Christiansburg Garment Company v. Equal Employment Opportunity Commission Brief Amicus Curiae

    JAMES M. N m i r ,  III
ASSOCIATE-COUWSa

IN THE

(tart nf thr Httitrb §tatrB
October Term, 1976

No. 76-811

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Petitioners,

v.

ALLAN BAKKE,
Respondent.

BRIEF OF AMICI CURIAE
The Puerto Rican Legal Defense and Education 

Fund and Aspira of America

Robert H ermann 
M.D. Taracido

Puerto Rican Legal Defense 
and Education Fund 

95 Madison Avenue
New York, New York 10016

Debra M. Evenson 
Benito Romano

1 Chase Manhattan Plaza 
New York, New York 10005

Attorneys for Amici Curiae

Howard C. Buschman, III 
Willkie Farr & Gallagher 

1 Chase Manhattan Plaza 
New York, New York 10005 

Of Counsel.



TABLE OF CONTENTS
PAGE

Interest of the A m ic i....................................................  1

Introductory Statement ..............................................  4

A rgument :

The Special Admissions Program of the Davis 
Medical School is Constitutional.............................  6

A. I t Is Permissible For The University To Con­
sider Ethnic And Racial Background As One 
Of The Many Factors In Selecting Among 
Qualified Applicants For A dm ission...............  8

B. The University’s Special Admissions Program
Furthers Compelling State Interests In Rem­
edying the Consequences Of Discrimination 
And Serving The Unmet Health Needs Of 
Minority Communities......................................... 15

Conclusion ...............................................................................  23

TABLE OF AUTHORITIES

Cases
Albemarle v. Moody, 422 U.S. 405 (1975) .................  9

Arlington Heights v. Metropolitan Development Cor­
poration, 45 U.S.L.W. 4073 (January 11, 1977) . . .  12

Arnold v. Ballard, 12 Empl. Dec. (CCH) If 11,000
(6th Cir. 1976) ..........................................................  9

Brown v. Board- of Education, 347 U.S. 483 (1954) . . 10

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, 
denied, 406 U.S. 950 (1972) ..................................... 9

Civil Rights Cases, 190 U.S. 3 (1883) .........................  10



1 1

PAGE
Cases (C ont.)

Clarke v. Redeker, 406 F.2d 883 (8th Cir.), cert, 
denied, 396 U.S. 862 (1969) .....................................  20

Examining Board of Engineers, Architects and Sur­
veyors v. Flores de Otero, 426 U.S. 572 (1976) . . .  11

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) 8,9
Frontiero v. Richardson, 411 U.S. 677 (1973) .......... H

Graham v. Richardson, 403 U.S. 365 (1971) .............. 10
Green v. County School Board, 391 U.S. 430

(1968) ...........'........................................................... 9,17,23

Hernandez v. Texas, 347 U.S. 475 (1954) .................  10
Hills v. Gciutreaux, 425 U.S. 284 (1976) .....................  17

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . . 10

Kahn v. Shevin, 416 U.S. 351 (1974) .........................  15

Katzenbach v. Morgan, 384 U.S. 641 (1966) .............  13

Keyes v. School District No. 1, 413 U.S. 189 (1973) 9,11

Lau y. Nichols, 414 U.S. 563 (1974) ...........................  17
Local 53, International A ss’n of Meat db Frost In­

sulators & Asbestos Workers v. Vogler, 407 F.2d 
1047 (5th Cir. 1969) ..................................................  9

McDonald v. Santa Fe Trail Transportation Co., 427 
U.S. 273 (1976) ....................................................  12

McLaughlin v. Florida, 379 U.S. 184 (1964) .............  10
Memorial Hospital v. Maricopa County, 415 U.S. 250

(1974) ................................................   17
Morton v. Mancari, 417 U.S. 535 (1974) ...................  8

Oyama v. California, 332 U.S. 633 (1948) .................  10



Ill
PAGE

Cases (Cont.)
Patterson v. American Tobacco Go., 535 F.2d 257

(4th Cir. 1976) ..........................................................  9

Rios v. Enterprise Association Steamfitters Local
638, 501 F.2d 622 (2d Cir. 1974) .............................  9

San Antonio Independent School District v. Rodri­
guez, 411 U.S. 1 (1973) ............................................  11, 22

Slaughter-House Cases, 83 U.S. 36 (1873) ...............  10
Swann v. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971) ............................ ' ..............8,9,14
Sw ift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281

(1917) .......................................................................... 6

United Jewish Organisations of Williamsburgh, Inc. 
v. Carey, 45 U.S.L.W. 4221 (March 1, 1977) . .8,12,13,14

United States v. Felin & Co., 334 U.S. 624 (1948) . . .  6
United States v. International Union of Elevator 

Constructors, Local 5, 538 F.2d 1012 (3rd Cir.
1976) ...........................................................................  9

United States v. Ironworkers Local 86, 443 F.2d 544 
(9th Cir.), cert, denied, 404 U.S. 984 (1971).......... 9

United States v. Montgomery County School of Edu­
cation, 395 U.S. 225 (1969) ......................................... 8

United States v. United Brotherhood of Carpenters 
& Joiners, Local 169, 457 F.2d 210 (7th Cir.), cert, 
denied, 409 U.S. 851 (1972) .......................................  9

Washington v. Davis, 426 U.S. 229 (1976) .................  7,12

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................  10

Legislative Materials
S. Rep. No. 93-1133, 93d Cong., 2d Sess. 62 (1974) . . 17
48 U.S.C. § 731 ..............................................................  2



IV
PAGE

Commentaries
Applewhite, A New Design for Recruitment of 

Blacks into Health Careers, 61 A.J.P.H. 202 (1971) 21
Association of American Medical Colleges, The Med­

ical School Admissions Process—A  Revietv of the 
Literature 1055-76 (1976) ......................................... 3,18

Bartlett, Medical School and Career Performances of 
Medical Students with Low MCAT Test Scores, 42 
J. Med. Ed. 231 (1967) ........................................ 19

Blaxall, Minority Students in Health Professional 
Schools: Progress is Being Made, 3 The Black Bag 
81 (1974) ...................................................................... 8

Caress and Kossy, The Myth of Reverse Discrimina­
tion: Declining Minority Enrollment in New York 
City’s Medical Schools (Health Policy Advisory 
Center 1977) ................................................................  3

Ceithaml, Appraising Non-intellectual Characteris­
tics, 3 J. Med. Ed. 47 (1957) ...................................  20

Comment, Developments in the Law—Equal Protec­
tion, 82 Harv. L. Rev. 1065 (1969) .........................  l i

