Board of Education of the City of Chattanooga, Tennessee v. Mapp Brief in Opposition to Certiorari

    i (

IN THE

8upraiu» Olimri' i\i tip United S tate
October T erm , 1976

No. 76-811

T h e  R egents of th e  U niversity of California ,
Petitioner,

v.
Allan B akke , Respondent.

On Peiition for a Writ of Certiorari io ihe 
Supreme Court of Ihe Staie of California

%

BRIEF OF AMICI CURIAE

BOB The National Urban League; the National Organiza­
tion for Women (NOW); the United Automobile, 
Aerospace, and Agricultural Implement Workers of 
America (UAW); the National Conference of Black 
Lawyers; the La Baza National Lawyers Association; 
the Mexican American Legal Defense and Educational 
Fund; the Puerto Rican Legal Defense and Educa­
tional Fund; California Rural Legal Assistance, Inc.; 
the National Bur Association, UCLA Black Alumni 
Association, the National Federation of Women’s Or­
ganizations; UO Davis Law School. Chicano Alumni 
AssocmPon: the Charles Houston Bar Association; the 
National Lawyers Guild; La Raza National Law Stu­
dents Association; Black American Law Student Asso­
ciation

i



<

IN THE

(Emtrl nf tlj£ UttttTfc States
O ctober Term, 1976

No. 76-811

T h e  R egents of t h e  U niversity of California, 
Petitioner, 

v.
Allan  B ak k e , Respondent.

On Petition for a W iil of Certiorari lo ihe 
Supreme Court of the Stale of California

BRIEF OF AMICI CURIAE

FOR The National Urban League; the National Organiza­
tion for Women (NOW); the United Automobile, 
Aerospace, and Agricultural Implement Workers of 
America (UAW); the National Conference of Black 
Lawyers; the La. Raza National Lawyers Association; 
the Mexican American Legal Defense and Educational 
Fund; the Puerto Rican Legal Defense and Educa­
tional Fund; California Rural Legal Assistance, Inc. ; 
the National Bar Association, UCLA Black Alumni 
Association, the National Federation of Women’s Or­
ganizations; UC Davis Law School, Chicano Alumni 
Association; the Charles Houston Bar Association; the 
National Lawyers Guild; La Raza National Law Stu­
dents Association; Black American Law Student Asso­
ciation

E mma Coleman J ones 
King Hall
Davis, California 95616 
(916) 752-2758

(Other counsel

P eter D. B oos 
Mexican American Legal 

Defense and Educational 
Fund

145 Ninth Street 
San Francisco, California 94103 
(415) 864-6000 

listed inside front cover)
<■•361

I



S tephen I. S chlossberg 
United Auto Workers 
1125 15th Street, N.W. 
Washington, D.C. 20005 
(202) 296-7484
F rank J . Ochoa, J r.
La liaza National Lawyers Assoc. 
809 8th Street
Sacramento, California 95814 
(916) 446-4911

T omas Olmos 
Michele W ashington 
Western Center for 

Law & Poverty
1709 West 8th Street, Suite 600 
Los Angeles, California 90017 
(213) 483-1491
L ennox H inds 
126 West 119th Street 
New York, N.Y. 10027

Of Counsel:
J oseph L. R a uh , J r.
1001 Connecticut Ave., N.W. 
Washington, D.C. 20036
S tephen P. B erzon
1520 New Hampshire Ave., N.W.
Washington, D.C. 20036

A lbert H. Meyerhoff 
R alph S antiago A bascal 
California Rural Legal 

Assistance, Inc.
115 Sansome Street, Suite 900 
San Francisco, California 94104 
(415) 421-3405
Charles R. L awrence III 
University of San Francisco 

School of Law
San Francisco, California 94117 
(415) 666-6986
J eanne Miner 
National Lawyers Guild 
853 Broadway 
New York, N.Y. 10003 
(212) 260-1360
B lack A merican
L aw S tudent A ssociation

i



TABLE OF CONTENTS

Page
I nterest oe A mici Curiae ...................................................... 2

I. Introduction ....................................................  6
II. As a result of Bakke’s lack of standing to sue, 

no case or controversy exists herein as required 
by Article III ..................................................  7
A. The Requirements of Article I I I ................ 7
B. The Facts of This Case Do Not Comport With

the Article III Requirement ......................  9
1. The Application Process ........................  9
2. The Bakke Applications.......................... H

C. The “ Stipulation” by the University Is an
Effort to Fabricate Jurisdiction in This 
Court ........................................................... 23

111. Because the issue on the merits is so important 
to the entire nation, this case should not he dis­
posed of on the merits on the basis of such a 
sketchy record.............    29
A. A Fully Developed Record Is Essential To a

Reasoned and Principled Judgment in This 
Case ............................................................. 29

B. The Record ................................................  23
1. The Evidence Presented by the University 23
2. The Evidence Not Presented by the Uni­

versity .................................................... 23

Conclusion ................................................................................. 27

A ppendix A ................................................................ 2a

A ppendix B ................................................................  9a



11

TABLE OF AUTHORITIES
CaseS: Page
Arlington Heights v. Metropolitan Housing Corp.,

— U.S. — (January 11, 1977) (Slip. Opp. at E538- 
^42) .................................................................... g

Associated General Contractors of Mass., Inc v Alt­
shuler, 490 F.2d 9, cert, den., 416 U.S. 957 (1st Cir.
1973) ................................................................. 20 24

Bakke v. Board of Regents of the University of Cali­
fornia, 18 Cal. 3d 34 (1976) ..................... 22 26

Brown v-Board of-Education, ,347- U.S. 483 (1954)’!.. ’ 6 
Contractors Assn, of Eastern Penn. v. Secretary of 

Labor, 442 F.2d 159 (3rd Cir., 1971), cert. den.
404 U.S. 845 (1971) .............................  24

BeFunis v. Odegaard, 416 U.S. 312 (1974) . . . 1 9 ' 2 4  25
Flast v. Cohen, 392 U.S. 83, 99 (1968)..........  ’ ’ 7
Hatch v. Reardon, 204 U.S. 152, 160 (1907) . .'.’.’.’ ’ ’ ’ 7 
Jackson v. Pasadena City School District, 59 Cal. 2d

876 (1963) .........................................  2g
Kahn v. Shevin, 416 U.S. 351 (1974) . . . . . . ............... ' 04
Lau v. Nichols, 414 U.S. 563 (1974) .......... 25 26
Lehon v. City of Atlanta, 242 U.S. 53 (1916)............. ’ 7
Lord v Veazie, 49 U.S. (8 How.), 251, 255 (1850) ’.’.’ 18
Massachusetts v. Pamten, 389 U.S. 560, 561 (1968) 94
Morales v. State of New York, 396 U.S. 102, 104-06

(1969) .................  29
Muskrat v. United States, 219 U.S. 346 (1911)............ ]8
Naim v. Naim, 350 U.S. 891 (1956) . . 21
Newsoin v. Smyth. 365 U.S. 604, 604-05 (1961).............. 9i
Poe v. Ullman, 367 U.S. 497 (1961) ........... . ............ o2
Rescue Army v. Municipal Court, 331 U.S. 549* (1947) 21
Richardson v. Ramirez, 418 U.S. 24, 36 (1974) ..........  1(3
Schlesinger v. Reservists to Stop the War 418 US

208 (1974) ..........................~..............J ]8
Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972)’. ' 8
Simon v. Eastern Kentuckv Welfare Rights Organiza-

_ tion, — U.S. —, 96 S.Ct. 1917..................... 8 13 94
Smith v. Mississippi, 373 U.S. 238 (1963)............... ’ ' ’ 21
Swift & Co. v. Hocking Valiev Ry. Co., 243 U S ”282

289(1917) ...................14
United States v. Richardson, 418 U.S. 166 (1974)’...' . 8,18



Table of Authorities Continued iii

Page
Wainwright v. City of New Orleans, 392 U.S. 598 

(1967) .................................................................  21
AVarth v. Seldin, 422 U.S. 490 (1975) ...................8,13,18
Washington v. Davis, — U.S. —, 96 S.Ct. 2040 (1976) 25

R egulation :
Executive Order No. 11246, 30 Eed. Reg. 12319 (Sept.

