DeRonde v. University of California Regents Brief Amicus Curiae

    IN THE
SUPREME COURT OF THE 
STATE OF CALIFORNIA

r

GLEN DeRONDE,
)
)

Plaintiff, Respondent,
)

v.
)

THE REGENTS OF THE UNIVERSITY 
OF CALIFORNIA, et al., )

3 Civil 116732

Defendants, Appellants. )
)

On Appeal From The Judgment Of The Court 
Of Appeal Of The State Of California In 
And For The Third Appellate District

BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE IN SUPPORT OF 
DEFENDANTS AND APPELLANTS, THE REGENTS 
OF THE UNIVERSITY OF CALIFORNIA

V

JACK GREENBERG 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR.

10 Columbus Circle 
Suite 2030
New York, New York 10019 
Telephone: (212) 586-9397

JOHN H. ERICKSON 
ALICE M. BEASLEY 
HENRY S. HEWITT 
ERICKSON, BEASLEY & HEWITT 

12 Geary Street
San Francisco, CA. 94108 
Telephone: (415) 781-3040

Attorneys for Amicus Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................. m

STATEMENT OF FACT ................................. 2
SUMMARY OF ARGUMENT ..............    4

ARGUMENT ..........................................  4

I. THE JUDGMENT BELOW SHOULD BE VACATED 
AND THE ACTION DISMISSED BECAUSE OF
MOOTNESS .................................. 5

II. THE UNIVERSITY'S REMEDIAL USE OF RACE 
CONSCIOUS ADMISSIONS CRITERIA IS A 
PERMISSIBLE MEANS FOR ELIMINATING THE
EFFECTS OF PRIOR DISCRIMINATION .........  7

A. Applicable Legal Standards ..........  7

B. History of Official Discrimination 
Against Blacks and Other
Minorities ...........................  1 1

C. Compliance With the Price
Standards ............................  22

III. THE LAW SCHOOL'S USE OF RACE CONSCIOUS 
ADMISSIONS CRITERIA IS A LEGITIMATE 
MEANS TO FURTHER IMPORTANT AND COMPELLING 
INTERESTS OF THE STATE ...................  2 6

CONCLUSION ........................................  33

Page

1



TABLE OF AUTHORITIES

Cases

Associated General Contractors of Massachusetts,
Inc. v. Altshuler, 490 F .2d 9 (1st Cir.
1973), cert, denied, 416 U.S. 957
(1974) ..... 77777."................................................... 1 5

Bakke v. Regents of the University of
California, 18 Cal.3d 34 (1976) ............. 6,26

Brice v. Landis, 314 F. Supp. 94 (N.D.
Cal. 1 969) ................................... 1 2

Brown v. Board of Education, 347 U.S. 483
("I 954) ........................................ 2, 1 3, 1 4,

1 5
Brown v. Weinberger, 417 F. Supp. 1215 (D.

D.C. 1 976) ................................... 1 2
Consol. Etc. Corp. v. United A. Etc. Workers,

27 Cal.2d 859 (1 946) ........................  5

Crawford v. Board of Education, 17 Cal.3d 
280, 130 Cal. Rptr. 724, 551 P.2d
28 ( 1 976) .................................... 1 2

DeFunis v. Odegaard, 416 U.S. 312 ( 1 974) ........  5

Gay Law Students Assn. v. Pacific Telephone 
& Telegraph Co., 24 Cal.3d 458, 156
Cal. Rptr. 1 4, 595 P.2d 592 ( 1 979) .........  28

Green v. County School of Board of New
Kent County, 391 U.S. 430 (1 968) ............ 14

Guey Heung Lee v. Johnson, 404 U.S. 1215
(1971) .......................................  18

Jackson v. Pasadena City School District,
59 Cal.2d 876, 31 Cal. Rptr. 606, 382
P. 2d 878 ( 1 963) (en banc) ...................  12

Page

Johnson v. San Francisco Unified School
District, 339 F. Supp. 1315 (N.D. Cal.
1971) vacated and remanded, 500 F .2d
349 (9th Cir. 1 974 ) .........................  12, 1 8,1 9