Cooper, The Government Concern Regarding Post- 
Graduate Training and Health Care Delivery, 36 
Am. J. Cardiology 555 (1975) .................................  21

Gough, Evaluation of Performance in Medical Train­
ing, 39 J. Med. Eel. 679 (1964) .................................  19

Hammonds, Blacks in the Urban Health Crisis, 66 J.
N at’l Med. A ss’n 226 (1974) ................................... 18

Herrera, Chicago Health Professionals, Agenda 
(Winter, 1974) ..........................................   21

Jackson, The Effectiveness of a Special Program for 
Minority Group Students. 47 J. Med. Ed. 620 
(1972) ' .............       21

Lurie and Lawrence, Communication Problems Be­
tween Rural Mexican Patients and their Physi­
cians: Description of a Solution, 42 Am. J. Ortho- 
Psychiatry 77 (1972) ................................................  18



V
PAGE

Commentaries (Cont.)
Madsen, “ Society and Health in the Lower Rio 

Grande Valley,” in J . PI. Burma, ed., Mexican- 
Americans in the U.S.: A Reader (1970) .............  18

Marshall, Margolis, and Joseph, Impact of a Reten­
tion Program for Disadvantaged Medical Students 
upon the Medical School, 50 J. Med. Ed. 805 (1975) 7

Marshall, Minority Students for Medicine and Haz­
ards of High School, 48 J. Med. Ed. 134 (1973) . . 19

National Board on Graduate Education, Minority 
Group Participation in Graduate Education, 152
(1976) ................................................................. 3,19

Nelson, Bird and Rogers, Educational Pathway 
Analysis for the Study of Minority Representation 
in Medical School, 46 J. Med. Ed. 745 (1971) . . . .  19

New York State Department of Labor, Labor Re­
search Report No. 1, Occupational Trends of Ne­
groes and Puerto Ricans in New ¥ ork State 1960- 
1970 (1975) ..................................................................  17

C. E. Odegaard, Minorities in Medicine 1966-76
(1977) .......................................................................... 2,3

Price, et al., Measurement and, Predictors of Physi­
cian Performance, (University of Utah Press 
1971) ....................... ................... ' ...............................  19

Rhoades, et al., Motivation, Medical School Admis­
sions and Student Performance, 49 J. Med. Ed.
1119 (1974) ................................................................  19

Simon, and Covell, Performance of Medical Students 
Admitted Via Regular Admission-Variance Routes,
50 J. Med. Ed. 237 (1975)........................................... 7

Smith, Foreign Physicians in the United States, 66 J.
N at’l Med.' A ss’n 77 (1974) .......................................  17

Turner, Helper and Kriska, Predictors of Clinical 
Performance, 49 J. Med. Ed. 338 (1974) .............  19



VI
PAGE

Commentaries (Cont.)
United States Commission on Civil Rights, Puerto 

Ricans in the Continental United States: An Un­
certain Future (1976) ..............................................  2, 21

H. Wechsler, Principles, Politics and Fundamental 
Law (1961) ..................................................................  11

Weymouth and Weigin, Pilot Programs for Minority 
Students: One School’s Experience, 51 J. Med.
Ed. 668 (1976) ..........................................................  19

Whittico, The Medical School Dilemma, 61 A.M.A.J.
185 (1969) ..................................................................  19

Other

United States Bureau of the Census, Population 
Characteristics, “Persons of Spanish Origin in the 
United States: March 1975,” Series P-20, No. 290 
(Feb. 1976) ................................................................  2

United States Department of Labor, Bureau of 
Labor Statistics, A Socio-Economic Profile of 
Puerto Rican Neiv Yorkers (1975) .........................  3



IN THE

diqjnmu' (tart nf ftp? Inttrft Stairs
October Term, 1976

No. 76-811

--------------------o-------------- ------

T h e  R egents of the U niversity of California,

Petitioners,
v.

A llan B akke, 

----------o--------
Respondent.

BRIEF OF AMICI CURIAE
The Puerto Rican Legal Defense and Education 

Fund and Aspira of America

Interest of the Amici'

Tlie Puerto Rican Legal Defense and Education Fund, 
Inc. exists to secure the civil rights of Puerto Ricans 
through litigation and education. Aspira of America, Inc. is 
a national organization of Puerto Rican educators and 
students which was established for the purpose of insuring 
equal educational opportunity for Puerto Ricans and other 
Hispanic persons. Both organizations, with headquarters 
in New York City, have worked to foster affirmative action 
programs for Puerto Ricans interested in pursuing pro­
fessional education.

1 Letters of the petitioners and respondent giving their consent to 
file this brief have been filed with the Clerk of this Court.



2

Hispanic persons constitute the second largest minority 
in this country. As of 1975, about one of every twenty per­
sons in the continental United States was of Spanish origin. 
Among this Hispanic population, nearly 1.7 million persons 
were Puerto Ricans residing on the mainland.2

Puerto Rican college graduates, who will be directly 
affected by this Court’s ruling on the merits, have long 
been the victims of educational deprivation. They have been 
aptly described as survivors—the “ few who have survived 
the public schools, who have overcome the language barrier, 
who have somehow found the money, or who have convinced 
their families to forego the income they could produce. . . . ” 3 
However, educational deprivation has taken its toll. 
Puerto Rican college graduates who are intent on attending 
professional school often do not have scholastic grade-point 
averages on a par with those of non-minority students.4 
The failures of the educational system to which Puerto 
Ricans have particularly been victim often have had an im­
pact as well on their performance on standardized admis­
sions examinations for professional schools.5

In the last few years, factors other than the numerical 
measures traditionally so heavily relied on have come to 
be considered in the admission process. In part because 
1 ‘ the applicant pool of today includes an abundant number

2 United States Bureau of the Census, Population Characteristics, 
“Persons of Spanish Origin in the United States: March 1975,” Series 
P-20, No. 290 (Feb. 1976), at 3. United States citizenship was con­
ferred upon all Puerto Ricans in 1917 by the Jones Act, 48 U.S.C. 
§ 731 et seq.

8 United States Commission on Civil Rights, Puerto Ricans in the 
Continental United States: An Uncertain Future 123 (1976), 
quoting from Hearings before the Senate Committee on Equal Edu­
cational Opportunity of the United States Senate, 91st Cor.g., 2d Sess., 
Part 8, “Equal Educational Opportunity for Puerto Rican Children” 
(November 1970), at 3797.

4 C.E. Odegaard, Minorities in Medicine, 1966-1976, 112 (1977).
■’ Id. at 112; cf. also, United States Commission on Civil Rights, 

Puerto Ricans in the Continental United States: An Uncertain future, 
at 127.