24, 1965) ..............................................................  20

Miscellaneous :
Bickel, Alexander, T he L east D angerous B ranch ; The 

Supreme Court at the Bar of Politics, Bobbs-Mer- 
rill, 1962, 169-82 ......................................... _......... 20

California Assembly, Spec. Subcomm. on Bilingual- 
Bicultural Education, “ Toward Meaningful and 
Equal Educational Opportunity: Report of Hear­
ings on Bilingual-Bicultural Education (July,
1976) ........................................................... .. .. 26

Educational Testing Service, Law School Validity
Study Service, 21 (1973) .................................. '. 26

Feitz, “ The MCAT and Success in Medical School”, 
Sess. #■’ 9.03, Div. of Educ. Meas. and Research,
AAMC (rnimeo) .................................................. 25

Frankfurter, A Note on Advisory Opinions, 37 Harv.
L. R ev. 1002, 1006, n. 12 (1924) ......... ................  7

Griswold, Some Observations on the DeFunis Case, 75
Colum. L. R ev. 512, 514-515 (1975) ..................... 26

Pollack, “ DeFunis Est Non Disputandum”, 75 Colum.
L. R ev. 495, 509 (1975) .......................................  20

Simon, Performance of Medical Students Admitted 
Via Regular and Admissions-Variance Routes, 50 
J. Med. E d. 237 (March, 1975) ...........................  25

!

t



2

INTEREST OF AMICI CURIAE 1

The National Urban League, Inc., is a charitable 
and educational organization organized as a not-for- 
profit corporation under the laws of the State of New 
York. For more than 65 years, the League and its 
predecessors have addressed themselves to the prob­
lems of disadvantaged minorities in the United States 
by improving the working conditions of blacks and 
other minorities, by fostering better race relations 
and increased understanding among all persons, and 
by implementing programs approved by the League’s 
interracial board of trustees.

The NOW Legal Defense and Educational Fund 
is the litigation and education affiliate of the National 
Organization for Women. NOW is a national mem­
bership organization of women and men organized 
to bring women into full and equal participation in 
every aspect of American society. The organization 
has a membership of approximately 30,000 with over 
five hundred chapters throughout the United States. 
Many of its members are university women faculty 
and students.

The UAW is the largest industrial union in the 
world, representing approximately a million and a 
half workers and their families. Including wives and 
children, UAW represents more than UA million per­
sons throughout the United States and Canada. The 
UAW, which is deeply committed to equal opportunity

1 Letters of consent from counsel for the petitioners and the 
respondents have been filed with the Clerk of the Court.



3

and anti-discrimination, does much more than bar­
gain for its members. I t is by mandate of its Consti­
tution and tradition deeply involved in the larger issues 
of the quality of life and the improvement of demo­
cratic institutions. The question presented by this case 
vitally affects the UAW and its members.

The National Conference of Black Lawyers, through 
its national office, local chapters, cooperating at­
torneys and the law student organization, has (1 ) 
carried on a program of litigation, including defense 
of affirmative suits on community issues; (2) moni­
tored governmental activity that affects the blac' 
community, including judicial appointments, and the 
work of the legislative, executive, judicial and adminis­
trative branches of government; and (3) served the 
black bar through lawyer referral, job placement, con­
tinuing legal education programs, defense of advo­
cates facing judicial and bar sanctions, and watchdog 
activity on law &enool admissions and curriculum.

La Baza National Lawyers Association is a nation­
wide group of attorneys of Mexiean-American heri­
tage The Association is committed to working for the 
movement toward equality of Mexican Americans in 
American society. To achieve this end, the Association 
is committed to increase the admission of Mexican- 
Americans to law schools and the legal profession in 
order that the legal needs of Mexican-Americans can 
be represented to the fullest in the courts of our nation.

The National Lawyers Guild is an organization 
founded in 1937 with over 5,000 members. I t  works to 
maintain and protect civil rights and civil liberties.

I



4

IJ.C. Davis Law School, Chicano Alumni Association 
is a group of Chicano graduates of the Martin Luther 
King, Jr. School of Law at U.C. Davis. The Associa­
tion’s goals are twofold: (1) To operate as a forum for 
communication for Chicano law graduates in order 
that they can work for the social betterment of the 
Chicano people; and, (2) to maintain communication 
with Chicano law students at the Davis Law School in 
order to assist the students in the areas of admis­
sion, retention and graduation.

The U.C.L.A. Black Alumni Association is com­
posed of graduates of the U.C.L.A. special admissions 
program who are interested in the continuing vitality 
of the special admissions programs as one vehicle of 
assuring representation of minorities in the Univer­
sity’s graduate schools. In conjunction with the Uni­
versity, this Association has a continuing interest in 
maintaining such programs.

The Mexican American Legal Defense and Educa­
tional Fund is a privately funded civil rights law firm 
dedicated to insuring that the civil rights of Mexican 
Americans are properly protected; a major thrust of 
their effort has been in the area of education, includ­
ing higher education, for which they have established 
a Task Force of prominent Mexican Americans to ad­
vise them. They filed an amicus brief in the instant 
case when it was pending in the California Supreme 
Court.

The Puerto Rican Legal Defense and Educational 
Fund is a privately funded civil rights law firm dedi­
cated to insuring that the civil rights of persons of 
Puerto Rican ancestry are fully protected. They have 
been greatly involved in education litigation on behalf 
of Puerto Rican students.



5

National Bar Association, Inc., was formally orga­
nized in 1925. I t  consists of jurists, lawyers, legal 
scholars and students whose purpose and programs 
have sought to combat the effects of racial discrimina­
tion and to advance the realization of the goal of first 
class citizenship for all Americans. The membership 
of the Association has successfully advanced the in­
terests of minority citizens in the areas of housing, 
employment, education, voting, and protection of the 
rights of criminal defendants.

La Baza National Law Students Association is a 
nationwide group of Chicano and Latino law students 
organized for the following purposes: 1 ) to recruit 
Chicanos and Latinos to attend law schools; 2) to as­
sist in the retention of Chicano and Latino law stu­
dents once they are admitted to law school; and 3) to 
promote the provision of legal services to Chicano 
and Latino communities throughout the nation.

Charles Houston Bar Association is an association 
principally comprised of Black attorneys in North­
ern California. I t is an affiliate of the National Bar 
Association, a nationwide association of Black attor­
neys and students. Charles Houston Bar Association 
has been actively involved in promoting and protect­
ing the civil rights of all minorities. I t includes among 
its members, judges, attorneys and law professors, and 
has a close relationship with minority student associ­
ations.

California Rural Legal Assistance, Inc., is an oi- 
ganization funded under the Legal Services Corpora­
tion Act to provide legal assistance to low-income in­
dividuals. A high proportion of its clients are mem­
bers of racial minority groups, and a good deal of its

/



6

efforts have been directed toward combatting the ef­
fects of facial discrimination against these clients in 
many segments of American society.

BALSA was founded in 1968 in NY and has 7,000 
Black law students among its membership. Its purpose 
is to articulate and promote goals of Black American 
law students, encourage professional competence and 
instill in the Black attorney and law student a greater 
awareness of and commitment to the needs of the Black 
community.

I.
INTRODUCTION

Whether the Constitution will permit the use of 
affirmative efforts by institutions of higher education 
to overcome historical discrimination and segregation 
of racial minorities is an issue of vital importance, 
both to amici, and to the American society at large. 
The Court’s resolution of the issue presented in this 
case may determine the future course of integration 
efforts not only in the medical profession, but in other 
professions and the educational avenues leading to 
them. Such a decision will have a dramatic and long­
term impact on civil rights and race relations for fu­
ture decades in this country. The resolution of this 
issue may in many ways approach in importance the 
landmark decision, Brown v. Board of Education 347 
U.S. 483 (1954).

Although desirous that this important issue be 
finally resolved, amici strongly urge that a decision not 
be rendered in the case at bar. I t is essential that this 
issue may be resolved in a case where a spirited conflict 
between the parties has resulted in a fully developed



7

record upon which to base such an important decision. 
The crux of amici’s position is that instead petitioners 
have attempted, to “ stipulate” to this Court s jurisdic­
tion in order that they can seek an advisory opinion on 
this critical issue in a case with a sparse record and 
without the presence of a case or controversy as man­
dated by Article I I I  of the United States Constitution. 
An issue of this magnitude simply cannot be resolved 
in a case which severely lacks “ that concrete adteise- 
ness which sharpens the presentation of issues upon 
which the Court so largely depends for illumination of 
difficult constitutional questions” . Flast v. Colien, 392 
U.S. 83, 99 (1968).

II.
AS A RESULT OF BAKKE'S LACK OF STANDING TO SUE, NO 
CASE OR CONTROVERSY EXISTS HEREIN AS REQUIRED BY 
ARTICLE III

A. The Requirements of Article III.

In a formulation of the rule directly applicable to 
the facts of this case, this Court in T1 last v. Cohen, 
supra, at 99 stated the requirement of standing as a 
constitutional prerequisite to federal jurisdiction:

The fundamental aspect of standing focuses on 
the party seeking to get his complaint before a fed­
eral court and not on the issues he wishes to have 
adjudicated.2

2 As Mr. Justice Frankfurter stated:
One must oneself be made a victim of a law (Lclion v. City 
of Atlanta, 242 U.S. 53 (1916)) or belong to the class ‘for 
whose sake the constitutional protection is given’ (Hatch v. 
Reardon, 204 U.S. 152, 1G0 (1907)) to be able to invoke 
the Constitution before the Court. Frankfurter, A Note on 
Advisory Opinions, 37 Harv. L. Rev. 1002, 1006, N. 12 (1924).



