery stated that only one of the four scores obtained 
on the Medical College Admissions Test was useful in predicting 
academic performance during the first two years of medical school, 
and that “there is not very much correlation beyond that.” Deposi­
tion of George H. Lowery, CT-152.

3 Dr. Lowery stated that “quantifiable data, such as the test 
scores and grades of applicants do not necessarily reflect the capa­
bilities of disadvantaged persons.” Declaration of George H. 
Lowery, p. 8.



4

cent of the available positions were reserved for these 
applicants.

The California Supreme Court determined that the spe­
cial admissions program, based in part on racial classi­
fications, was invidious discrimination under the Four­
teenth Amendment. Without reaching the question of 
whether the program fulfilled compelling state interests, 
the court below reasoned that there were less intrusive 
alternatives available. The court suggested that the school 
could expand its student capacity and that the admissions 
process could become more subjective, embracing covert 
decision making calculated to increase the proportion of 
minority students regularly admitted.

The Amicus argues that it was not necessary to consider 
whether there were less intrusive alternatives or whether 
there was a compelling state interest, because the special 
admissions device is a constitutionally permitted and 
statutorily authorized device for ameliorating the racial 
exclusion that would otherwise exist. Numerous decisions 
of this Court interpreting the Fourteenth Amendment and 
of the court below interpreting state lav/ warrant the 
use of race conscious remedies to desegregate a public 
educational institution. Through Title VI of the Civil 
Rights Act of 1964, 42 F.S.C. §2000d et seq., Congress has 
required the desegregation of any institution receiving 
federal financial assistance. The Department of Health, 
Education and Welfare, exercising its statutory authority 
to issue regulations under Title VI, has specified that race 
conscious devices must be utilized to overcome the effects 
of past racial exclusion, whether or not that past exclusion 
was purposeful,4 Thus, the court below erred in its con-

4 In the trial court, both the Respondent in his complaint and 
the Petitioner in its cross-complaint alleged Title VI as a juris­
dictional basis. The trial court determined that the special ad-



5

sideration of the parameters of the Fourteenth Amend­
ment, and the decision of the Supreme Court of Cali­
fornia must be reversed.5

ARGUMENT

I.

The Special Admissions Program Should Be Upheld 
as a Permissible, Voluntary Effort of the Davis Medical 
School to Desegregate Its Institution.

A. The Federal Standard

Since its landmark decision in Brown v. Board of Educa­
tion, 347 U.S. 483 (1954) this Court has consistently up­
held the notion that:

. . .  in the field of public education the doctrine of 
“separate but equal” has no place. Separate educa­
tional facilities are inherently unequal. Id. at 495.

While Brown and its companion cases6 dealt with specific 
statutes which required or permitted the segregation by

missions program violated Title VI, but the issue was not discussed 
by the Supreme Court of California. Although the record is tech­
nically silent with respect to whether the D.avis Medical School 
receives federal financial assistance and is therefore subject to 
Title VI, the Court may take notice of the fact, may establish the 
fact through questioning at oral argument, or may remand the 
case for the limited purpose of making such a determination.

6 The Respondent, Allan Bakke, has not challenged the special 
admissions program on the ground that a reservation of sixteen 
percent or any other number is arbitrary or unreasonable, only 
that it is per se unconstitutional. Although the Amicus fully con­
cedes that the use of race, while permissible, is only a “starting 
point” and cannot be arbitrarily or unreasonably used, the Court 
need not reach the issue of whether it was so used in this case.

6 Briggs v. Elliott; Davis v. County School Board of Prince Ed­
ward County, Va.; and Gebhart v. Belton, 347 U.S. 483 (1954).



6

race of public school students, this Court has construed 
the concept of de jure  segregation to include situations 
in which the actions and/or inactions of local and state 
officials have had the foreseeable effect of creating, main­
taining or perpetuating racial segregation within the 
schools.7 Moreover, where school officials, through policies 
and practices such as assignment patterns, site selections, 
and the like incorporate within the schools the segregative 
results of public and private residential discrimination, 
such school officials become liable for the racial segrega­
tion within the schools.8

As this Court noted in Sw ann  v. Charlotte-M ecklenburg  
Board o f Education, 402 U.S. 1, 16 (1971), before the 
equity powers of the federal courts may be invoked to 
provide relief to students attending segregated schools, 
there must first be a showing of a constitutional violation:

.. . . .  judicial powers may be exercised only on the basis 
: of a constitutional violation . . . Judicial authority 

enters only when local authority defaults.

B. Under Established Federal Law, The California Regents 
W ere Perm itted to Initiate Voluntary Methods o f  
D esegregation to Elim inate Present Effects o f  Past 
Discrim ination

In Sw ann, supra, this Court found the powers of school 
officials to be plenary and held it to be within the broad 
discretionary powers of school officials to conclude, as an 
educational policy, that:

. . .  to prepare students to live in a pluralistic society 
each school should have a prescribed ratio of Negro

7 Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973).
8 Keyes, supra; Milliken v. Bradley, 418 U.S. 717 (1974).



7

to white students reflecting the proportion for the 
district as a whole,9

In North Carolina Board of Education v. Swann, 402 
U.S. 43, 45 (1971), decided on the same day as Swann v. 
Charlotte-Mechlenburg, supra, this Court affirmed its find­
ings with regard to the powers of school authorities and 
further stated that such officials may conclude:

. . . that some kind of racial balance in the schools is 
desirable quite apart from any constitutional require­
ment.

Thus, although there must first be a constitutional viola­
tion before a federal court may be called upon to order the 
desegregation of schools and other public institutions, 
school and other public officials may, within their plenary 
powers, take it upon themselves to voluntarily desegregate 
their institutions.

While this Court has never had occasion to determine 
whether such voluntary desegregation plans as have been 
adopted by school officials have been valid, both this Court 
and lower federal courts have consistently held that the 
recission of such voluntary desegregation plans by subse­
quently elected or appointed school officials is, in and of 
itself, a constitutional violation which warrants the inter­
vention of the federal courts.10

In the action now before this Court, the Regents at 
Davis acknowledged that the student enrollment at the

9 Id. at 16.
10 Brinkman v. Gilligan, 539 F.2d 1084 (6th Cir. 1976), cert, 

denied 423 U.S. 1000 (1976) ; Bradley v. Milliken, 484 F.2d 215 
(6th Cir. 1973) (en banc), aff’d in part and rev’d in part, 418 
U.S. 717 (1974) ; Oliver v. Kalamazoo, 508 F.2d 178 (6th Cir. 
1974), cert, denied, 421 U.S. 963 (1975).