3

of students with acceptable MCAT scores and GPA’s, ad­
missions committees can now give more attention to lion- 
cognitive criteria.” 0 Increasingly, due recognition has been 
given to the importance of noncognitive measures in recruit­
ing and selecting qualified applicants, especially with re­
spect to disadvantaged minority students :

Admissions decisions focus on assessment of in­
tellectual potential and academic qualifications. 
While the two are closely related, they are not iden­
tical, especially in the situation of minority students, 
many of whom have experienced socioeconomic and 
educational disadvantage.7

Even with recent changes in admissions programs there 
has been no enormous influx of minority persons into pro­
fessional schools. Indeed, minority enrollment in medical 
schools m New York City has declined in recent years,” and 
there is today but a handful of mainland Puerto Rican doc­
tors.!> The increased numbers of persons admitted to med­
ical schools in recent years have overwhelmingly been 
non-minority.10

Nonetheless, small but important gains have been made 
of late in the numbers of Puerto Rican medical students.11

8 Association of American Medical Colleges, The Medical School 
Admissions Process: A Review of the Literature 1955-76 134 
(1976).

7 National Board on Graduate Education, Washington, D.C. 
Minority Group Participation in Graduate Education 152-153 
(1976).

s Caress, B., with Kossy, J., The Myth of Reverse Discrimination: 
Declining Minority Enrollment in New York City’s Medical Schools 
(Health Policy Advisory Center 1977).

9 See note 24, infra.
luOdegaard, op. cit., at 30.
11 Id; cf. also, United States Department of Labor, Bureau of 

Labor Statistics, A Socio-Economic Profile of Puerto Rican New 
Yorkers 55 (1975).



4

The 71 admitted in 1975-1976 are not many, but they are a 
great many more than the three admitted in 1968-1969, who 
represented a scant three one-hundredths of one percent 
(.03%) of the total first year medical school population that 
year. I t is imperative that what little affirmative action 
voluntarily has taken place at the professional school level 
to remedy the consequences of discrimination should be un­
equivocally approved by this Court.

Introductory Statement

Past discrimination against discrete and insular minori­
ties in this country has had a par ticularly devastating impact 
on minority access to our system of professional education. 
Minority persons have been in large part excluded from 
the professions; not coincidentally, minority communities 
are critically underserved by those professions. Seeking to 
remedy these problems, institutions charged with further­
ing the public interest have in recent years adopted policies 
in such areas as admissions and employment which are ex­
plicitly aimed at neutralizing the effect of past discrimina­
tion now. The crucial issue before the Court is whether 
these “ affirmative action” efforts, which have begun to pro­
duce small but measurable gains toward equal opportunity, 
are at odds with the constitutional commands they were 
created to implement.

The University of California Medical School at Davis 
established a special admissions program in order to open 
up professional education to those victimized by past dis­
crimination. The University gave some consideration, in 
selecting among qualified applicants, to racial and ethnic 
background. That much seems beyond doubt, and amici’s 
defense of the program has assumed as much. No more 
than that, however, can be gleaned from the present record. 
Insofar as an assessment of the program may turn



5

on analysis of the extent to which racial and ethnic factors 
were considered, this record will not permit so refined a 
judgment.

Indeed, rarely has so important a case—one in which 
an attempt is made to delimit a state’s right voluntarily 
to remedy the consequences of discrimination—come before 
the Court on such an incomplete, ambiguous record. It is 
uncertain precisely how the program operated. The court 
proceeding's below did not touch upon the program ’s justi­
fication in prior racial discrimination.12 No evidence was 
offered on the demonstrable need today for the program 
or as to the inefficacy of alternatives.

The deficiencies in this record were not due to a failed 
attempt at proof or the unavailability of evidence. Rather, 
they were due to the singular nature of this proceeding: 
an applicant to a professional school challenged as “ reverse 
discrimination” on racial grounds a program for which he 
was ineligible in any event, and the school, anxious to have 
an advisory ruling on the validity of the program, joined 
in the effort to obtain a prompt ruling on the merits. This 
was not a lawsuit marked by the clash of adverse interests 
at trial which normally could be relied upon to produce a 
complete, well-developed record.13

A decision by this Court as to the validity of the special 
admissions program may have wide impact on the civil 
rights of minorities for years to come. For the Court to

12 The complete lack of evidence of past discrimination should not 
be surprising. There was no party to this litigation in whose interest 
it would have been to present such evidence. It would clearly have 
been embarrassing if not detrimental to the University to produce 
evidence or even concede that it had discriminated against minorities 
in the past. Certainly, Bakke would not have presented such evidence.

12 Telling evidence of the lack of adversariness is the “stipu­
lation” in the California Supreme Court. On appeal from the Superior 
Court, the California Supreme Court ruled that the University had 
the burden of establishing that Bakke would not have been admitted 
to the Davis Medical School in the absence of the special admissions



6

reach the merits on this scant record will preclude a fully 
informed decision. I t should therefore decline to do so. 
Nonetheless, this amicus curiae brief is addressed pri­
marily to the merits of the underlying issues, for these are 
the concerns which prompted its filing.

A R G U M E N T

THE SPECIAL ADMISSIONS PROGRAM OF THE 
DAVIS MEDICAL SCHOOL IS CONSTITUTIONAL.

Increasingly in recent years, institutions affected with 
the public interest have come to consider, in connection 
with decisions such as whom to admit or employ, the race 
and ethnic background of applicants. They have done so 
in order to remedy the effects of past discrimination which 
either was practiced by or affected those institutions. The 
Davis Medical School is among the institutions which have 
taken voluntary steps to neutralize the consequences of such 
discrimination. Like many other medical schools, it has rec­
ognized the need to increase minority participation in the 
medical profession and to improve the quality of medical 
services provided to minority communities. In utilizing 
admissions criteria that are sufficiently flexible to permit 
some consideration to be given to applicants from disadvan-

program. Accordingly, in its September 16, 1976 order the Supreme 
Court remanded the issue to the trial court. However, it did not 
intimate that the evidence presented by the University at trial was 
insufficient; it merely stated that the evidence must be evaluated 
in light of the different burden (18 Cal. 3d at 64, 553 P.2d at 
1172, 132 Cal. Reptr. at 700). In an attempt to confer jurisdic­
tion, the University attached to its petition for rehearing in the Cali­
fornia Supreme Court a “stipulation” which, contrary to the evidence 
and the prior position pressed by the University at trial, purports to 
concede that the University could not meet this burden. On the basis 
of this “stipulation,” the California Supreme Court then ordered 
Bakke’s admission. Regardless of the University’s motivation for 
signing the “stipulation” and the effect given to it by the California 
Supreme Court, it must be treated as a nullity by this Court. United 
States v. Felin & Co., 334 U.S. 624 (1948); Swift & Co. V. Hocking 
Valley Ry. Co., 243 U.S. 281 (1917).