8

Last term this Court reiterated this rule as follows:
• : • The standing question in its Art. I l l  aspect 
“ is whether the plaintiff has 'alleged such per­
sonal stake in the outcome of the controversy’ as 
to warrant his invocation of federal court juris­
diction and to justify exercise of the court’s reme­
dial powers on his behalf.” Worth v. Seldin, 422 
U.S. 490, 498-499 (1975) (emphasis in original). 
In  sum, when a plaintiff’s standing is brought into 
issue the relevant inquiry is whether, assuming 
justiciability of the claim, the plaintiff has shown 
an injury to himself that is likely to be redressed 
by a favorable decision. Absent such a showing, 
exercise of its power by a federal court would be 
gratuitous and thus inconsistent with the Art. I l l  
limitation. Simon v. Eastern Kentucky W  It 0

U .S .----- , ----- , 96 S.Ct. 3917,----- , (1976)'!
Accord Sierra Club v. Morton, 405 U.S. 727, 734- 
35 (1972) ; United States v. Richardson, 418 U S 
166, 174 (1974).3

This causation requirement is not met by the facts of 
this case. This Court’s jurisdiction can only be exer­
cised if it is shown, first, that Bakke suffered a “ spe­
cific harm” to himself as “ the consequence” of the 
Task Force program at U.S. Medical School, Wartli 
\. Seldin, supra, at 505 (1975). No such showing has 
or could be made. To the contrary, as strongly sup­
ported by the evidence in the record and as specifically 
stated in the trial court’s findings, “ plaintiff would not 
ha\ e been accepted for admission to the class entering 
the Davis Medical School . . . [in 1973 and 1974] even

8 Just this week, the Court once again reaffirmed the Warth-Simon 
principle that an “ actionable causal relationship” must be demon­
strated between the challenged conduct and the asserted injury.
Arlington Heights v. Metropolitan Housing Corp.,___ US ___ 1
(January 11, 1977) (Slip. Opp. at B538-B542). ’



9

if there had been no special admissions program.” 
(Pet, for Cert., Ajrp. F. p. 116a.)

B. The Facts of This Case Do Noi Compori with ihe Ariicle III 
Requirement.

Mr. Bakke applied to the Davis Medical School in 
1973 and 1974. In each of these years, he was not se­
lected for any of the 84 regular admission positions 
available.4 It is his contention that he wquld have been 
admitted had (lie 16 Task Force positions been opened 
and available to regular applicants. In short, this 
proposition is premised on the belief that his applica­
tion was among the top 16 regular applicants not ad­
mitted. The evidence in the record reveals Bakke’s 
premise to be totally without foundation.

1. The application process.
In order to understand why it is relatively, easy to 

make such an assertion, it is necessary to realize that 
all applicants were given a “ Benchmark score” which 
was the primary tool for comparing candidates. This 
Benchmark score was a composite of many factors in­
cluding scores on the MCAT examination, grade point 
average, and evaluations flowing from various inter­
views. Testimony indicates that with only minor excep­
tions, not relevant to Bakke, an applicant with a 
higher Benchmark score was admitted over one in the 
same batch with a lower score (CIV 63-64). This was 
true, only with respect to those applications which

4 In 1973, there were in fact 85 regular admission positions and 
15 Task Force positions. This recently discovered fact was not 
reflected in the trial court record. See n. —, infra.

5“ Ct ”  References are to the Clerk’s Transcript filed in the 
California Supreme Court.

|



10

were considered within the same period of time be­
cause it was tiie practice to evaluate the applications in 
“ batches” (CT. 63-64). In the first month in which 
acceptances were made, applications then on file would 
be evaluated in order to send out early offers.

After a sampling of acceptances were received, 
which would indicate an acceptance rate adequate to 
fill the number of spaces still available, all of the pre­
viously received applications which were competitive 
but had not prompted offers would be compared with 
recently received applications and a second round of 
offers would go forth to fill the remaining slots. The 
applications thus on file in January would be evaluated 
against each other. The applicants with the highest 
Benchmark scores receive offers. The applications on 
file during successive rounds would likewise be evalu­
ated and offers would go to those with the highest 
Benchmark scores. Thus, the two determinative factors 
in the decision-making process were the Benchmark 
score that the applicant was given and the time when 
the application was considered. At the conclusion of 
this process, the remaining students, who were numer­
ically close to admission, were placed on an alternate 
list. Inclusion on the alternates list was not based on 
strict numerical rankings. The Dean of Admission had 
discretion to admit persons who would bring special 
skills. I t  should be noted that the Dean in neither year 
exercised his discretion to place Bakke on the alternate 
list (CT. 64). This then is the basic framework from 
which the Dean of Admission in uncontroverted testi­
mony and the trial court, on the basis of such testi­
mony, was able to determine that Mr. Bakke would not 
have been admitted even in the absence of the Task 
Force program.



11

2. The Balcke applications.
Bakke’s 1973 application, his first, was not received 

until “ quite late”, and was thus prejudiced by the fact 
that a substantial number of the positions had already 
been filled (CT. 6-1). Earlier applicants, regular as 
well as Task Force, had been accepted for admission 
prior to consideration of Bakke’s application (CT. 
54, 181). Thus, his application was competing for an 
otherwise more limited number of remaining positions 
against a larger number of competitors. Mr. Bakke’s 
1973 Benchmark score was 468. As the Dean of Ad­
mission stated, “ [i]n filling the 100 spaces in the class 
no applicants with ratings below 470 were admitted 
after Mr. Bakke’s evaluation was completed”. (CT 
69).

Assuming that none of the Task Force admittees 
had been able to meet the regular admission standards 
and that all 16 positions were available, the Dean of 
Admissions has unequivocally stated that Bakke would 
nevertheless have been denied admission:

“ Indeed, Plaintiff would not even have been 
among the 16 who would have been selected assum­
ing that all of the places reserved under the spe­
cial admissions program had been open following 
Plaintiffs’ evaluation. Almost every applicant of­
fered a place in the class after the middle of May 
attends the medical school. There were 15 appli­
cants at 469 ahead of Mr. Bakke and he would not 
have been among the top applicants at 468 because 
he was not a 468 put on the alternates list as he 
had no special qualifications or new information 
upgrading his score.”
(CT. 70).

Indeed there were twenty students in 1973 who like 
Bakke had 468, some of whom were jdaced on the al-

i



12

ternates list due to special qualifications (CT. 70) 
t thus is certain that at least 16 persons had priority 

over Mr Bakke in 1973 and, thus, as the trial court 
ound, the demise of the Task Force program would 

not have resulted in his admission.

-,n^he e7 dence is even str°nger regarding Bakke’s 
1974 application. His 1974 Benchmark score was 549 
out of 600. The record shows that there were a total of 
20 applicants on the alternates list who would have 

een selected for any additional positions. Once again, 
Bakke was not on the alternates list in 1974. Further­
more there were an additional 12 applicants, not on 
the alternates list, with numerical ratings above 
Bakke s 549 (CT. 71). Thus, there were at least 32 
applicants who were ahead of Bakke for the 16 pos 
sible positions. As the Dean of Admission stated, in 

dld 110t even “ come close to admission”( C l .  <1).

An additional factor which would have operated against
T<Wke ®aP-?+hCatl0n f  the dof,nite Possibility that some of the Task 
1 orce admittees would have been able to gain admission under the 
reguiar admissions process. While there are no numerical ratings 
of Task Force admittees available, the record does disclose that the 
oveiall grade point average of such admittees ranged un to 3 76

grade point averages ranging up to 3.45 and science grade point 
averages rangmg up to 3.89 (CT. 178. 223). Bakke’s scores were 
"  and 3‘4̂  respectively. (CT. 115). Thus, in both 1973 and 1974

paTsedThat of B I?1'06 aPpl!,cant8 whose 8Tades equalled and sur- 
Pa).' d tha? ,of Bakke and who could have met certain of the non-
a t te  thmC1FinniiS1 I"11,0’1 S I 01’8 makhlg their «PPlications more lhactne. 1 mally, it should be noted that in 1973 Bakke was

emed admission at 10 other Medical Schools to which he applied
(Bowman-Gray, University of South Dakota, University of Gin-
U C L A  San °F atG- Georgetown University, Mayo,

tt’ • an. Brancisco> Stanford and his undergraduate alma 
mater, University of Minnesota) (CT. 48-49).



13

In  conclusion, the uncontrovertecl evidence strongly 
supports the finding of the trial court that the Task 
Force program had no effect on Bakke’s application in 
that lie would have been denied admission regardless 
of the program’s existence.