8

school was almost exclusively white, and further, that this 
segregated condition was likely to continue, absent their 
intervention. In California, as in most other states, school 
authorities have plenary powers over the operation of the 
schools, including admissions and assignment powers.11 
Before initiating the special admission program, the 
Regents identified several factors which were contributing 
to the segregated condition of the school’s enrollment. In­
cluded among these factors was the use of quantitative 
data in admissions determinations, which data the Regents 
admitted did not truly measure the capabilities of minor­
ities and other persons from disadvantaged backgrounds.

In initiating the special admission program, the Regents 
were seeking to overcome the discriminatory results in­
herent in the regular admissions program and to provide 
minorities and other disadvantaged students with the op­
portunity to compete on an equal basis with students in 
the regular admissions program. A further stated purpose 
of the special admissions program was to promote diver­
sity within the student body and medical profession.12

It is thus clear that under the language of Swann v. 
Charlotte-Mechlenburg, supra, and North Carolina Board 
of Education v. Swann, supra, that while there has been no 
judicial determination as to whether the Regents Avere con­
stitutionally liable for the segregation at Davis prior to 
the initiation of the special admission program, the Regents 
were, in any event, permitted to voluntarily desegregate 
their institution.

In determining methods by Avhich public officials may 
desegregate their facilities, this Court has said:

11 See Crawford v. Board of Education of the City of Los 
Angeles, 17 Cal.3d 280, 130 Cal. Rptr. 724, 551 P.2d 28 (1976).

12 Declaration of Dr. George H. Lowery, p. 7.



9

There is no universal answer to complex problems of 
desegregation; there is obviously no one plan that will 
do the job in every case. The matter must be assessed 
in light of the circumstances present and the options 
available in every instance.

Green v. County School Board of New Kent County, 391 
U.S. 430, 439 (1968). Among the options available to state 
officials in remedying segregation is the use of race­
conscious criteria, as a starting point, in effecting a broader 
remedial plan. As this Court has noted:

Awareness of the racial composition of the whole 
school system is likely to be a useful starting point in 
shaping a remedy to correct past constitutional viola­
tions.

Swann v. Charlotte-Meclclenburg, 402 U.S. at 25,
The limited use of racial criteria, as one of a number of 
considerations used in weighing the applications of dis­
advantaged students seeking acceptance through the spe­
cial admissions program, is a wholly permissible device for 
desegregation.

II.
The Actions of the Regents Were Not Only Permitted, 

But Were Required Under California Law.

A. The Duty Owed

Since at least 1963, public officials in California, includ­
ing school authorities, have been required to eliminate 
segregation within public institutions regardless of the 
cause of such segregation. The elimination of the de jure/ 
de facto distinction in California was first set out in Jack- 
son v. Pasadena City School Dist., 59 Cal. 2d 876, 880, 31



10

Cal. Rptr. 606, 608-609, 382 P.2d 878, 880 (1963), where the 
State Supreme Court, in a unanimous decision, declared 
that:

[T]he segregation of school children into separate 
schools because of their race, even though the physical 
facilities and the method and quality of instruction in 
the several schools may be equal, deprives the children 
of the minority group of equal opportunities for ed­
ucation and due process of law.

Jackson and its progeny have consistently held that minor­
ity children suffer serious harm when their education takes 
place in segregated public schools and that such harm is 
equally present whether such segregation is de jure or 
de facto in nature. Id. at 59 Cal.2d 876, 31 Cal. R p t r . 606, 
383 P.2d 878; San Francisco Unified School District v. 
Johnson, 3 Cal.3rd 937, 92 Cal. Rptr. 309, 479 P.2d 669 
(1971); Santa Barbara Sch. Dist. v. Superior Court, 13 
Cal.3rd 315, 118 Cal. Rptr. 637, 530 P.2d 605 (1975). In 
Crawford v. Board of Education of the City of Los Ange­
les, 17 Cal.3d 280, 130 Cal. Rptr. 724, 551 P.2d 28 (1976), 
the California Supreme Court’s most recent decision in 
this area, the Court stated that:

. . . the importance of adopting and implementing 
policies which avoid “racially specific” harm to minor­
ity groups takes on special constitutional significance 
with respect to the field of education, because at least 
in this state, education has been explicitly recognized 
for equal protection purposes as a “fundamental in­
terest.” 17 Cal.3d at 297, 130 Cal. Pptr. at 734-735, 551 
P.2d at 38-39.

The Crawford Court then went on to quote from its de­
cision in Serrano v. Priest, 5 Cal. 3d 584, 96 Cal. Rptr. 601,



11

486 P.2d 1241 (1971), where it had emphasized that the 
“fundamental” nature of the right to an equal education 
derives in large part from the crucial role that education 
plays in “preserving an individual’s opportunity to com­
pete successfully in the economic market-place, despite a 
disadvantaged background . . . [T]he public schools of 
this state are the bright hope for entry of the poor and 
oppressed into the mainstream of American Society.” 5 
Cal. 3d at 609, 96 Cal. Rptr. at 619, 487 P.2d at 1259. Thus, 
based upon its previous holdings in Jackson and Serrano, 
the California Supreme Court in Crawford held that:

Given the fundamental importance of education, par­
ticularly to minority children, and the distinctive ra­
cial harm traditionally inflicted by segregated educa­
tion, a school board bears an obligation under article 
1, section 7, subdivision (a) of the California Constitu­
tion, mandating the equal protection of the laws, to 
attempt to alleviate segregated education and its harm­
ful consequences, even if such segregation results 
from the application of a facially neutral state policy.

17 Cal.3d at 297, 130 Cal. Rptr. at 735, 551 P.2d at 39.
While Jackson and Crawford dealt with the obligations 

of school districts, those holdings have been expanded to 
impose upon other California public officials in some cir­
cumstances an affirmative obligation to design programs 
or frame policies so as to avoid discriminatory results. 
17 Cal.3d at 296-297, 130 Cal. Rptr. at 734, 551 P.2d at 38. 
See also, People v. Superior Court, 38 Cal. App. 3rd 966, 
113 Cal. Rptr. 732 (Court of Appeals 1974).