7

taged and minority backgrounds,11 the University has 
adopted the position taken by the Association of American 
Medical Colleges (AAMC) that minority students “ bring to 
the profession special talents and views which are unique 
and needed.” AAMC, Statement on Medical Education of 
Minority Group Students, December 16, 1970.

There is no indication that in taking these additional 
factors into account the University planned to admit or 
ever did admit a fixed number of minority persons regard­
less of their qualifications. Rather, there is every indication 
that all of those admitted to the special admissions program 
were fully qualified.15 This program did not effect discrimi-

1 * The validity of traditional academic criteria is an issue not be­
fore this Court. The majority below reasoned, on the basis of the 
rule enunciated in Washington V. Davis, 426 U.S. 229 (1976), that 
a discriminatory purpose could not be inferred solely from the fact 
that traditional academic criteria may have a disproportionate impact 
on minority group applicants. 18 Cal. 3d at 60, 553 P.2d at 1169, 
132 Cal. Rptr. at 697. The majority, however, recognized that 
neither party before it had an interest in raising such a claim. Id. at 
n.29. Plainly, it would be arbitrary for the University to rely solely 
on objective criteria which substantial research has shown to have 
limited predictive value. Washington cannot be read as preventing 
the University from adjusting its admissions procedures to compen­
sate for the bias in a test instrument which for administrative and 
other reasons the University has decided not to abandon altogether.

15 The limited amount of evidence available indicates that minority 
persons admitted to medical schools via affirmative action programs 
were rated as performing at approximately the same levels of com­
petence as those admitted under regular admissions programs. See 
Marshall, Margolis, and Joseph, Impact of a Retention Program for 
Disadvantaged Medical Students upon the Medical School Com­
munity, 50 J. Med, Ed. 805 (1975); Simon, and Covell, Perform­
ance of Medical Students Admitted via Regular Admission-Variance 
Routes, 50 J. Med. Ed. 237 (1975). Physicians are possessed of 
many qualities that traditional testing techniques cannot and perhaps 
will never be able to measure. Exclusive reliance on paper creden­
tials would almost certainly exclude some of the most talented 
majority as well as minority applicants. To avoid this result, educa­
tional institutions have traditionally been accorded wide latitude in 
considering academic and non-academic criteria for all applicants. 
Given the lack of precision of the traditional academic measurements 
as predictors of performance in medical school, and the likelihood



8

nation, in reverse or otherwise; rather, it neutralized the 
effects of past discrimination. The University’s considera­
tion of race and ethnic origin in selecting among otherwise 
qualified applicants thus amounted not to giving a “ pref­
erence” to certain applicants but to expanding the criteria 
considered in making an admissions decision because the 
ones formerly employed were deficient—deficient as to all 
students, but especially as to minority students.18

A. I t Is P e rm is s ib le  F o r  th e  U n iv e rs ity  to  C o n s id e r
E th n ic  a n d  R a c ia l B a c k g ro u n d  As O n e  o f  th e
M any F a c to rs  in  S e lec tin g  A m o n g  Q u a lified  A p p li­
ca n ts  F o r  A d m iss io n .

This Court has never declared that under the Constitu­
tion all classifications based partially upon race or ethnic 
status are presumptively “ suspect.” Indeed, on several 
occasions this Court has upheld the benign use of race-con­
scious remedial techniques, Franks v. Bowman Tramp. Co., 
424 U.S. 747, 774-5 (1976) ; Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 25 (1971) ; United States v. 
Montgomery County Board of Education, 395 U.S. 225
(1969), even where these were part of a policy administered 
by nonjudicial government agencies. United Jewish Or­
ganizations of Williamshurgh, Inc. v. Carey, 45 U.S.L.W. 
4221 (March 1, 1977); Morton v. Mancari, 417 U.S. 535, 554 
(1974). In the employment discrimination context, for ex-

that such criteria have a built-in cultural bias, see Blaxall, Minority 
Students in Health Professional Schools: Progress is Being Made, 3 
The Black Bag 81 (1974), adjustments in the admissions process 
and resort to additional criteria which reflect an applicant’s qualifica­
tions are entirely justified, if not required.

18 In the strictly logical sense, expanding the criteria considered 
could be regarded, all other things being equal, as the giving of a 
preference by comparison with the procedures formerly used. But 
that view, of course, begs two critical questions: whether the cri­
teria formerly employed were constitutionally exclusive or exhaustive 
of all others, and whether in practice all other things were equal.



9

ample, considerations of race, ethnicity or sex in hiring 
have been approved as necessary to fulfill a national policy 
of eradicating the effects of previous discrimination.17 
Assignments by race have likewise become a well-estab­
lished device for desegregating the nation’s school sys­
tems.18 In these and other areas in which there has his­
torically been discrimination, the power of courts to employ 
racially, ethnically and sexually based remedies has come 
to be well established.19

17 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976); Albe­
marle Paper Co. v. Moody, 422 U.S. 405 (1975); Arnold v. Ballard, 
12 Empl. Prac. Dec. (CCH) f  11,000 (6th Cir. 1976); Patterson v. 
American Tobacco Co., 535 F.2d 257 (4th Cir. 1976); United 
States v. International Union of Elevator Constructors, Local 5, 538 
F.2d 1012 (3rd Cir. 1976); Rios v. Enterprise Association Steam- 
fitters Local 638, 501 F.2d 622 (2d Cir. 1974); United States v. 
United Brotherhood of Carpenters & Joiners, Local 69, 457 F.2d 
210 (7th Cir.), cert, denied, 409 U.S. 851 (1972); United States v. 
Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert, denied, 404 
U.S. 984 (1971); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), 
cert, denied, 406 U.S. 950 (1972); Local 53, International Ass’n of 
Meat & Frost Insulators & Asbestos Workers v. Vogler, 407 F.2d 
1047 (5th Cir. 1969).

18E.g„ Keyes v. School District No. I, 413 U.S. 189 (1973); 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971); Green v. County School Board, 391 U.S. 430 (1968).