As in Warth, where the facts failed to show that the 
restrictive zoning practices resulted in plaintiffs’ ex­
clusion, here the record is equally devoid of any facts 
showing that the Task Force program resulted in 
Bakke’s exclusion from the Davis Medical School No 
showing is possible that “ but for” the Task Force pro­
gram, Bakke would have been admitted. In short, no 
“ casual relationship” exists on these facts. Wartli 
supra, 422 U.S. at 407.

Bakke is simply not within the class of persons 
affected by the policy he seeks to challenge. The parties 
seek a “ gratuitous” decision of complex and vitally 
important issues in this case “ inconsistent with the
Article I I I  limitation”. Simon, supra,___ U S ____
96 S.Ct. 1917.

C. The 'Stipulation" By the University is an Effort to Fabricate
Jurisdiction in This Court.

_ Under the standards of Article III , as has been pre­
viously shown, Bakke does not have sufficient standing 
to prosecute this litigation in the federal courts. The 
University, in its rush to obtain a judgment from this 
Court, recognized this fatal flaw after the California 
Supreme Court filed its opinion. At the time of its 
Petition for Rehearing in the California Supreme 
Court, the University sought to correct it. What it did, 
in essence, was to “ stipulate” to this Court’s jurisdic­
tion in order to obtain the advisory opinion they seek. 
Such a “ stipulation” was a pure fabrication of the

(



14

facts, contrary to the University’s insistent position 
up to that date, and contrary to the trial court’s find­
ings; 7 further it is ineffectual under this Court’s con­
sistent rulings that parties cannot stipulate to juris­
diction Swift & Co. v. Hocking Valley By. Co., 24:; 
U.S. 282, 2S9 (1917).

The California Supreme Court in its September 
16th Order remanded to the trial court the issue of 
whether Bakke would have been admitted to the Davis 
Medical School in the absence of the Task Force pro-

7 The Petitioners make reference to an aside by the trial court in 
its initial Notice of Intended Decision that there was “ at least a 
possibility that [Bakke] might have been admitted” absent the 
Task Force program. (Pet. for Cert, at II, n. 4) The Court then 
went on to find specifically to the contrary. (Id., at 116a). Subse­
quently, after further briefing and argument, the trial court spoke 
with even greater finality in its Addendum to Notice of Intended 
Decision:

The Court has again reviewed the evidence on this issue and 
finds that even if 16 positions had not been reserved for mi­
nority students in each of the two years in question, plaintiff 
still would not have been admitted in either year. Had the 
evidence shown that plaintiff would have been admitted if 
the 16 positions had not been reserved, the court would have 
ordered him admitted. (Id., at I lia ) .

And the court after discussing the record in detail concluded 
subsequently in its Findings of Fact and Conclusions of Law that: 

Plaintiff would not have been accepted for admission to the 
1973 class even if there had been no special admissions pro­
gram; * * * Plaintiff would not have been accepted for ad­
mission to the class entering Davis Medical School in 1974 
even if there had been no special admission program (Id., at 
116a-117a).

Dr. Lowery’s Memo to II.E.W., referred to at n.4 of the Petition 
for Certiorari, merely bemoans the fact that a “ lack of available 
space” exists in the Medical School and had “ additional places' 
existed, Bakke may have been admitted. This in no way contradict* 
the trial court’s findings that given the existing space limitation* 
Mr. Bakke would not have been admitted even if the 16 slot* 
had become available.



15

gram, shifting the burden to the University to estab­
lish that Bakke would not have been so admitted. The 
court did not intimate in any way, however, that the 
uncontroverted and substantial evidence presented by 
the University at the trial level was insufficient; it 
merely stated that this evidence must be evaluated in 
light of the different burden (18 Cal. 3d at 64).8

The University subsequently attached a “ stipula­
tion” to its Petition for Rehearing, which purported 
to concede that the University could not meet this 
burden.7 The Petition, relying upon this “ stipulation” 
urged the court to remand to the trial court to order 
Bakke admitted to the Medical School. The California 
Supreme Court on the basis of the stipulation so 
ordered.

The logical question flowing from the stipulations is 
why the University contrary to its insistence that Mr. 
Bakke would not have been admitted even in the 
absence of the task force program essentially reversed 
its position at such a late date. (See pp. —, supra.)

The answer to this question is that the University 
realized that the record, in the absence of tbe stipula­
tion, clearly showed a lack of jurisdiction in this Court 
to decide an issue that it clearly wished addressed: as 
the University said in urging the Court to order Bakke 
admitted:

I t is far more important for the University to 
obtain the most authoritative decision possible on

8 An analogue to the present ease would be a woman not pregnant 
seeking to invalidate an abortion law in federal court and, although 
conclusive evidence showed her not to be pregnant, the state (being 
desirous of an advisory opinion) “ stipulating” that it was unable 
to prove that fact in order to simulate a case or controversy.



16

the legality of its admissions process than to argiv 
over whether Mr. Bakke would or would not havi 
been admitted in the absence of the special ad 
missions program. A remand to tbe trial court foi 
determination of that factual issue might delay 
and perhaps prevent review of the constitution;! 
issue by the United States Supreme Court. Peti­
tion for Rehearing, 11-12 (emphasis added).9

Admission of Mr. Bakke to the Medical School cor 
tainly would not have “ prevented review” by thi 
Court. By asking for this relief in the stipulation, ii 
is clear that it was not admission that the Universit' 
feared. Rather, it was ultimate success on remand t 
the trial court with regard to Bakke’s admissibility 
which the University wished to avoid. I t was precise! 
their success which would have made apparent 
Bakke’slack of Article I I I  standing and thereby “ pre­
vent” the review that the University so eagerly seek? 
In  other words, the University essentially gave up ar 
air tight case in order to confer “ jurisdiction” on thi? 
Court so that it could achieve its goal of obtaining “ tin 
most authoritative decision possible” . (Ibid .)10

9 No problem arose until the University sought an opinion fron 
this Court, for in California the same standing strictures are lie 
applicable. However, as Justice Rehnquist, writing for the majoril; 
in Richardson v. Ramirez, 418 U.S. 24, 36 (1974), observed: “ Whil 
the Supreme Court of California may choose tG adjudicate a eon 
troversy simply because of its public importance, and the desir 
ability of a statewide decision, we are limited by the case-or-conti1" 
versy requirements of Article III to adjudication of actual elk 
putesbetween adverse parties” .

10 indeed there are indications predating the filing of this actioi 
that the University’s primary aim was to ‘‘set the stage” for: 
judicial determination of the validity of its Task Force program

In the summer of 1973, following his first denial, Mr. Ball 
entered into an exchange of correspondence with the Admission-



However resourceful this attempt, a common 
thread in this Court’s past and recent decisions has 
been the view that the Court is not empowered to

Office of the Davis Medical School. In the first of three letters, 
between Bakke and Assistant to the Dean of Admissions, Peter C. 
Storandt, Storandt expressed sympathy for Bakke’s position. Fur­
ther, he urged that Bakke “ review carefully” the Washington Su­
preme Court’s opinion in DeFunis, sent him a summary of the 
opinion, urged that he contact two professors known to be knowl­
edgeable in medical jurisprudence (CT. 264-65), recommended 
that he contact an attorney and concluded with the “ hope that . . ■ 
you will consider your next actions soon” (CT. 265).

Two weeks later, Bakke met with Storandt at the Davis Medical 
School (CT. 268); and 5 days later Bakke wrote to Storandt as 
follows:

Thank you for taking time to meet with me last Friday after­
noon. Our discussion was very helpful to me in considering 
possible courses of action. I appreciate your professional in­
terest in the question of the moral and legal propriety^ of 
quotas and preferential admissions policies; even more im­
pressive to me was your real concern about the effect of ad­
mission policies on each individual applicant.
You already know, from our meeting and previous correspond­
ence, that my first concern is to be allowed to study medicine, 
and that challenging the concept of racial quotas is secondary. 
Although medical school admission is important to me person­
ally, clarification and resolution of the quota issue is unques­
tionably a more significant goal because of its direct impact 
on all applicants (CT. 268; App. A)

Bakke’s letter then went on to outline his alternative litigation 
strategies (CT. 268-69) consisting of “ Plan A ” and “ Plan B ” . 
Storandt promptly replied. After remarking that, “ the eventual 
result of your next actions will be of significance to many present 
and future medical school applicants” (CT. 266), he went on to 
suggest the use of “ Plan B ” over “ Plan A ” :

I am unclear about the basis for a suit under your Plan A. 
Without the thrust of a current application for admission at 
Stanford, I wonder on what basis you could develop a case as 
plaintiff; if successful, what would the practical result of 
your suit amount to? With this reservation in mind, in addi­
tion to my sympathy with the financial exigencies you cite, 
I prefer vour Plan B, with the proviso that you press the 
suit—even if admitted—at the institution of your choice. And

!

i



18

decide important social issues merely because a part 
wishes a decision. Lord v. Veazie, 49 U.S. (8 How. 
251, 255 (1850) ; Muskrat v. United States, 219 U.S 
346 (1911), United States v. Richardson, 418 U.S. 1( 
(1974) (misuse of funds by the Central Inteiligeiii 
Agency) ; Schlesinger v. Reservists to Stop the Wo 
418 U.S. 208 (1974) (violation of incompatabilit 
clause of Article I, § 6 cl. 2 of the Constitution) ; Wart 
v. Set din, 422 U.S. 490 (1974) (constitutionality of r< 
strictive zoning ordinances) ; while the last three cast 
cited highlighted burning issues that great numboi 
of persons had and have an interest in, that fact alou- 
without more, was deemed insufficient to invoke tlii 
Court’s jurisdiction.