From this brief discussion of California law, several 
points become clear. First, as a predicate for liability, the 
de jure/de facto distinction has been abandoned in Cal­
ifornia. Consequently, a finding of past racially discrimina-



12

tory action is not necessary for the assumption of an 
affirmative duty by public officials to eliminate segregation 
within public institutions in the State. As the Court in 
Crawford found:

. . . local school boards are “so significantly in­
volved” in the control, maintenance and ongoing super­
vision of their school systems as to render any exist­
ing school segregation “state action” under our state 
constitution equal protection clause.

17 Cal.3d at 294, 130 Cal. Rptr. at 732, 551 P.2d at 36.
Secondly, public officials in California have been held, 

in numerous circumstances, to be under an affirmative duty 
to eliminate segregation within their respective institu­
tions. Thus, these officials must do more than merely ab­
stain from intentional discrimination. 38 Cal. App. 3rd 
966, 972, 113 Cal. Rptr. 732, 736. School officials in Cal­
ifornia have repeatedly been held to bear a constitutional 
obligation to take reasonable, feasible steps to alleviate 
school segregation regardless of its cause. Similarly, offi­
cials charged with formulating a panel for a grand jury 
selections have been found to :

. . . have an affirmative duty to develop and pursue 
procedures aimed at achieving a fair cross-section 
of the community. Id.

Third, to the extent that education is a “fundamental 
interest” in California, it would logically follow that school 
officials at all levels, i.e., elementary, secondary, college, 
and post-graduate, bear the same affirmative obligation to 
assure that equal opportunities exist within public educa­
tional facilities.

Finally, and most significantly in relation to the case 
now before this Court, the California Supreme Court has



13

repeatedly interpreted the State’s equal protection clause 
as guaranteeing to minorities and other victims of past 
discrimination the right to equal opportunities and access 
to public institutions in California. Applying these prin­
ciples to the case at bar, it is clear that the Regents’ 
actions were mandated by state law.

Having concluded that their 1968 and 1969 admissions 
policies were resulting in an almost exclusively white 
institution, and further concluding that such policies were 
not providing to minorities and other disadvantaged stu­
dents, equal opportunities for access to the medical school 
at Davis, the Regents were not only permitted under Cal­
ifornia law, but were required to take affirmative steps to 
alleviate such conditions. The record below clearly indi­
cates that the regular admissions policy serves to eliminate 
virtually all otherwise qualified minority applicants from 
admission to the School of Medicine. The record further 
establishes that in the opinion of the Chairman of the 
Admission Committee, such a condition was likely to con­
tinue under the then-existing admissions policy.13

Having acknowledged the segregated condition of the 
school, it was not necessary, under California law, for the 
Regents to make an inquiry into the causes of such segre­
gation. Clearly, under established case law of the state, 
the Regents bore an affirmative obligation to alleviate the 
segregation existing at Davis, regardless of the cause. It 
should be noted, however, that even though a finding of 
“state action” was not necessary before a duty to act was 
imposed upon the Regents, the record clearly establishes 
that the segregation at Davis in 1969 was not adventitious. 
Such a condition was clearly the result of specific policies 
of the university. While not specifically denying admission

18 Declaration of Dr. George H. Lowery, pp. 7-8



14

to minorities and other disadvantaged individuals, the ad­
mission criteria prior to the special admission program had 
an admittedly racially discriminatory effect. As Dr. Low­
ery stated in his Declaration:

Another reason special consideration may need to be 
given to minorities is that quantifiable data, such as 
the test scores and grades of applicants do not neces­
sarily reflect the capabilities of disadvantaged per­
sons.14

The use of the regular admission criteria and its effect 
upon minority and other disadvantaged applicants may be 
likened to the practice of school authorities in drawing 
school attendance zones and making student assignments. 
While such policies may, on their face, appear to be neutral, 
where the result is to incorporate and build upon residen­
tial segregation caused by public and private discrimina­
tion, racial neutrality is lost and such segregatory prac­
tices become illegal state action. Keyes, supra; Bradley, 
supra; Crawford, supra. Likewise, where university officials 
adhere to an admission policy which they acknowledge 
does not truly measure the capabilities of minority and 
other disadvantaged students, such officials are no longer 
free to continue to follow such policies, but must take 
affirmative steps to alleviate the segregatory results 
thereof.

B. The Method Chosen
School official have considerable discretion in devising 

method to eliminate segregation within California schools. 
As the California Supreme Court recently stated in Craw­
ford v. City School District of Los Angeles, supra at 17 
Cal.3d at 305-306, 130 Cal. Rptr. at 724, 551 P.2d 45:

14 Declaration of Dr. George H. Lowery, p. 8.



15

. . .  so long as a local school board initiates and imple­
ments reasonably feasible steps to alleviate school 
segregation in its district, and so long as such steps 
produce meaningful progress in the alleviation of such 
segregation and its harmful effects, we do not believe 
the judiciary should intervene in the desegregation 
process. Under such circumstances, a court thus should 
not step in even if it believes that alternative desegre­
gation techniques may produce more rapid desegrega­
tion in the school district . . .  In our view, reliance 
on the judgment of local school boards in choosing 
between alternative desegregation strategies holds so­
ciety’s best hope for the formulation of desegregation 
plans which will actually achieve the ultimate constitu­
tional objective of providing minority students with 
the equal opportunities potentially available from an 
integrated education.

The formulation of desegregation plans and programs do, 
by necessity, involve the use of race conscious criteria, and 
such criteria have been approved as a starting point by 
both California courts and this Court. Swann, supra; 
Keyes, supra; Crawford, supra.