10 The Court has been keenly aware that the impact of the same 
remedial devices it has sanctioned for minorities has been both sub­
stantial and very often difficult for majority persons to accept. See, 
e.g., Franks v. Bowman Transp. Co., 424 U.S. at 775-78; Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. at 26-27. The 
courts have by no means been insensitive to these concerns, but have 
uniformly resolved that

a sharing of the burden of the past discrimination is presump­
tively necessary [and] is entirely consistent with any fair char­
acterization of equity jurisdiction, particularly when considered 
in light of our traditional view that “[ajttainment of a great 
national policy . . . must not be confined within narrow canons 
for equitable relief deemed suitable by chancellors in ordinary 
private controversies.” Phelps Dodge Corp. v. NLRB, 313 U.S. 
at 188. . . .

Franks v. Bowman Transp. Co., 424 U.S. at 777-78.



10

Decisions of this Court establish a fundamental, consti­
tutional distinction between racial classifications which in­
vidiously discriminate and those which have the benign 
remedial effect, grounded in the language and purpose of 
the Thirteenth and Fourteenth Amendments,20 of promo­
ting “ those fundamental rights which are the essence of 
civil freedom.” Civil Rights Cases. 109 U.S. 3, 22 (1883). 
The Equal Protection Clause does not compel the applica­
tion of an “ exacting” standard of review merely because 
the special admissions program employed a classification 
based on race and ethnic origin.

The central purpose of the Fourteenth Amendment was 
to preclude the states from treating recently freed blacks 
in a discriminatory manner. The Court initially took the 
position that the Amendment’s only purpose was to protect 
the constitutionally emancipated slaves, Slaughter-House 
Cases, 83 U.S. 36, 81 (1873), and termed as “ suspect” 
classifications based upon “ race” which discriminated 
against blacks. See, e.g., McLaughlin v. Florida, 379 U.S. 
184 (1964) ; Brown v. Board of Education, 347 U.S. 483 
(1954). As equal protection doctrine has evolved, this 
special protection of the Fourteenth Amendment has been 
extended to other victimized minorities in positions com­
parable to that of blacks. See, e.g., Graham v. Richardson, 
403 U.S. 365 (1971); Hernandez v. Texas, 347 U.S. 475 
(1954) ; Oyama v. California, 332 U.S. 633 (1948) ; Yick Wo 
v. Hopkins, 118 U.S. 356 (1886).

The Court has applied the “ strict scrutiny” standard in 
reviewing racially based classifications only on behalf of 
individuals or groups that historically have suffered from 
pervasive discrimination and thus are particularly vulner­
able to the damaging effects of a racial classification. In

20 The history of these amendments is thoroughly analyzed in 
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). See also, 
Brief of The Board of Governors of Rutgers, the State University of 
New Jersey, et al., submitted as amici curiae.



11

determining whether application of such a stringent stand­
ard is appropriate, this Court has looked at whether

11Jlie system of alleged discrimination and the class 
it defines have . . . the traditional indicia of suspect­
ness : the class is . . . saddled with such disabilities, 
or subjected to such a history of purposeful unequal 
treatment, or relegated to such a position of political 
powerlessness as to command extraordinary protec­
tion from the majoritarian political process.

San Antonio Independent School District v. Rodriguez, 411 
U.S. 1, 28 (1973). See also, Examining Board of Engineers, 
Architects and Surveyors v. Flores de Otero, 426 U.S. 572 
(1976); Frontiero v. Richardson, 411 TJ.S. 677 (1973).21

The persons or groups on whose behalf the “ strict 
scrutiny” standard has been applied share three significant 
characteristics. First, they labor under the continuing 
effects of previous discrimination and deprivation. Second, 
they share immutable characteristics, those of race or na­
tional origin, which have been used to stigmatize and set 
them apart from members of the majority group. See e.g., 
Comment, Developments in the Laiv—Equal Protection, 82 
Harv. L. Rev. 1065, 1173-74 (1969). Finally, they histori­
cally have been powerless within the political arena. Wechs- 
ler, “ Toward Neutral Principles of Constitutional Law,” in 
H. Weehsler, Principles, Politics and Fundamental Law 
3, 45 (1961).

None of the factors which have led the Court to treat 
certain classifications as constitutionally “ suspect” is pres-

21 For example, the Court has found that “. . . Hispanos con­
stitute an identifiable class for purposes of the Fourteenth Amend­
ment,” and that “ ‘[ojne of the things which the Hispano has in 
common with the Negro is economic and cultural deprivation and 
discrimination,’ ” thus calling for stricter judicial scrutiny of state 
action. Keyes v. School District No. 1, 413 U.S 189 197-98 
(1973).



12

ent here. Majority applicants not admitted to the medical 
school were not part of a class suffering from the continu­
ing effects of discrimination and deprivation. Nor could it 
be said they were politically powerless, or that the actions 
of the University which affected them were motivated by a 
discriminatory intent. The obvious remedial nature of the 
admissions policy, and the fact that it was designed and 
implemented by governmental bodies not dominated by 
minorities, further negate any possibility that the Uni­
versity was motivated by racial animus toward majority 
group applicants. Compare United Jewish Organisa­
tions of Williamsburgh, Inc. v. Carey, 45 U.S.L.W. at 4230 
(Brennan, J., concurring) with McDonald v. Santa Fe Trail 
Transp. Co., 427 U.S. 273 (1976).22

Moreover, the majority below conceded the special ad­
missions program did not cast a stigma on non-minority 
applicants on account of their race. 18 Cal.3d at 51-52, 553 
P.2d at 1163, 132 Cal. Rptr. at 691. There is no evidence to 
suggest that it had the purpose or effect of dislodging any 
recognizable subgroup of non-minorities or that the pro­
gram had a disproportionate impact on any such subgroup. 
The special admissions program did not bring about under­
representation of the white race generally, nor did it have

22 Increasingly in recent years this Court has determined that in 
order to render a racial classification suspect there must be some 
finding that the classification was motivated by an “invidious dis­
criminatory purpose.” Arlington Heights v. Metropolitan Housing 
Development Corporation, 45 U.S.L.W. 4073, 4077 (January 11, 
1977); Washington v. Davis, 426 U.S. 229, 242 (1976). Although 
designed to give some consideration to race, the special admissions 
program did not create a racially “invidious” procedure because 
there was no purpose systematically to exclude or segregate; the 
program rather was intended to neutralize the discriminatory impact 
of traditional selection criteria. Unlike the complainant in McDon­
ald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), Bakke did 
not allege and could not prove that the University’s action which 
affected him reflected a racial animus.



13

the effect of “ fencing out” the white population from a 
professional education. At best, the evidence suggests that 
any burdens imposed by the special admissions program 
have been shared by those who have not been disadvantaged, 
both minority and non-minority alike. United Jewish Or­
ganizations of Williamshurgh, Inc. v. Carey, 45 U.S.L.W. 
at 4227. In sum, the special admissions program “ repre­
sented no racial slur or stigma with respect to whites or any 
other race.”  Id.