This is not the first time that a party has attempte 
by stipulation to circumvent this Court’s evaluate 
of the true facts. However, as Justice Frankfurter ex 
plained:

Even where the parties to the litigation have stipr 
lated as to the ‘facts’ this Court will disregar 
the stipulation—if the stipulation obviously Tor- 
closes real questions of law. United States v. Felt 
& Co., 334 U.S. 624, 640 (1948).

The rationale for looking behind a stipulation of fa- 
that fails to correspond to real facts was further ex 
plicated by Justice Frankfurter:

if this Court had to treat as the starting poii 
for the determination of constitutional issues 
spurious finding of ‘fact’ contradicted by an a- 
judicated finding between the very parties to tl

there Stanford appears to have a challengeable prononnecnu'i 
If you are simultaneously admitted at Davis under El’ 
[Early Decision Program], you would have the security - 
starting here in twelve more months (CT. 266).



19

instant controversy, constitutional adjudication 
would become a verbal game. Id., at 639.

In  sum, it is just a “ verbal game” which the Uni­
versity is playing with this stipulation. Thet facts and 
the University’s own assertions up to the date of the 
stipulation belie its validity. The University’s effort 
to confer jurisdiction on this court should properly 
be rejected.

I II .
BECAUSE THE ISSUE ON THE MERITS IS SO IMPORTANT TO 
THE ENTIRE NATION. THIS CASE SHOULD NOT BE DISPOSED 
OF ON THE MERITS ON THE BASIS OF SUCH A SKEiCHY 
RECORD
A. A Fully Developed Record Is Essential to a Reasoned and 

Principled Judgment in This Case.

The record in this case is so deficient that this Court 
should decline to reach the merits. A decision on the 
merits should not be made on such an important issue 
on such a poor record. Rather, the Court should va­
cate the decision below and remand for the taking of 
further evidence. DeFunis v. Odegaard, 416 U.S. 312, 
320 (1974) ; Morales v. State of New York, 396 U.S. 
102, 104-06 (1969) (Order vacating and remanding for 
taking of further evidence because of the “ absence of 
a record that squarely and necessarily presents the 
issue and fully illuminates the factual context in which 
the question arises. . . . ” id., at 106.

Concededly, the substantive issue raised by the par­
ties is vitally important. The numerosity of amici 
and their participation at such an early stage in this 
Court attest to that. A decision on the merits could 
also have substantial bearing on employment practices.

t



20

See, e.g., Executive Order 11246, 30 Fed. Reg. 123] 
(Sept. 24, 1965), as amended; Associated Gcn’l Co, 
tractors of Mass., Inc. v. Altshuler, 490 E.2d 9, cer 
den., 416 TT.S. 957 (1st Cir. 1973).

Petitioners are not engaging in hyperbole when the 
characterize the issue as “ perhaps the most importai: 
equal protection issue of the decade” . (Pet. for Cert 
12.) I t is even more than that because of what it m;r 
portent for the decades ahead, for both minorities air 
the majority of our nation.

We do not propose that this case is not worthy of 
certiorari because it lacks significance, but rather, pre­
cisely because the issue is so very significant both tin 
needs and interests of all affected persons as well a> 
sound jurisprudential principles militate that the 
Court closely examine the record to best insure that 
this is the case to decide this issue. As Dean Pollack has 
said, “ [t]he more important the issues, the more 
strictly the Court must monitor the exercise of its awe­
some discretion” . DcFunis Est Non Disputandum, 75 
C oltjm. L . R ev. 495, 509 (1 9 7 5 ).

This Court’s power rests, not on the militia that it 
can command, for it commands none. Rather, it rests 
upon the soundness of its reasoning and the shared 
belief of those who do and those who do not prevail 
that reasoning is well-grounded in a fully developed 
case. In the words of the late Professor Alexander 
Bickel, the “ well-tempered case”, is the one which best 
insures public and professional acceptance of this 
Court’s awesome role of final constitutional arbiter. 
The Least Dangerous Branch; The Supreme Court at 
the Bar of Politics, Bobbs-Merrill, 1962 169-82; see 
also, id., at 124, 197-98. The substantive issue in the

■



I

21

instant case is the paradigm of the prudent wisdom 
embodied in the need for the “ well-tempered case” .

Frequently, this Court has declined to grant certio­
rari because a record was not “ sufficiently clear and 
specific to permit decision of the important constitu­
tional questions involved. . .” Massachusetts v. Pain- 
ten, 889 U.S. 560, 561 (1968). The Court declines its 
W rit where a record is “ too opaque”, Wainwright v. 
City of New Orleans, 392 U.S. 598 H967) (concur­
ring opinion of Harlan, J .) or because “ the facts 
necessary for evaluation of the dispositive constitu­
tional issues in [the] case are not adequately presented 
by the record”, id., at 599 (concurring opinion of For- 
tas and Marshall, J .J .) . Accord, Naim v. Naim, 350 
U.S. 891 (1956); Newsom v. Smyth, 365 U.S. 604, 
604-05 (1961); Smith v. Mississippi, 373 U.S. 238 
(1963).

The Court has broadly explained that the basis for 
its rules of caution:

lie in all that goes to make up the unique place 
and character, in our scheme, of judicial review 

L of governmental action for constitutionality. They
are found in the delicacy of that function, parti­
cularly in view of possible consequences for others 
also stemming from constitutional roots [and] the 
comparative finality of those consequences . . . 
Rescue Army v. Municipal Court, 331 U.S. 549, 571 
(1947) (emphasis added).

I
In  the instant case, the “ others” are the disadvan­
taged minorities who risk jeopardy of their rights on 
an inadequate record, minorities who have not parti­
cipated in the litigation. The University, at best, bears 
only a limited risk because the intense competition for 
places in the Medical School will insure that qualified

!



22

minority applicants will be replaced by other qualified 
applicants.

We are not unmindful of the “ very real disadvan­
tages, for the assurance of rights, which deferring de­
cision very often entails.” Id., at 571. Lest there be any 
doubt, we do not urge the Court to avoid the merits in 
this case for the purpose of delay or deferral. Many 
other similar cases are now on their way to this Court. 
Rather, because of the extreme importance of the sub­
stantive issues, we urge that the Court choose the 
“ fully developed case” for disposition because:

a contrary policy, of accelerated decision, might 
do equal or greater harm to the security of pri­
vate rights. . . . For premature and relativelv ab­
stract decision, which such a policy would be'most 
likely to promote, have their part too in rendering 
rights uncertain and insecure. Id., at 572."
The applicability of these rules: can be deter­
mined only by an exercise of judgment relative to 
the particular presentation, though relative also 
to the policy generally, and to the degree in which 
the specific factors rendering it applicable are ex­
emplified in the particular case. It is largely 
question of enough or not enough, the sort of thing 
precisionists abhor but constitutional adjudication 
nevertheless constantly requires. Id., at 574 (em­
phasis added) Accord, Poe v. Ullman, 367 U.S. 
497, 508-09 (1964). The following examination of 
the record demonstrates that, given the impor­
tance of this case, there is just “ not enough.”

Ihe rush to judgment in the instant ease encompassed both 
the parties: the ease was tried on a paper record tantamount to 
summary judgment, 18 Cal. 3d at 39; and the California Supreme 
Court exercised its rarely used power to transfer a cause to it. 
“ prior to a decision by the Court of Appeal, because of the im­
portance of the issues involved” . Id.



23

B. The Record.

1. The Evidence presented hy the University.
The only affirmative proof presented by the Univer­

sity in its defense and in support of its request for a 
declaratory judgment was one eleven-page declaration 
by the Chairman of the Admissions Committee, Dr. 
Lowry (CT. 61-72). Apart from discussion of Mr. 
Bakke’s personal situation, the declaration merely 
makes a series of conclusionary statements. Xo other 
evidence was presented since the University stipulated 
that the case could he decided on the basis of this decla­
ration and the paper evidence generated by Mr. Bakke.