It is indeed ironic that the same Court which, over 
seventeen years ago, abolished the de jure/de facto dis­
tinction as a requisite for the desegregation of its public 
school facilities, and six years ago declared that education 
in California was a “fundamental interest,” would strike 
down the special admission program, as implemented at 
Davis, as unconstitutional. Such a decision is clearly not 
consistent with a long line of cases previously decided by 
the California Supreme Court. The Court below attempts 
to distinguish Bahhe from its previous holdings in several 
ways. First, the Court found that absent any showing of



past discrimination, any preferential treatment of minori­
ties and other disadvantaged individuals is invalid. Yet, 
as already discussed, the California Supreme Court has 
long held that no showing of discriminatory or de jure 
action is necessary before public officials come under an 
affirmative duty to eliminate the segregation existing with­
in their respective institutions. Crawford, supra. More­
over, the racially discriminatory results of the regular 
admission policy were not only shown in the record below, 
but were admitted by the Regents. Thus, as already noted 
above, not only were the Regents permitted to initiate a 
voluntary desegregation program, they were required to 
do so under the law of the State.

A second objection of the Court belowT was that the spe­
cial admission program served to totally deprive Bakke of 
a medical school education solely because of his race. It 
is on this basis that the California Supreme Court distin­
guishes Bakke from school desegregation litigation. The 
distinction, according to the Court, is that in a school de­
segregation remedy, no child is absolutely deprived of an 
education, while that is exactly the loss suffered by Bakke 
as a result of the actions of the Regents. It can only be 
said that in finding that Bakke or any other medical school 
applicant has an absolute right to attend medical school, 
the California court erred. While education is a “funda­
mental interest” in California, no state court has yet inter­
preted such an interest to include an absolute right to 
attend medical school. Additionally, while the Court below 
states that no student attending schools in a system under­
going desegregation is precluded from attending school, 
the Court fails to note that such attendance, until a mini­
mum age, is compulsory under state law. Moreover, Bakke 
was in no way absolutely deprived of a right to attend medi­
cal school by the actions of the Regents; rather, he was



17

only precluded from attending Davis, beeause lie did not 
meet the admissions criteria.

As the California courts, as well as this Court, have 
held on numerous occasions, many remedies in a desegre­
gation plan may be exclusionary. For example, and as 
was noted in the dissent below, magnet schools have been 
upheld as valid desegregative tools.15 To be effective, how­
ever, these schools have to have controlled admissions pol­
icies to insure that the student population of the school 
will not become one-race, thus defeating the desegregative 
objective. The “magnets” used to attract students to these 
schools are usually specialized or unique programs or 
courses not offered in other schools in the district. Thus, 
a student who is precluded from attending a particular 
magnet school because his or her attendance there will 
negatively effect the desegregation of the school, suffers 
the same loss as Bakke, i.e., the “right” to attend a school 
of one’s choice.

Controlled transfers are also incorporated, in many in­
stances, in desegregation plans.16 Under this type of 
transfer, a student wishing to transfer to a particular 
school may do so only if such a transfer will promote de~

16 See, 18 Cal.3d at 73, 132 Cal. Rptr. at 707, 553 P.2d at 1179- 
1180 (Dissent) ; Hart v. Comm,. School Board of Ed. N.T. Sch. Dist. 
# 2 , 512 F. 2d 37, 42-43, 54-55 (2nd Cir. 1975); Spangler v. 
Pasadena City Bd. of Ed., 311 F.Supp. 501, 519 (C.D. Cal. 1970) ; 
Goss v. Bd. of Ed. of Knoxville, 301 F.2d 164, 168 (6th Cir. 1962), 
vacated on other grds, 373 IT.S. 683 (1963); Lee v. Macon County 
Bd. of Ed., 317 F. Supp. 103 (M.D, Ala. 1970) (three-judge court) ; 
Arvizu v. Waco Independent Sch. Dist., 373 F.Supp. 1264 (W.D. 
Tex. 1973), aff’d in part, revised as to other issues, 495 F.2d 499 
(5th Cir. 1974) ; Booker v. Special School Dist., # 1 , Minneapolis, 
351 F.Supp. 799 (D. Minn. 1972); Davis v. Baton Rouge Parish 
School Bd., 398 F.Supp. 1013 (D.La. 1975).

16 Cases cited note 15, supra.



segregation. That student, as Bakke, is denied attendance 
at a school of his or her choice because of race. Such 
controlled transfers likewise have been upheld by numerous 
courts as valid desegregation components.17 Therefore, 
the proposition that one may he excluded from the school 
of his choice on account of his race, in the context of a 
valid desegregation plan, is not new in the law. As a re­
sult, Mr. Bakke has suffered no constitutionally cogniz­
able harm.

C. Summary

The decision reached in the Court below is inconsistent 
with a long line of decisions of the same Court involving 
school desegregation. In California, public officials, includ­
ing school officials, have been since at least 1963, under 
an affirmative duty to alleviate racial segregation in their 
institutions regardless of the causes of such segregation. 
Moreover, while education has been declared to be a funda­
mental interest in California, no court in that state has 
interpreted the principle as providing every individual in 
the state the right to attend medical school. Indeed the 
fundamental interest in education to be protected is that 
minorities be afforded equal opportunities and access to 
integrated educational facilities in the State.

In section I-B and II A-B of the Argument portion of 
this Brief, pages 6-18, there is an extended discussion of 
the question of how the California Supreme Court has 
interpreted that state’s constitution. Under ordinary cir­
cumstances, such would be inappropriate here because this 
court only becomes involved when such an interpretation 
runs afoul of the Supremacy Clause of the United States 
Constitution. However, the discussion becomes essential 
because the California Supreme Court in effect held that

17 Cases cited note 15, swpra.



19

the 14th Amendment prohibits the regents of the univer­
sity from doing that which state law clearly requires. 
As we have shown, neither the due process nor the equal 
protection clause of the 14th Amendment contains any 
such prohibition.

The nobility of purpose behind the adoption of the 
special admissions program is conceded by all. That pur­
pose was to guarantee that from a large pool of appli­
cants, each of whom was wholly and fully qualified to 
pursue medical studies, and predictably, to perform satis­
factorily in the medical profession, at least a few would 
be from ethnic minority groups. This is not the case in 
which a qualified white person was rejected, while an 
unqualified ethnic minority person was accepted. Here, 
the 16 ethnic minority students were in every way qual­
ified as university medical students. Thus, the question, 
on a policy basis, is reduced to whether a court or the 
university should determine priority in the acceptance of 
students from the pool of qualified applicants. In a con­
stitutional sense, the question is whether the 14th Amend­
ment somehow dictates the order in which qualified ap­
plicants must be admitted to a state university’s medical 
school.