The program certainly did not stigmatize its intended 
beneficiaries. It grew out of an acute awareness among edu­
cators and administrators that existing selection criteria 
were inadequate for all applicants. In expanding those cri­
teria, the University, as have others, has recognized that its 
previous ability to make comparisons among applicants was 
imprecise at best. Thus, any perception that minority stu­
dents, as judged by the standards previously relied on, are 
“ less qualified” has and always has had little basis in real­
ity. If anything, it is the failure to institute a program which 
considers the effects of past discrimination that has a stig­
matizing effect on minorities, because underrepresentation 
of minorities in a professional school may be perceived by 
them and others as reflective of lesser ability. Further, the 
voluntary, affirmative character of the University’s pro­
gram in any event makes it less likely that minorities will 
be stigmatized than would a judicial decree granting race­
conscious remedial relief, perhaps after a lengthy, strenu­
ously contested controversy.

Such voluntary undertakings deserve constitutional 
sanction. The Court has recognized that nonjudicial gov­
ernmental bodies have an authority to remedy constitutional 
violations which is broader than the power conferred on the 
judiciary. See, Katzenbach v. Morgan, 384 U.S. 641, 653 
(1966). Indeed, this authority includes the power to take



14

remedial action reaching beyond the immediate effects of 
prior discriminatory practices. United Jewish Organiza­
tions of Williamsburgh, Inc. v. Carey, 45 U.S.L.W. at 4226. 
In Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. at 16, for example, this Court noted:

School authorities are traditionally charged with 
broad power to formulate and implement educational 
policy and might well conclude, for example, that in 
order to prepare students to live in a pluralistic 
society each school should have a prescribed ratio of 
Negro to white students reflecting the proportion for 
the district as a whole. To do this as an educational 
policy is within the broad discretionary powers of 
school authorities; absent a finding of a constitu­
tional violation, however, that would not be within 
the authority of a federal court.

Thus, as a matter of precedent and of policy it would be 
error to hold that the limitations of equity jurisdiction are 
applicable to nonjudicial governmental bodies. A contrary 
rule would vest the power to remedy discrimination exclu­
sively in courts and usurp the authority of legislatures and 
executive agencies. Clearly such a result would work coun­
ter to the purposes of the Reconstruction Amendments, 
the civil rights statutes, and the decisions of this Court.

In conclusion, the considerations employed in the Uni­
versity’s admissions process did not create suspect clas­
sifications and were not in any sense invidiously discrim­
inatory. This Court in evaluating the special admissions 
program should therefore apply the traditional standard of 
review under the Equal Protection Clause. It need only 
consider whether the University’s program and the classifi­
cations employed are rationally related to achieving a



15

legitimate governmental purpose. See, e.g., Kahn v. Shevin, 
416 U.S. 351 (1974).

Amici will argue in the following point that even if the 
Court does apply the “ strict scrutiny” standard, it is 
clear that the program was necessary to achieve a com­
pelling state interest. Because that argument necessarily 
involves the same issues as are involved in showing that the 
program passes muster under the lesser burden of constitu­
tional justification argued for here, amici defer more ex­
tended discussion of that matter until the next point.

B. T h e  U n iv e rs ity ’s S p ec ia l A d m iss io n s  P ro g r a m  (Fur­
th e rs  C o m p e llin g  S ta te  In te re s ts  in  R e m e d y in g  th e  
C o n seq u en c es  o f  D isc r im in a tio n  a n d  S e rv in g  th e  
th e  U n m et H e a lth  N eeds o f  M in o rity  C o m m u n itie s .

California’s special admissions program withstands 
constitutional examination even under the “ strict scrutiny” 
standard. The program embodies and seeks to satisfy two 
basic compelling state interests: increasing minority par­
ticipation in the medical profession in order to remedy the 
consequences of past discrimination, and training doctors 
likely to serve the needs of critically underserved minority 
communities.23 The failure to acknowledge either the legiti-

23 There were other interests served by the program as well. The 
dissent below noted one important interest:

fl]n Swann v. Board of Education, supra, 402 U.S. 1, 16, 91 
S.Ct. 1267, 1276, the Supreme Court explicitly confirmed that 
school authorities are constitutionally empowered to utilize 
benign racial classifications to achieve racially balanced schools 
“in order to prepare students to live in a pluralistic society.” 
The special admission process at issue here, of course, was in 
fact implemented for fust such an educational purpose, to pro­
vide a diverse, integrated student body in which all medical 
students might learn to interact with and appreciate the problems 
of all races as to adequately prepare them for medical practice 
in a pluralistic society. This educational interest in a diverse 
student body is no mere “makeweight”; undergraduate schools 
and professional institutions of the highest caliber have long



16

macy of those interests or the appropriateness of attempt­
ing to further them through the medical school admissions 
process leads some observers mistakenly to characterize 
this as a “ reverse discrimination” case. This narrow posi­
tion fails to acknowledge the multiplicity of legitimate 
interests the state has in the medical school admissions 
process at governmentally supported institutions. If, how­
ever, these interests are accorded due recognition, even 
under the most stringent test applied under the Equal 
Protection Clause, the program must be seen as constitu­
tionally valid.

The most fundamental interest California has sought to 
further through this affirmative action program is remedi­
ating the consequences that past discrimination has wrought 
on a profession affected with the public interest. Other 
groups participating in this litigation have amply demon­
strated the extent to which previous discrimination in 
education, employment and other areas has lessened the 
opportunities for and thus the numbers of minority doctors. 
Such discrimination has affected Puerto Ricans particularly 
acutely, and the result has been that the numbers of Puerto 
Rican doctors on the mainland United States, though not

recognized that the quality of one’s educational experience is 
“affected as importantly by a wide variety of interests, talents, 
backgrounds and career goals [in the student body] as it is by 
a fine faculty and . . . libraries [and] laboratories . . .” (65 
Official Register of Harvard U. No. 25 (1968), pages 104-105) 
Thus, given the race and ethnic background of the great majority 
of students admitted by the medical school, minority applicants 
possess a distinct qualification for medical school simply by 
virtue of their ability to enhance the diversity of the student 
body.

18 Cal. 3d. at 85, 553 P.2d at 1157, 132 Cal. Rptr. at 715 (emphasis 
added).



17

known precisely, is by all accounts exceedingly small.24 
This Court lias repeatedly recognized that remedying the 
consequences of past discrimination is a governmental 
concern of the highest order. See, e.g., Hills v. Gautreaux, 
425 U.S. 284 (1976) ; Lau v. Nichols, 414 U.S. 563 (1974) ; 
Green v. County School Board, 391 U.S. 430 (1968). Plainly 
the most certain way—indeed the only way—to satisfy that 
interest is to determine to admit greater numbers of quali­
fied minority persons to medical schools.