2. The Evidence not presented hy the University.12
The California Supreme Court’s decision turned 

directly upon: (1 ) its perceived rule of law that: 
“ [a.Jbsent a finding of past discrimination—and thus 
the need for remedial measures to compensate for . . . 
prior discriminatory practices . . ., the preferential 
treatment of minorities . . .  is invalid on the ground 
that it deprives a member of the majority of a benefit 
because of his race”, 18 Cal. 3d at 57-58.

12 The following discussion relates only to some of the Univer­
sity’s most glaring evidentiary omissions. Not only is the record 
barren of facts, but recent discoveries point to at least one rather 
important misstatement of fact. The record states that in 1974, 
there were sixteen Task Force Admittees, while recent revelations 
indicate that in fact there were fifteen. This error is neither harm­
less nor insignificant since it appears that the sixteenth “ slot” was 
returned to regular admissions for the Task Force felt that there 
was need for a more qualified admittee. Letter of Dr. S. Gray, 
App. B, infra.) This substantially undercuts the finding of the 
Court below that the program is “ a form of an educational quota 
system” (18 Cal. 3d at 62) reflecting a “ rigid proportionality” 
(id. n. 33).

/



24

and, (2) the absence of not only such a finding, but j 
deed, “ no evidence in the record to indicate that tl 
University lias discriminated against minority apai 
cants in the past”. Id,, at 59. Based on a record si]', 
on this crucial point, the California Supreme Con 
concluded that it “ must presume that the Universit 
has not engaged in past discriminatory conduct”. /, 
at 60 (emphasis added). Thus, upon this thin reed < 
piesumption, the Task Force program was held j] 
Aalid. In short, the Court’s decision “ depends upo 
unalleged and unknown facts”. Simon v. Eastern Kn 
tuchy WHO, supra, 96 S.Ct. at 1927, n. 25.

While we take strong exception to this holding o: 
the California Supreme Court, see, e.g., Associate 
(yen. Contractors of Mass. v. Altshuler, 490 F.2d 9 (k  
Cir. 1973), cert, denied, 416 U.S. 957 (1974) ; Contrae 
tors Assn, of Eastern Penn. v. Secretary of Labor 44: 
F.2d 159 (3rd Cir. 1971), cert, denied, 404 U .S ' 84.' 
(1971) ; cf., Kahn v. She via, 416 U.S. 351 (1974)', tin 
only prudent position by a university set upon present- 
ing all possible defenses would have been to offer evi 
deuce of past discrimination, given the long line of 
cases supporting affirmative action programs llowiir 
from such a finding.

One obvious evidentiary discrepancy in this record 
relates to the Medical School Admissions Test 
(AXCAT). The lack of evidence on this point is striking 
m light of the guidance given by Justice Douglas on 
this very point in his dissent in Pe Pa n is v. Odeaaard 
416 U.S. 312, 327-37 (1974). While the view of one 
Justice of this Court is not controlling sound trial 
strategy would warrant that the tactic should he at­
tempted. I t was not just a passing thought of Justice 
Douglas. Nearly all of his 28-jiage dissent is devoted



L

25

to the issue and it concludes with the belief that the 
matter should be remanded for the taking of evidence 
on the point. Thus, the point here is not whether or 
not the MCAT will ultimately be found the be racially 
biased, but the fact that the record is silent on this 
important issue.

In dictum, the court below dismissed pleas by amici 
to follow the course of action urged by Justice Douglas 
in Do. Funis. The court believed that in spite of the 
racially disproportionate impact of the MCAT, its use 
is not unconstitutional, relying on Washington v.
Davis,----- U .S .------ , 96 S.Ct. 2040 (1976). The latter
case is inapposite. Washington cannot be read to say 
that a university is barred from compensating for an 
uncontroverted degree of bias in a test instrument 
which it, because of circumstances, is forced to rely 
upon in part. Yet, if the record had been fully devel­
oped, such fact could have been shown. Since the Uni­
versity receives federal funds, it is subject to Title 
V I of the Civil Rights Act of 1964, 42 TJ.S.C. § 2000d 
(CT. 24, 278) and its implementing regulations, 45
C.F.R. §80; discriminatory effect, irrespective of dis­
criminatory purpose, would impose an obligation on 
the University to demonstrate, the validity of the 
MCAT. Lau v. Nichols, 414 U.S. 563, 568 (1974).13

13 A recent study on the relationship between the MCAT and 
siiceess in medical school by the Association of American Medical 
Colleges has found that Blacks who had successfully completed 
the first two years of medical school had lower MCAT averages 
than whites who had flunked out. Robert II. Feitz, The MCAT 
and Success in Medical School, Sess. #9.03, Div. of Education 
Measurement and Research, AAMC (mimeo). See also, Simon, 
et al., Performance of Medical Students Admitted Via Regular 
And Admissions— Variance Routes, 50 J. Med. Ed. 237 (Mar. 
1975). Thus, there is evidence available to prove that the MCAT

>



26

In  addition to the absence of evidence of discrimina­
tion against minority applicants on the part of the 
Medical School itself, the record is devoid of evidence 
to prove that the State of California, through its edu­
cational system, has discriminated against minority 
students in numerous ways that have deprived them of 
an equal opportunity to gain admission to medical 
school. See, e.g., Jackson v. Pasadena City School Din- 
trxet, 59 Cal. 2d 876 (1963) (segregation) Lau v. Nich­
ols, 414 U.S. 563 (1974) (language), California Assem­
bly, Special Subcomm. On Bilingual-Bicultural Edu­
cation, “ Toward Meaningful And Equal Educational 
Opportunity: Report of Hearings on Bilingual-Bi­
cultural Education” (July, 1976). Closely related is 
the absence of any evidence relating to the omnipresent 
influence of racial discrimination that mars this Na­
tion’s history.

Another serious defect in the record relates to the 
“ compelling state interest” test and its “ less onerous

measures Blacks as “ less qualified” than some whites, when they 
are in fact “ better qualified” .

This evidence, never before the trial court or California Supreme 
Court, puts into serious doubt the very question at issue before it: 
whether the Special Admissions Program at U.C. Davis Medical 
School “ offends the constitutional rights of better qualified appli­
cants denied admission . . . . ” 18 Cal. 3d at 38, (emphasis added).

In addition, there is substantial reason to doubt the predictive 
value of the MCAT as applied to all applicants. “ The highest cor­
relation recorded for MCAT scores with medical school grades at 
Harvard was 0.22, and an average correlation of 0.15 [at other 
schools] supports the conclusion that the MCAT is unable to dis­
criminate meaningfully among . . . pre-medical students” . Whittieo. 
The President’s Column: The Medical School Dilemma, 61 -T. 
N at’l Med. A 174, 185 (March, 1969). Similarly, correlations of 
combined I,SAT (Daw School Admissions Test) and undergraduate 
grade point averages, among ninety-nine law schools studied, nuts 
from 0.2 to 0.7, with the median being 0.43. Educational Testin'! 
Service, Law School Validity Study Service, 21 (1973).

See also, Griswold, Some Observations On the DeFunis Case, 
75 Colum. L. Key. 512, 514-15 (1975).



fc»

27

alternative” counterweight. The University has harsh 
criticism for the California Supreme Court s clearly 
fanciful speculation’ ” regarding the efficacy of its 
self-hypothesized alternatives (Pet., 39, 16-17). The 
criticism is deserved but more deserved is criticism 
of the total absence of any evidence on these critically 
determinative points. For example, the University 
sought, in part, to establish as a compelling state in­
terest the greater rapport that, minority doctors would 
have with minority patients and the fact that an in­
crease in the number of minority doctors may help to 
meet the crisis now existing in a minoiity community 
seriously lacking adequate medical case. 18 Cal. 3rd at 
53. But, “ the record contains no evidence to justify” 
this proposition. Id. Of course, it is easier for a court 
to dismiss an assertion which is unsupported by the 
“ flesh” of an evidentiary basis.

Another example of the paucity of the record is the 
fact that “ the only evidence in the present record on” 
the unavailability of alternative means is the admis­
sion committee chairman’s statement that, ‘in the judg­
ment of the faculty of the Davis Medical School, the 
special admissions pvogvam is the only method wheieby 
the school can produce a diverse student body . . . ” 
18 Cal. 3rd at 89 (Tobriner, J., dissenting) (emphasis 
in original). This was an issue deserving extensive 
evidentiary devel opment.

CONCLUSION
The importance of the substantive issues in this case 

extends far beyond the parties because of the role of 
the basic policy at issue in overcoming the historical 
consequences of exclusion. The interests of the “ major­
ity” are inextricably hound to, and congruent with, the 
interests of the “ minorities” because of this nation’s 
ineluctable movement to racial harmony and peace. 
This Court’s long-standing commitment to further this

/



28

development would be ill-served by addressing tb 
merits in light of the crucial Article I I I  defect and , 
record so wanting in the necessary elements for tb 
exercise of this Court’s plenary power.