If the purpose of the special admissions program had 
been to exclude white persons from the medical school 
we would be the first to concede that it could not survive 
the strict scrutiny to which such racial classifications are 
traditionally subjected. Where, however, as here, the clear 
and express intent is to effectuate the original purpose 
of the 14th Amendment, the situation is vastly different.

Proof that the same test is not applied in all situations 
is demonstrated by a comparison of two cases. In Morgan 
v. Virginia, 328 U.S. 373, a Yirgina statute which re-



20

quired racial segregation in interstate commerce was in­
validated under the commerce clause. In Bob Lo Excur­
sion Co. v. Michigan, 333 U.S. 28, however, a Michigan 
statute was upheld under the same clause. Both affected 
interstate commerce, but the purpose of one was to re­
quire segregation, while that of the other was to prevent 
it. The difference in purpose was crucial.

In a number of recent cases this Court has weighed 
heavily the intent involved in state action under a 14th 
Amendment challenge. Such action has usually passed 
constitutional muster when the purpose was not to dis­
criminate because of race or color, even though such dis­
crimination may well have been an incidental result of 
the protested action. These cases recognize that in an 
immensely complicated society the vast complexities in­
volved in competing claims preempt any reasonable pos­
sibility that any affirmative action effort, no matter how 
great the need or just the cause, will function without 
incidental disadvantage to someone. Yet, this fact of 
life need not render a great university impotent to deal 
with the urgent task of bringing meaningful equality of 
opportunity to its constituency.

When we use the phrase “meaningful equality of op­
portunity” we imply an opportunity of which a person 
may take advantage. That is the meaning this Court gave 
the phrase in Lau v. Nichols, 414 U.S. 563 (1974). There, 
pupils of Chinese decent admittedly had a theoretical 
equality of opportunity to attend the public schools of 
San Francisco. That, however, was not enough. It was 
held that steps had to be taken to remove language bar­
riers so that these pupils could take advantage of the 
theoretical equal opportunity.

Here, we admit that from the outset all ethnic minor­
ities had a theoretical equality of opportunity to attend



21

the medical school at Davis. What happened was that 
the university itself found that for number of reasons 
unrelated to one’s ability to perform in school or in the 
profession certain ethnic minorities were being excluded. 
The special admissions program had as its sole purpose 
the correction of that situation. It was an effort to make 
the theoretical right to enter that medical school a mean­
ingful reality for those for whom it had previously been 
only a dream.

In its decision the California Supreme Court completely 
overlooked the original purpose of the 14th Amendment. 
Though much debate has been engaged in over the years, 
there is now a general consensus that the 14th Amend­
ment was originally a measure designed to facilitate the 
movement of former slaves into the mainstream of Amer­
ican life. Graham, Howard J., “Everyman’s Constitution”, 
State Historical Society of Wisconsin, 1968.

Congressional debates during the adoption of that 
amendment fully substantiates the foregoing determina­
tion of purpose. While we recognize the obvious fact that 
the benefits of equal protection and due process are the 
just due of all Americans of every race or color, we flatly 
assert that it is an outright perversion of the original 
intent of that sacred document to hold that, as a matter of 
law, it must now be altered from a shield for the pro­
tection of black people seeking entry into the mainstream 
of American life, into a sword for use in cutting off their 
legitimate hopes and aspirations to become professionals 
also, and not merely hewers of wood and drawers of water 
for a white society.



22

III.
The Use of Race Conscious Criteria For Admitting 

Qualified Minority Applicants to Scarce Educational 
Opportunities Is Not Rendered Unconstitutional by the 
Absence of a Judicial Finding of Past Discrimination.

The power of the federal judiciary to order race con­
scious remedies where past statutory or constitutional vio­
lations have been found has been firmly established, for 
it is precisely that finding of past illegal conduct which 
confers such jurisdiction upon the courts. Swann v. Char- 
lotte-MecMenburg Board of Education, 402 U.S. 1 (1971); 
United States v. Montgomery County Board of Education, 
395 U.S. 225 (1969); Hills v. Gautreaux, 425 U.S. 284 
(1976); Franks v. Bowman Transportation Co., 424 U.S. 
747 (1976); Beer v. United States, 425 U.S. 130 (1976); 
South Carolina v. Katzenbach, 383 U.S. 301 (1966); United 
Jewish Organizations of Williamsburgh, Inc. v. Carey,
-----  U.S. ----- , 45 U.S.L.W. 4221 (1977). Indeed, upon
a finding of illegal racial discrimination, it has been held 
that, “the court has not merely the power but the duty 
to render a decree which will so far as possible eliminate 
the discriminatory effects of the past as well as bar like 
discrimination in the future.” Louisiana v. United States, 
380 U.S. 145, 154 (1965).

This Court has recently held that the constitution does 
not require absolute color-blindness on the part of state 
officials in establishing electoral districts, but rather that 
they are permitted, even in the absence of a finding of past 
discriminatory conduct, to focus entirely upon race and 
ethnicity in their decisionmaking. United Jewish Organi­
zations of Williamsburgh, Inc. v. Carey, supra. The Carey 
case was not the first instance in which the Court has



23

enunciated this principle. In North Carolina Board of 
Education v. Swann, 402 U.S. 43 (1971), the Court was 
presented with a statute requiring absolute color-blind­
ness in assigning school children to schools, specifically 
prohibiting racial assignments “for the purpose of creat­
ing a balance or ratio of race, religion or national origins.” 
Id. at 44, n. 1. The Court struck the statute down, com­
menting that the “apparently neutral form” of the statute 
“against the background of segregation, would render il­
lusory the promise of Brown v. Board of Education . .
Id. at 45-46. The Court held that while the Constitution 
does not prescribe any particular racial mix or balance, 
state officials are permitted wide latitude to take race 
into account as a “starting point” in achieving a racial 
balance in the schools.