The other, equally compelling governmental interest 
which the program has sought to further is increasing the 
number of doctors who will dedicate some or all of their 
professional efforts to improving the delivery of medical 
help to the chronically underserviced communities of the 
poor. Provision of adequate health services is beyond 
doubt a governmental concern of the highest order. See, 
e.g., Memorial Hospital v. Maricopa County, 415 U.S. 250, 
259-261 & n.15 (1974).

The inadequacy of medical services generally available 
to minority persons in disadvantaged communities, as well 
as the failure of efforts to involve licensed physicians to a 
greater extent in serving those communities, is well known. 
As a Senate Report recently stated, “ [pjrivate physicians 
are as hard to find in some neighborhoods of New York as 
in backward rural counties of the South.” S. Rep. No. 93- 
1133, 93d Cong., 2d Sess. 62 (1974). This problem is par-

24 Data compiled from federal government agencies by the Bureau 
of the Census are inadequate to determine the number of Puerto 
Rican doctors. The classification category used by these agencies is 
“Spanish-surnamed” and includes not only a predominant number of 
Mexican-Americans but also more than seven thousand Filipinos. 
See Smith, Foreign Physicians in the United States, 66 J. Natl. Med. 
Ass’n 77 (1974). In New York, as of 1970 there were 146 Puerto 
Rican physicians (M.D.’s and osteopaths) out of a total of 38,269 
physicians in the state—approximately one-third of one percent. 
New York State Department of Labor, Labor Research Report No. 
1. Occupational Trends of Negroes and Puerto Ricans in New York 
State 1960-1970, 13 (1975).



18
ticularly acute for language-minority persons. A high per­
centage of Puerto Ricans speak only or largely Spanish, 
and thus not even all of the limited medical resources avail­
able to other minorities are available to them.26

These compelling governmental interests—enhancing 
educational opportunities for disadvantaged minorities in 
order to remedy the consequences of previous discrimina­
tion, and providing for the currently unmet health needs of 
impoverished minority communities'—have been inade­
quately if at all furthered by existing school admissions 
policies.20 Those who would deny the University the ability 
to adopt admissions policies designed to advance these social

25 It is fairly evident that language or other barriers may be in­
jurious to the patient’s receiving the best advice and assistance from 
a doctor. See Hammonds, Blacks in the Urban Health Crisis, 66 J. 
Nat’l. Med. Ass’n 226 (1974); Lurie and Lawrence, Communi­
cation Problems Between Rural Mexican Patients and their Physi­
cians: Description of a Solution, 42 Am. J. Ortho-Psychiatry 77 
(1972). Diagnostic ability, among other things, may suffer. See 
Letter to the Editor, 295 N.E.J. Med. 293 (July 29, 1976). Ex­
plaining a medical problem is a complex task that requires greater 
linguistic facility (e.g., ability to describe symptoms precisely, and 
perhaps even to understand some technical terminology) than do 
most other personal contacts. Furthermore, speaking to a profes­
sional person in other than one’s native language about a physical 
or mental problem is a stressful, anxiety-producing interaction that 
may even impair further a person’s normal ability to speak in English. 
See Madsen, “Society and Health in the Lower Rio Grande Valley,” 
in J.H. Burma, ed., Mexican-Americans in the U.S.: A Reader
(1970).

20 There has been an extraordinary increase in the number of 
applicants to medical school. In 1965, the number of applicants and 
the number of applications submitted to medical schools totaled 
18,703 and 87,111, respectively. In 1975, the number of applicants 
increased by 126% to 42,303 and the number of applications in­
creased by 320% to 366,040. Association of American Medical 
Colleges, The Medical School Admissions Process— A Review of the 
Literature 1955-76, 12. If existing admissions criteria were relied 
on exclusively there would be few if any minority admissions because 
relatively few minority persons apply. Of the 42,303 applications 
submitted in 1975, 2288 were submitted by Black-Americans, 132 by 
American Indians, 427 by Mexican Americans and 202 by mainland 
Puerto Ricans. Id. at 144.



19

concerns have sought to focus on the narrower, emotionally 
laden issue of whether applicants were admitted according 
to strict rank order of grades and test scores. Judging 
applications exclusively by these measures, which have been 
so heavily relied upon for so long, has in the view of some 
come to be equated with so fundamental an American con­
cept as the merit system. The equation is spurious.

I t has increasingly been recognized that the conventional 
academic credentials, the Medical College Aptitude Test 
(MOAT) and the Grade Point Average (GPA), reveal rela­
tively little about the abilities of most if not all applicants. 
These traditional criteria may measure certain skills that 
are important for the study of medicine—and even that 
point is far from certain. Their correlation with and ability 
to predict competence in professional practices is yet more 
dubious.27

27 There is substantial doubt about whether traditional criteria 
yield measurements that are predictive. See, e.g., National Board on 
Graduate Education, Minority Group Participation in Graduate 
Education 152-153 (1976). Numerous scholarly studies have ques­
tioned whether objective criteria accurately predict academic and 
professional performance of minority applicants and whether paper 
academic credentials provide an equitable basis for comparison. See 
Weymouth and Weigin, Pilot Programs for Minority Students: One 
School’s Experience, 51 J. Med. Ed. 668 (1976); Marshall, Minority 
Students for Medicine and the Hazards of High School, 48 J. Med. 
Ed. 134 (1973); Nelson, Bird, and Rogers, Educational Pathway 
Analysis for the Study of Minority Representation in Medical School, 
46 J. Med. Ed. 745 (1971); Whittico, The Medical School Dilemma, 
61 A.M.A.J. 185 (1969). In addition, research has suggested that 
objective criteria are of doubtful utility as predictors of majority 
student performance as well. See, e.g., Turner, et al., Predictors of 
Clinical Performance, 49 J. Med. Ed. 338 (1974) (low correlation 
between MCAT scores and clinical medical school performance); 
Bartlett, Medical School and Career Performances of Medical Stu­
dents with Low MCAT Test Scores, 42 J. Med. Ed. 231 (1967) (low 
MCAT not significantly related to class rankings, academic warnings, 
academic honors, internship appointments, faculty appointments and 
later careers). See also, Price, et al., Measurement and Predictors 
of Physician Performance (University of Utah Press 1971); Rhoades, 
et al., Motivation, Medical School Admissions and Student Per­
formance, 49 J. Med. Ed. 1119 (1974); Gough, Evaluation of Per­
formance in Medical Training, 39 J. Med. Ed. 679 (1964).