Respectfully submitted,

E mma Coleman J ones 
Acting Professor 
UC Davis School of Law 
Davis, California 9561G 
(916) 752-2758

S tephen I. S ciilossberg 
United Auto Workers 
1125 15th Street, N.W. 
Washington, D.C. 20005 
(202) 296-7484

F rank J . Ochoa, J r.
La Eaza National Lawyers Assoc. 
809 8th Street
Sacramento, California 95S14 
(916) 44G-4911

T omas Olmos 
Michele W ashington 
Western. Center for 

Law & Poverty
1709 West 8th Street, Suite GOO 
Los Angeles, California 90017 
(213) 483-1491

L ennox H inds 
12G West 119th Street 
New York, N.Y. 10027

Of Counsel:
J oseph L. R auh , J r.
1001 Connecticut Ave., N.W. 
Washington, D.C. 2003G
S tephen P. B erzon
1520 New Hampshire Ave., N.W.
Washington, D.C. 20036

P eter D. P oos 
Mexican American Legal 

Defense and Educational 
Fund

145 Ninth Street
San Francisco, California 94101
(415) 8G4-G000

A lbert H . Meyerhoff 
R alph S antiago A bascal 
California Rural Legal 

Assistance, Inc.
115 Sansome Street, Suite 900 
San Francisco, California 94101 
(415) 421-3405

Charles R. Lawrence III 
University of San Francisco 

School of Law
San Francisco, California 94117 
(415) GGG-G986

J eanne Miner 
National Lawyers Ouild 
853 Broadway 
New York, N.Y. 10003 
(212) 2G0-13G0

Bi .ack A merican
Law S tudent A ssociation



/



la

APPENDIX A
July 18,1973

Mr. Allan P. Bakke 
1083 Lily Avenue 
Sunnyvale, California 940S6
Dear Allan:

Thank you for your thoughtful letter of July 1. I must 
ap„ ,og t for not answering your original eommunmaUon 
of May 30 sooner, it arrived amidst the preparations foi 
our second commencement, the start of the summer quart 
for continuing students, and a compheated aria> of m - 
agement changes within the medical school s admimstra
tion.

Your first letter involves us both in a situation that is
i aU-ifnl for im as for you. Yrou did indeed fareperhaps as painful loi us as 101 >uu.

well with our Admissions Committee and were rated 
deliberations among the top ten percent of our 2 oOO aph-  
cants in the 1972-73 season. We can admit hi one!tan 
dred students, however, and thus are faced with the d 
tressing task of turning aside the applications of *0™ 
markahly able and well-qualified mdiyiduais, including, 
this year, yourself. We do select a small group of altei na­
tive candidates and name individuals from that group to 
positions in the class made vacant by withdrawals, if any 
The regulations of the University of California do not 
permit ns to enroll students in the medical school on any 
other basis than full-time, however, so that even your sug­
gestions for adjacent enrollment cannot he enacted.
5 Your dilemma—our dilemma, really-seems in your mind 
to center on your present age and the Poss'ble t ̂ ri“ en 
influence this factor may have m our consideration of >( 
application. I can only say that older applicants have suc­
cessfully entered and worked in our curriculum and that 
your very considerable talents can and will override any 
questions of age in our final determinations.



2a

I  think the real issue is what to do now. I have two sir 
gestions, one related to your own candidacy here, the otli. 
addressed to the matters raised in your second letter. Fir> 
I would like you to apply a second time to Davis, und 
the Early Decision Plan. We are participating in I! 
AMCAS system this year and to apply as an EDP cam! 
date you need only so indicate on the appropriate AMCA 
form and agree to apply only to Davis until a decision 
reached, no later than October first. The advantages ar 
early and thorough evaluation and interview with a eo 
respondingly prompt decision either to offer you a pla,' 
or to defer your application for later consideration as 
regular applicant. In the event that our decision is the hr 
tei, you might consider taking my other suggestion whic 
is then to pursue your research into admissions policl 
based on quota-oriented minority recruiting. The reasn 
that I suggest this coordination of activities is that if or. 
decision is to deter your application for admission, y<v 
may then ask AMCAS to send it elsewhere as well. You 
interest in admission thus would become more generalize 
and your investigation more pointed.

I am enclosing a page that describes the basic approa. 
used by the medical school at Davis in evaluating appl 
cants who have “ minority’’status. I don’t know whetln 
you would consider our procedure to have the overtones' 
a quota or not, certainly its design has been to avoid an 
such designation, but the fact remains that most applicant 
to such a program are members of ethnic minority group 
It might be of interest to you to review carefully the cm 
rent suit against the University of Washington School ' 
Law by a man who is now a second year student there la; 
who was originally rejected and brought suit on the ver 
grounds you outlined in your letter. While the case is o' 
appeal to the U.S. Supreme Court at this time, the imnif 
diate practical result two years ago was a lower coin"!



3a

ordered admission for the plaintiff. The case, De Funis vs. 
Odegaard, can be researched in a law library at your con­
venience: a summary is enclosed. I might further urge that 
you correspond with Prof. Robert Joling, a member'of the 
faculty at the University of Arizona College of Medicine 
interested in medical jurisprudence. An attorney, Joling 
can give you perhaps the best indication of the current 
legal thinking on these matters as they pertain to medical 
schools. Associate Dean Martin S. Begun of the New York 
University School of Medicine can also assist in your re­
search.

I hoPe that tliese thoughts will be helpful, and that you 
will consider your next actions soon. I am enclosing an 
application request card for your use, should you decide to 
make a second shot at Davis.

Sincerely,
P eter C. S toraxdt
Assistant to the Dean 

Student Affairs/Admissions

t



4a

Sunnyvale, California 94086 
1088 Lily Avenue 
August 7, 1973

Peter C. Storandt 
Office of Student Affairs 
University of California, Davis 
Davis, California 95G16
Dear Mr. Storandt:

Thank you for taking time to meet with me last Friday 
afternoon. Our discussion was very helpful to me in con­
sidering possible courses of action. T appreciate your pro 
fessional interest in the question of the moral and legal 
propriety of quotas and preferential admissions policies: 
even more impressive to me was your real concern about 
the effect of admission policies on each individual appli­
cant.

You already know, from our meeting and previous cor 
respondencc, that my first concern is to be allowed to study 
medicine, and that challenging the concept of racial quota- 
is secondary. Although medical school admission is impor 
tant to me personally, clarification and resolution of th 
quota issue is unquestionably a more significant goal be 
cause of its direct impact on all applicants.

The plan of action I select should be designed to accom­
plish two purposes—to secure admission for me and t 
help answer the legal questions about admissions practice 
which show racial preference.

Two action sequences which appear to have some pro.- 
pect of satisfying both requirements are outlined below.

Plan A
1. Apply to Davis under the Early Decision Program.



5a

2. If admitted, I would retain standing to sue Stanford 
and UCSF in order to officially pose the legal ques­
tions involved. With my admission assured, I could 
proceed directly to a filing of pleadings, bypassing 
the possible compromise of admitting me to avoid 
the inconveniences of legal proceedings. Hopefully, 
I would he able to obtain legal or financial assistance 
to sustain these proceedings.

Plan B
1. Apply to Davis under the Early Decision Program.
2. Confront Stanford in August or September, 1973, 

attempting to secure immediate admission as an al­
ternative to a legal challenge of their admitted racial 
quota.

3. If admitted to Stanford, then sue Davis and UCSF. 
If also admitted to Davis, sue only UCSF.

Stanford is chosen for this confrontation because of 
their greater apparent vulnerability. Stanford states cate­
gorically that they have set aside 12 places in their entering 
class for racial minorities.

Two principles I wish to satisfy in choosing my course 
are these:

1. Do nothing to jeopardize my chances for admission to 
Davis under the E.D.P.

2. Avoid actions which you, Mr. Storandt, personally or 
professionally oppose. My reason for this is that 
you have been so responsive, concerned, and helpful 
to me.

Plan B has one potential advantage over plan A. It con­
tains the possibility, probably remote, of my entering med­
ical school this fall, saving a full year over any other ad-

i



6a

missions possibilities. Because my veterans’ educational 
benefits eligibility expires in September, 1970, admission 
this year would also be a great financial help.

Mr. Storandt, do you have any comments on these pos­
sible actions? Are there any different procedures you would 
suggest? Would Davis prefer not to be involved in any 
legal action I might undertake, or would such involvement 
be welcomed as a means of clarifying the legal questions 
involved ?

Although they may not be relevant to the legality of pref­
erential minority admissions, I would like to learn the an­
swers to several questions. They relate to how well those 
selected under “ minority” admissions programs perform.