This principle of approving officially sanctioned, race 
conscious decisionmaking where past exclusion has been 
found by state or federal officials has been applied as 
well in the lower courts. In Southern Illinois Builders 
Association v. Ogilvie, 471 F.2d 680 (7th Cir. 1972), and 
Contractors Association of Eastern Pennsylvania v. Sec­
retary of Labor, 442 F.2d 159 (3rd Cir. 1971), cert, denied, 
404 U.S. 854 (1971), the use of race in the allocation of 
future employment opportunities was permitted in the ab­
sence of a judicial finding of past discrimination. In As­
sociated General Contractors of Massachusetts v. A ltshuler, 
490 F.2d 9 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974), 
the Circuit Court approved the use of race conscious cri­
teria imposed by state authorities which exceeded in 
scope the applicable federal regulations promulgated pur­
suant to an executive order. Recently, in EEOC v. A.T.ST.,
■----- F.2d ----- , 14 EPD Para. 7506 (3rd Cir. 1977), the
Court upheld the use of race in making promotions where 
it was required by a Consent Decree.



24

On the record of the present case before the Court, the 
Regents of the University of California made an emperical 
determination that the Davis Medical School would remain 
a white enclave unless racial or ethnic factors were taken 
into account in the admissions process. Its past conduct 
in 1968 and 1969 may not have resulted in a violation of 
the Fourteenth Amendment as articulated in Washington 
v. Davis, 426 U.S. 229 (1976), hut once realizing the 
ethnic impact and lack of utility of the selection criteria, 
its continued use of those criteria may well have met 
the standards articulated. In any event it is not neces­
sary for the Medical school to have engaged in uncon­
stitutional conduct before it is permitted to take steps 
to prevent such conduct from occurring in the fu­
ture. As this Court has repeatedly explained, the per­
missive scope of the Fourteenth Amendment is much 
broader when applied to state officials attempting to in­
tegrate a school or an electoral district than it is with 
respect to a federal court imposing a remedy for past 
unconstitutional conduct. North Carolina Board of Edu­
cation v. Swann, supra; United Jewish Organisations of 
Williamsburgh, Inc. v. Carey, supra. The decision of the 
California Supreme Court requiring color-blind decisions 
and prohibiting efforts to achieve racial balance would 
have the same effect as the statute struck down in the 
Swann companion case. Consequently, it must be reversed.



25

IV.
The Use of Race Conscious Selection Techniques For 

the Admission of Medical Students Is Authorized by 
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
§2000d et seq., in the Circumstances of This Case.

As part of the Civil Rights Act of 1964, Congress enacted 
Title VI prohibiting discrimination on account of race, color 
or national origin in the exclusion of persons from par­
ticipation in any program or activity receiving Federal as­
sistance.18 Enforcement responsibility was given to those 
Federal agencies which extend financial assistance, and 
with the approval of the President, they were empowered 
to issue rules, regulations or orders of general applica­
bility to achieve the objectives of the statute.19

The legislative history of Title VI clearly indicates that 
the purpose of the statute was to accomplish racial and 
ethnic integration of federally financed facilities as quickly 
as possible, relying heavily on the encouragement of volun-

18 Section 601 of Title VI provides:
No person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination 
under any program or activity receiving Federal financial 
assistance.

19 Section 602 of Title VI provides, in p a r t :
Bach Federal department and agency which is empowered to 
extend Federal financial assistance to any program or activity, 
by way of grant, loan, or contract other than a contract of 
insurance or guaranty, is authorized and directed to effectuate 
the provisions of section 2000d of this title with respect to 
such program or activity by issuing rules, regulations, or or­
ders of general applicability which shall be consistent with 
achievement of the objectives of the statute authorizing the 
financial assistance in connection with which the action is 
taken.



26

tary compliance. The House Report accompanying H.R. 
7152 noted that continued discrimination against Negroes 
was the “most glaring” problem to be addressed, and that 
while voluntary progress had been made on the State and 
local level, “it has become increasingly clear that progress 
has been too slow.” House Report No. 914, 1964 TJ.S. 
Code, Cong, and Admin. NewTs, p. 2393. Specifically dis­
cussing Title VI, the House report stated that federal 
agencies could utilize the termination of financial assistance 
as well as “any other means authorized by law” in enforc­
ing the statute. Id. at 2401. Congressional proponents of 
the bill recognized its applicability to increasing the rate 
of entrance of Negroes into medical schools,20 and oppo­
nents shared this recognition, stating in addition their 
concern for an expansive definition of “discrimination” as 
well as the burden which minority rights would cast upon 
the rights which the majority had always enjoyed.21

20 Seven Representatives submitted a joint statement of support 
for H.R. 7152 which accompanied the House Report. Their com­
mentary stated:

“Negro patients are denied access to hospitals or are segregated 
within such facilities. Negro doctors are denied staff privileges 
—thereby precluding them from properly caring for their 
patients. Qualified Negro nurses, medical technicians, and 
other health personnel are discriminated against in employ­
ment opportunities. The result is that the health standards 
for Negroes to become doctors or to remain in many commu­
nities, after gaining a medical education, is reduced. . . . Re­
grettable as it may seem, a number of universities and other 
recipients of these grants continue to segregate their facilities 
to the detriment of Negro education and the Nation’s welfare.” 
(Emphasis added) Additional Views on H.R. 7152 of Hon. 
William M. McCullouch, Hon. John V. Lindsay, Hon. William 
T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, 
Hon. Charles McC. Mathias, and Hon. James E. Bromwell, 
1964 U.S. Code Cong, and Admin. News, p. 2511.

21 The Minority Report accompanying H.R. 7152, characterizing 
the entire bill as “the greatest grasp for executive power conceived 
in the 20th century,” pointed out that “The right of boards of



27

Exercising the authority granted by Section 602 of Title 
VI, the Department of Health, Education and Welfare 
(hereafter, HEW) has published regulations effectuating 
its obligations under the statute and giving some guidance 
to financial recipients with respect to the kinds of dis­
crimination prohibited under the Act. The guidelines in 
effect in 1969, for example, prohibited discrimination in 
the provision of training or other services provided by 
recipients of federal support.22 The guidelines specifically 
applied to the admissions practices of institutions of 
higher learning,23 and the concept of racial or other dis-

trustees of public and private schools and colleges to determine 
the handling of students and teaching staffs” would be seriously 
impaired by Title V i’s strictures. Minority Report Upon Proposed 
Civil Rights A ct of 1963, Committee on Judiciary Substitute for 
H.R. 7152, 1964 U.S. Code, Cong, and Admin. News, p. 2433. The 
Minority Report of the House Judiciary Committee also expressed 
great concern that the concept of discrimination was not defined 
in the bill and that the concept of “racial imbalance” would be­
come a controlling factor in defining discrimination. I d .  at 2436. 
The Report additionally expressed concern that the granting of 
rights under the Civil Rights Act may curtail some of the advan­
tages which the majority had always enjoyed:

“In determining whether this bill should be adopted, it must 
be remembered that when legislation is enacted designed to 
benefit one segment or class of a society, the usual result is 
the destruction of coexisting rights of the remainder of that 
society. One freedom is destroyed by governmental action to 
enforce another freedom. The governmental restraint of one 
individual at the behest of another implies necessarily the 
restriction of the civil liberties and the destruction of civil 
rights of the one for the benefit of the other. . . .” Id .  at 2437.