20

The attempt to equate reliance on grades and test scores 
with the use of the merit system in admissions policies also 
does not comport with historical realities. Medical schools 
have never based their admissions decisions solely on aca­
demic criteria.28 Professional institutions entrusted with 
the responsibility for making decisions that greatly affect 
the public interest have always reserved to themselves the 
right to use admissions decisions to further legitimate poli­
cies of the institution and the profession. For example, 
some medical schools have sought to admit applicants who 
will bring diversity and distinction because of special inter­
ests or sensitivities; if an applicant expresses an interest in 
becoming a family physician, the University, like many 
institutions, will weigh this heavily because it recognizes 
serious, unmet needs in this area.

Similarly, many medical schools’ admissions criteria 
have, because of statutory law or state policy, traditionally 
accorded some significance to the residence or background 
of applicants in order to further legitimate social goals.29 
California residents who express an interest in returning 
to areas of the state which currently are not adequately 
served by the profession, especially in Northern California, 
are given special consideration. Many medical schools have 
determined that this type of practical approach enhances 
the possibility that underserved areas will be adequately 
staffed by doctors.80

28 Ceithaml, Appraising Non-intellectual Characteristics, 3 J. Med. 
Ed. 47, 53 (1957).

29 See Transcript of Superior Court proceedings, at 65. Fre­
quently these preferences for state residents are expressed in terms 
of a quota. See, e.g., Clark v. Redeker, 406 F.2d 883 (8th Cir,), 
cert, denied, 396 U.S. 862 (1969).

80 Other examples include consideration of whether the applicant 
is a relative of an alumnus or alumna of the institution (presumably 
to encourage and solidify support for the institution among its gradu­
ates) or is the spouse of a current student (a policy the University 
followed, presumably to encourage practice as a family or to avoid 
dividing professional families during the training of the spouses, see 
Transcript of Superior Court proceedings, at 183).



21

A similar assumption for similar reasons is made in 
recruiting minority persons for the special admissions pro­
grams. The consideration of the minority status of some 
applicants is a measure reasonably calculated to increase 
medical services to poorly served minority communities. 
It is sensible to assume, as the University did in the absence 
of contrary evidence, that minority doctors from disadvan­
taged backgrounds are more likely than others to be em- 
pathetic to the needs and problems of these communities 
and thus to want to serve them.31 This assumption is par­
ticularly valid in the case of Spanish-speaking minorities. 
Regardless of where he or she chooses to practice medicine, 
a doctor from the Spanish-speaking minority community is 
an important asset to the large numbers of Spanish-domi­
nant persons in this country.32

By correcting the deficiencies in its admissions pro­
cedures, which had perpetuated the effects of discrimination 
at earlier educational levels and had restricted access of 
racial minorities to the profession, and by developing* new 
procedures for selecting qualified minority applicants, the 
University has chosen a precise, direct means of achieving 
the state’s compelling goals. Indeed, in light of the urgent 
need for swift remedies, the special admissions program is 
the least restrictive method of accomplishing the desired

31 See e.g., Cooper, The Government Concern Regarding Post- 
Graduate Training and Health Care Delivery, 36 Am. J. Cardiology 
555 (1975); Herrera, Chicano Health Professionals, Agenda (Win­
ter, 1974), at 10-11; Jackson, The Effectiveness of a Special Pro­
gram for Minority Group Students, 47 J. Med. Ed. 620 (1972); 
Applewhite, A New Design for Recruitment of Blacks into Health 
Careers, 61 A.J.P.H. 202 (1971).

32 Spanish is the mother tongue of 83% of mainland Puerto 
Ricans. 72% usually speak in Spanish at home. The United States 
Commission on Civil Rights, Puerto Ricans in the Continental United 
States: An Uncertain Future 32 (1976).



22

objectives.33 Alternatives for attaining the same objectives 
that were suggested by the California Supreme Court, such 
as expanding recruitment programs and focusing remedial 
efforts on the primary and secondary school levels, are de­
sirable of themselves but do not insure effective and prompt 
solutions. Expanded recruitment has been a central element 
of affirmative action programs in recent years, but recruit­
ment by itself is not a remedy for the effects of past educa­
tional discrimination below the professional school level. 
Concentrating attention solely on discrimination at these 
lower levels of education, though again desirable on its own 
merits, will postpone meaningful progress for years.

Measured against alternatives, then, or considered by 
themselves, the admissions procedures utilized by the 
special admissions program are reasonable and rational 
means of attaining the compelling interests implicated here. 
In the process of perfecting admissions techniques, other 
procedures for accomplishing the desired ends may well 
become available. For the present time, however, the pro­
gram established by the University is the most realistic 
and practical approach. It does not impose an undue burden 
on the majority as a whole; majority applicants continue 
to receive the vast majority of acceptances. No majority 
applicant has been deprived of careful consideration, and 
no unqualified minority applicant has been admitted.

33 The California Supreme Court assumed arguendo that the 
program served a compelling state interest. It then found that the 
University failed to demonstrate “that the basic goals of the program 
cannot be substantially achieved by means less detrimental to the 
rights of the majority.” 18 Cal. 3d at 53, 553 P.2d at 1165, 132 
Cal. Rptr. at 693. The imposition of so heavy a burden of justifica­
tion on the University was improper. Such a burden is only appli­
cable in the presence of “invidious” discrimination or a denial of a 
fundamental interest. San Antonio Independent School District v. 
Rodriguez, 411 U.S. at 40.



23

Most importantly, the special admissions program has 
been demonstrated to be necessary and effective and 
“ promises realistically to work now.'’’ Green v. County 
School Board, 391 U.S. 430, 439 (1968). The achievement 
of so compelling a goal as the eradication of the continuing 
effects of past discrimination cannot be delayed on the 
speculation that other means to accomplish that goal may 
be found tomorrow.

CONCLUSION

The Court should not entertain this case on the 
merits. If it does so, the judgment of the California 
Supreme Court should be reversed.

Dated: June 7, 1977

R obert H ermann  
M.D. T aracido 

Puerto Bican Legal Defense 
and Education Fund 

95 Madison Avenue
New York, New York 1001.6

D ebra M. E venson 
B enito  R omano

1 Chase Manhattan Plaza 
New York, New York 10005

Attorneys for Amici Curiae

H oward C. B tjschman, III 
Willkie Farr & Gallagher 

1 Chase Manhattan Plaza 
New York, New York 10005 

Of Counsel.



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