1. Do they require special tutoring?
2. Do they take longer to complete medical school and 

therefore use more resources?
3. Do they perform adequately on national evaluation 

examinations?

Are statistics like these available as public records, and 
if so, where can one obtain them?

If it is more convenient to phone than to write, should 
you have any comments or answers for me, you may reach 
me any day after 4:30 PAL at my home (408) 246-33o(i. 1 
will be happy to accept charges for any such call.

Again, thank you for the considerable time and effort 
you have spent listening to my inquiries, informing, and 
advising me. If you are in tbe Sunnyvale area and would 
like to visit us, Judy and I would be happy to have you.

Sincerely yours,
/ s /  A llan P. B akke 

Allan P. Bakke



7a

August 15, 1973
Mr. Allan P. Bakke 
1088 Lily Avenue 
Sunnyvale, California 94086
Dear Allan:

Thank you for your good letter. It seems to me that you 
have carefully arranged your thinking about this matter 
and that the eventual result of your next actions will be of 
significance to many present and future medical school 
applicants.

1 am unclear about the basis for a suit under your Plan 
A. Without the thrust of a current application for admis­
sion at Stanford, I wonder on what basis you could develop 
a case as plaintiff; if successful, what would the practical 
result of your suit amount to? With this reservation in 
mind, in addition to my sympathy with the financial exig­
encies you cite, I prefer your Plan B, with the proviso that 
you press the suit—even if admitted—at the institution of 
your choice. And there Stanford appears to have a chal­
lengeable pronouncement. If yon are simultaneously ad­
mitted at Davis under EDP, you would have the security 
of starting here in twelve more months.

Your questions about the actual academic performance 
of those admitted under “ minority” admissions programs 
have been asked frequently, as you might imagine, and have 
received attention in many circles, I would suggest re­
searching these issues in the Journal of Medical Education, 
where an extensive bibliography has accumulated in the 
last few years. At Davis, such students have not required 
“ official” tutoring, although they and many of their class­
mates have organized an impressive series of study ses­
sions during the year. A few of them—perhaps ten percent 
—have taken longer than four years to complete the M.D. 
degree (but not more than one year longer). Their per­
formance on the first part of the National Board of Med-

t



8a

ical Examiners’ test series lias been mixed—half of tho 
current third year class “ minority” students failed to 
qualify as passing the first time they took the examination; 
all of our “ minority” students have passed the appropriate 
levels of the test by the time of their graduation. Part two, 
based on the clinical years of a medical education, seems 
to pose no such problems for these students.

I am sure that you can recognize the need for careful 
evaluation of these facts and opinions. 1 will be interests 
to learn of your view of them, particularly after you hav 
been able to read some studies done on a national and 
regional basis. Is there a medical library reasonably clost 
to you that you could use in working up your research 011
this subject?

With best wishes,
Sincerely,

P eter C. S torandt 
Assistant to the Dean

Student Affairs/Admissions



9 a

APPENDIX B

U niversity oe California, D avis 

division of the sciences
BASIC TO MEDICINE 

DEPARTMENT of HUMAN PHYSIOLOGY
SCHOOL OF MEDICINE 
DAVIS, CALIFORNIA 95616

January 4, 1977

Editor
The Sacramento Dee 
21 st and Q Streets 
Sacramento, CA 95813
Dear Sir:

The article entitled, “ U.C. Davis Suit Has National lm- 
nact” bv N.Y. Times News Service writer Gene I. Maeiolt 
(Sacramento Bee, Jan. 2, 1977) contains a number of inac­
curacies and misconceptions which have repeatec y ap­
peared in news accounts of the special admissions program 
at UCD Medical School, as well as m the public record o 
the Balike case. One of the most flagrant misstatements o 
fact which has recurred is that UCD has had a strict quota 
of 16% of the places reserved for minority students out of 
1  00 available in each freshman class. The special ad-
missions program as it was originally authorized by the 
medical school faculty in 1970, set 16% as a goal toward 
which the admissions committee was to work m admitting 
disadvantaged students. The difference between a goal and 
a o t t a  may seem to he a minor academic point to the pub­
lic hut it most assuredly is not an insignificant one. It is 
actually one of the crucial points on which the judicial de­
cision in the Balike case was based. Not only was it the 
intent of the faculty that 16% be a goal, but m practice the 
admissions committee has viewed it as a goal, since two o 

frooiimpn classes, one of which was the class for which

l

j



10a
15 students by way

rogram was specif- 
i minorities. In the 

program, no mention

Bakke sought admission, enrolled o 
of the special program.

Another misconception is that t 
ically set up in order to admit r
1970 faculty authorization ()! . ‘" ^ k illg a factor in
was made of ethnic or vacua ̂  n .‘tees> j t was specif-
the selection process for specn < promising students
ically stated that highly motivated ^  ^  to ho 
with backgrounds of education to be called,
considered under a new progiam winch u d
Task Force on Medica oeiol-eeonomic factors
Citizens, and it w a s  implied < educational depri-
which were primarily electing the stu-
vation were to be looked at * subsequently en-
dents. Although most of t from racial minorities,
rolled via the p iog ia  • b;t rilv excluded from the 
white students have not been a 0 n the contrary,
program, as f„r special ad-
quite a few of flier application form which is
mission. rl be national ^  iprity of the TJ.S. medical
used by UC Davis as well as a m a jo iik  g of it sent
schools (the student files one o ^  would like to ap-
to all of the medical schools consideration
Ply), progiam  Schools which
for admission undo, a n i m o n t 1 = t)mt question,

T  “  “ M T S  o 'e td o n  process to suit their 
others use th e d“‘* m tion is worded in that way be- 
own programs. The 1 urograms which arc
cause ' - y  S  i .  is ironic that
set up specifical 3 having a racial quota system,
UC Davis was sing f ^  few schools which set up
when m actuality rt non.quota basis. In spite ofr e s  s
t ' s ^ c w  in the minority category. At Davis



t

11a

an admissions subcommittee screens all applicants who 
ask for special consideration (both whites and racial mi 
on ties) and gives strongest consideration to those who 

appear, from other personal data in the application to bo 
disadvantaged. The medical school bulletin whicMs’avail 
able to all app wants, states specifically that religious pref- 

ence sex and race of the applicant are not considered in 
the evaluation process, and it describes the special pro-ram 
as emg one based on socio-economic/educational disad
vantage. Although grades, test scores and S v a n t a g i  
factors are used in the initial screening of these applicants 

>e students who are finally selected for “d S o H ™  
loscn because they present the strongest evidence of a

similar "L*™ *° a di^vantaged ai,,a
1 " f  ° t ,at fro1" they came (mainly inner city
care s i i i c T t ^  ^  reservatio"> provide health . o ’ *ce those are the geographical areas in which mod
p r o f i t  W i t l f t l i ^  T Gd adeqUatdy ^  the medical

come from racal minorities, since those are the ones X  
in ■dominant],- .nhabit California’s disadvantaged areas 
and they are the ones who have a paramount interest in 
the living conditions there. The prmrrnm k *
smnewlmt as a ‘bootstrap operation’ in which thosedlrecUy

z t z z z r tho opimhmito ^  -
Tlic Anal point which needs clarification is that medical 

school admission is never decided strictly on the basis of 
g.ades and aptitude test scores. Balike lias charged ‘re 
oise discrimination * because minority students with lower

bT w aT ofT sT *" ,tha" 1,iS Preferentially admitted 
} Y > °f a sPecial Program. However, Davis as well a,

° f  7nedjCal schools> accepts students through the 
regular admission process who have B+ averages in ore 
erence to some A students, because they appear’to have

X



12a

superior personal qualities. Thus, grades have been the 
sole concern of admissions committees in selecting students 
(otherwise a computer could be used to select the class), 
and Bakke is not necessarily more qualified for the study 
of medicine (or the eventual practice of medicine) merely 
because he has higher undergraduate grades than some 
other students. Maeroff quotes President Bok of Harvard 
University on the dangers of having court judges impose 
rigid admissions criteria for schools, since they don’t have 
‘first-hand experience with the nuances and subtleties of 
the admissions process’. It is precisely those nuances and 
subtleties which are the important human factors to be 
considered in selecting future physicians. It would be dis­
advantageous to have them rigidly standardized by a court 
because admissions committees need some judgmental lati­
tude in selecting a balanced class of students with varied 
personalities, backgrounds, career goals and interests. 
Hopefully, continuation of such admissions policies will 
allow for the education of physicians who are attuned to 
the health needs of all levels of society.

Respectfully,

/ s /  S arah 1). Gray, Ph.D.
Sarah D. Gray, Ph.D.
Member of Admissions Committee 
Past Task Force Chairman 
Assoc. Prof, of Human Physiology 
School of Medicine 
University of California 
Davis, CA 95G16