22 45 C.P.R. §80.3(a) (1969) stated:
“No person in the United States shall, on the ground of race, 

color, or national origin be excluded from participation in, 
be denied the benefits of, or be otherwise subjected to dis­
crimination under any program to which this part applies.”

23 45 C.P.R. §80.4(d) (1) stated:
“In the case of any application for Federal financial assistance 
to an institution of higher education . . ., the assurance re-



28

crimination was referred to broadly as the utilization of 
any criteria which has the effect of excluding persons on 
account of race or which otherwise has the effect of de­
feating the objectives of the program.24

The regulations were republished each year essentially 
unchanged until 1973, when provisions were added to place 
an affirmative obligation upon recipients to correct the 
effects of past racial or ethnic exclusion, regardless of 
whether the recipient considered the past exclusion to 
have been discriminatory. From that year to date, re­
cipients were instructed that they “must take affirmative 
action to overcome the effects of prior discrimination” and 
that they “may take affirmative action to overcome the 
effects of conditions which resulted in limiting partieipa-

quired by this section shall extend to admission practices and 
to all other practices relating to the treatment of students.”

Appendix A to the regulations listed the types of programs to 
which the regulations applied, and included were a variety of 
grants for health and medical services, including teaching facilities 
for medical, dental, and other health personnel.

24 45 C.F.R. §80.3(b )(2 ) stated:
“A recipient . . . may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administra­
tion which have the effect of subjecting individuals to dis­
crimination because of their race, color, or national origin, 
or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respects 
individuals of a particular race, color or national origin.”

In the illustrative applications included in the regulations, ex­
clusion accomplished indirectly through the use of criteria having 
a disparate impact upon racial or ethnic groups were described: 

“A  recipient may not take action that is calculated to bring 
about indirectly what this part forbids it  to accomplish di­
rectly. Thus a State, in selecting or approving projects . . . 
may not base its selections or approvals on criteria which have 
the effect of defeating or of substantially impairing accom­
plishment of the objectives of the Federal assistance program 
as respects individuals of a particular race, color, or national 
origin.” 45 C.F.R. §80.5 (h).



29

tion by persons of a particular race, color, or national 
origin.” 26 Illustrative applications of these two new sec­
tions describe in some detail the affirmative obligations to 
correct for past exclusion, and the use of race or ethnicity 
as a corrective factor granting “special consideration” is 
specifically approved by HEW.26

26 45 C.F.R. §80.3(6) was added to the regulations stating:
“ (i) In administering a program regarding which the recipient 
has previously discriminated against persons on the ground 
of race, color, or national origin, the recipient must take affir­
mative action to overcome the effects of prior discrimination, 

“ (ii) Even in the absence of such prior discrimination, a re­
cipient in administering a program may take affirmative action 
to overcome the effects of conditions which resulted in limiting 
participation by persons of a particular race, color, or national 
origin.”

26 45 C.F.R. §80.5(i) and (j) were added, stating:
“ (i) In some situations, even though past discriminatory prac­

tices attributable to a recipient or applicant have been aban­
doned, the consequences of such practices continue to impede 
the full availability of a benefit. I f the efforts required of 
the applicant or recipient under §80.6 (d) . . . have failed to 
overcome these consequences, it will become necessary under 
the requirement stated in (i) of §80.3 (b) (6)  for such ap­
plicant or recipient to take additional steps to make the bene­
fits fully available to racial and nationality groups previously 
subject to discrimination. This action might take the form, 
for example, of special arrangements for obtaining referrals 
or making selections which will insure that groups previously 
subjected to discrimination are adequately served.

“ (j) Even though an applicant or recipient has never used 
discriminatory policies, the services and benefits of the pro­
gram or activity it administers may not in fact be equally 
available to some racial or nationality groups. In such cir­
cumstances, an applicant or recipient may properly give spe­
cial consideration to race, color, or national origin to make 
the benefits of its program more widely available to such 
groups, not then being adequately served. For example, where 
a university is not adequately 'serving members of a particular 
racial or nationality group, it may establish special recruit­
ment policies to make its program better known and more 
readily available to such group, and take other steps to provide 
that group with more adequate service.”



30

Title VI, like its legislative companion in the 1964 Civil 
Rights Act, Title VII, therefore was enacted with a 
broadly stated prohibition on discrimination. Congress 
relied upon administering agencies such as HEW to define 
discrimination and develop the mechanics of enforcement 
through regulation. Until 1973, HEW’s regulations did not 
contain references to remedial steps necessary to cure past 
exclusion of protected racial or ethnic groups, but they 
clearly established the “effects test” for defining what is 
and what is not a discriminatory practice under the stat­
ute. Since 1973, HEW’s regulations have left no doubt 
that in the distribution of federally financed programs 
and services, any criteria applied to exclude beneficiaries 
which has the effect of disproportionately excluding an 
identifiable racial or ethnic group is prohibited. Whether 
this exclusion has taken place in the past on account of 
purposeful discrimination or whether it has simply oc­
curred unintended is of limited distinction,27 the regula­
tions require corrective measures including race conscious 
decisions designed to include the groups previously ex­
cluded.

In Lau v. Nichols, 414 U.S. 563 (1974), the Court applied 
Title VI, as given substance by HEW’s regulations, to 
prohibit the exclusion of Chinese-speaking minorities in 
San Francisco from receiving a meaningful, federally 
financed education. Applying the agency’s regulations to 
the exclusionary language barrier, the Court stated that, 
“Discrimination is barred which has that effect even though

27 C.F.R. §80.5 (i) states that “it will become necessary” to take 
corrective measures where past discrimination has existed, while 
subsection (j ) states that such steps “may” be taken in the absence 
of past discrimination. It is significant to note, however, that sub­
section (j) ,  applying as it does to situations lacking a history of 
discrimination, is the more specific of the two subsections in terms 
of approving race conscious decisionmaking in the future to cor­
rect the effects of the past.



31

no purposeful design is present . . . ” Id. at 568. Thus, 
the Court has upheld HEW’s interpretation of what is 
prohibited by Title VI, adopting an “effects test” some­
what analogous to that held applicable to Title VII.28 
Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Although the Supreme Court of California refrained 
from reviewing the trial court’s decision as it was based 
in part upon Title VI, it is clear that the statute applied 
to the conduct of the Davis medical school and that any 
evaluation of Davis’ special admissions program must in­
clude the school’s Title VI obligations.

Utilization of the school’s traditional entrance criteria— 
an amalgam of grade point averages, Medical College Ad­
missions Test scores and interview performance29—have 
had a sharp exclusionary effect on identifiable minority 
racial and ethnic groups since the opening of the school. 
During the years 1968, and 1970-1974, a total of 429 stu-

28 Title VI and the implementing HEW  regulations are actually 
much broader than the Guidelines on Employee Selection Proce­
dures published by the Equal Employment Opportunity Commis­
sion under Title VII, 35 F.R. 1607 et seq. (1970). HEW  regula­
tions yui’rently provide that if the application of a particular 
criteria or standard has resulted in disproportionate exchision, 
remedial steps are to be taken. EEOC Guidelines, however, provide 
that if  an employment standard or criteria has a disproportionate 
effect, it may continue to be utilized despite that effect if  the 
standard or criteria has validity as defined in the Guidelines.

29 The regular admissions criteria as described in the opinion 
below were not always controlling, and variances were made from 
the “benchmark” ratings of candidates. Dr. Lowery, the admis­
sions officer, had the authority to override the committee selection 
process when some other factor such as a particularly strong recom­
mendation or a candidate’s marital circumstances so persuaded 
him. Deposition of George H. Lowery, CT-183. The California 
Supreme Court^ acknowledged that the alternate list of regular 
admissions applicants, used for selection of slots which first-round 
offerees refused, was not formulated in order of “benchmark” 
ratings.  ̂533 P.2d 1158. Selection from this alternate list was made 
at the discretion of the dean of admissions. D i d .



32

dents were admitted through the regular admissions pro­
gram. Only one of these admittees was black and 6 were 
Chieanos. State officials responsible for determining ad­
missions criteria could well he justified in determining, as 
they in fact did determine, that exclusive reliance upon 
traditional entrance standards would produce few, if any, 
minority medical students.30 This realization, based upon 
emperical data and without any further considerations, 
would stand the school in violation of 45 C.F.R. §80.3 (b) 
(2), particularly as illustrated in §80.5 (h), and subject it 
to a potential loss of federal assistance or litigation. By 
1973, when the statistical pattern of ethnic exclusion was 
well entrenched in the regular admissions program, and 
in addition when 45 C.F.R. §80.3(6) (i) and (ii) and §80.5 
(i) and (j) were added to the HEW regulations, there 
could be no doubt that a race conscious ameliorative device 
was not only authorized but required by Title VI.

The Davis medical school’s response to the disappoint­
ing absence of minority students was the implementation 
of its special admissions program—in effect, a reservation 
of 16 percent of available positions for applicants who were 
qualified in absolute terms for admission but who possessed 
the two additional characteristics of being disadvantaged 
and members of racial or ethnic minorities. This was done 
primarily in order to provide integrated learning experi­
ences for its students, and it was done with the knowledge

30 The emperical results of the first two years of admissions 
following the opening of the medical school would have alone led 
to this conclusion. The Davis medical school’s minority admissions 
after the first two years was also substantially below the 1969 
national average of 4.8 percent, a national average greatly de­
plored by the Association of American Medical Colleges. See, 
“Report of the Association of American Medical Colleges Task 
Force to the Inter-Association Committee on Expanding Educa­
tional Opportunities for Blacks and Other Minority Students,” 
(Washington: AAMC, April 22, 1970).



33

that the “objective” regular admissions criteria bore little 
relationship to any student’s performance in medical 
school.31

The medical school’s special admissions program was a 
blunt but effective means of avoiding the exclusive reliance 
upon “criteria or methods of administration which have the 
effect of subjecting individuals to discrimination because 
of their race, color, or national origin,” 45 C.F.R. §80.3(b) 
(2) (1969). Subsequent additions to HEW regulations 
governing the Davis medical school made it crystal clear 
that the special admissions program with its racial and 
ethnic criteria of application was precisely the “special 
consideration to race, color, or national origin” required 
of the medical school in order “to make the benefits of its 
program more widely available to such groups, not then 
being adequately served.” 45 C.F.R. §80.5(j) (1973).

The race conscious admissions program is therefore 
approved by the HEW regulations published pursuant to 
statutory authority, Lau v. Nichols, supra, the statutory 
foundation for the regulations is well within Congress’ 
legislative domain, and the regulations are reasonably re­
lated to the statutory objective—the hasty elimination of 
racially segregated training opportunities financed by the 
federal government.

81 Dr. Lowery acknowledged that only one of the four scores 
computed from the Medical College Admissions Test correlated 
with academic performance in the first two years of medical school. 
Deposition of George H. Lowery, CT-152. He stated, “there is not 
very much correlation beyond that.” I  bid.



34

CONCLUSION

W h er efo r e , for the reasons stated above, Amicus re­
spectfully urges the Court to reverse the decision of the 
Supreme Court of the State of California below.

Respectfully submitted,

N a t h a n ie l  R. J ones 
General Counsel

W illia m  D . W ells  
Assistant Counsel

T h eresa  D e m c h a k  
Special Counsel

N a t h a n ie l  S . Colley

West Coast Regional Counsel
National Association for the 
Advancement of Colored People 
1790 Broadway—10th FI.
New York, New York 10019

S ta nley  G oodman 
Law Intern



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