- i i -



Page

Kelsey v. Weinberger, 498 F.2d 701 (D.C.
Cir. 1 974) ................................... 12

Keyes v. School District No. 1, Denver, 413
U.S. 1 89 ( 1 973) .............................  1 5

Lau v. Nichols, 414 U.S. 563 ( 1 954) .............. 1 6
Louisiana v. United States, 380 U.S. 145

( 1 965) .......................................  1 4
People ex rel. Lynch v. San Diego Unified School 

District, 19 Cal. App.3d 252, 96 Cal.
Rptr. 658 (Ct. App. 1971) cert, denied
405 U.S. 1 016 ( 1 972) ........ '. . .............  12

McLaurin v. Oklahoma State Regents, 339
U.S. 637 ( 1 950) .............................  2

Milliken v. Bradley, 433 U.S. 267 (1977) ........  13,14,15
NAACP v. San Bernardino City Unified School 

District, 17 Cal.3d 311, 130 Cal.
Rptr. 744, 551 P. 2d 48 ( 1 976) ............... 1 2

Paul v. Milk Depots, Inc., 62 Cal.2d 129
( 1 964) .......................................  5,6

Pena v. Superior Court, 50 Cal. App.3rd 694,
123 Cal. Rptr. 500 (Ct. App. 1 975) .........  1 2

People v.. Riles, 343 F. Supp. 1306 (N.D.
Cal. 1972), affirmed, 502 F.2d 963
(9th Cir. 1 974) .............................. 1 1

People v. San Diego Unified School District,
19 Cal. App.3d 252, 96 Cal. Rptr. 658
(Ct. App. 1971) .............................  11

Price v. Civil Service Commission of Sacramento 
County, Cal.3d , 161 Cal. Rptr.
475, 604 P. 2d 1365 (1 980) ............... 2, 7,8,9, 10, 17,

23,24,25,26,27,
28,29,31,32,33

Regents of the University of California v.
Bakke, 438 U.S. 265 (1978) ................. 2,26,30,31

- iii -



San Antonio Ind. School District v. Rodriquez,
411 U.S. 1 ( 1 973) ...........................  28

Serrano v. Priest, 5 Cal.3d 584, 96 Cal. Rptr.
601 , 487 P. 2d 1 241 ( 1 971 ) ................... 28

Santa Barbara School District v. Superior 
Court, 13 Cal.3rd 315, 118 Cal. Rptr.
637, 530 P.2d 605 ( 1 975) (en banc) .........  12

Soria v. Oxnard School District Board of
Trustees, 386 F. Supp. 539 (C.D. Cal. 1974), 
on remand from 488 F .2d 577 (9th Cir. 1973), 
cert, denied 416 U.S. 95 ( 1 974) ............. 1 2

Spangler v. Pasadena City Board of Education,
311 F. Supp. 501 (C.D. Cal. 1 970) ..........  1 1

Testa v. Katt, 330 U.S. 386 (1 947) ............... 1 4
United Steelworkers of America, AFL-CIO v.

Weber, 443 U.S. 1 93 ( 1 979) ..................  26
Wysinger v. Crookshank, 82 Cal. 588,

23 P. 54 ( 1 890) .............................  1 7

Constitutional and Statutory Provisions
Constitution of the United StatesArt. VI, § 2 ................................. 14

Fourteenth Amendment ........................
Civil Rights Act of 1964, Title VII as

amended, 42 U.S.C. § 2000e ..................  9
Constitution of the State of California

Article I, section 7 ........................  10,15
General School Law of California, § 1662

at 14 (1 880) ................................. 17

Page

- i v -



Page

1860 c. 329, § 8 ..................................  17
1 863 c. 159, § 68   17
1 885 c. 1 17, 1662 ................................ 17
1893 c. 193, §1 662 ................................  17
1921 c. 685, § 1 ................................... 17
1947 c. 737, § 1 ................................... 17

Sacramento County Civil Service Commission
Rule 7.10 ....................................  9,10

Books
I. Hendrick, The Education of Non-Whites in

California, 1849-1970 (1977) ... ............  12,17
C. Wollenberg, All Deliberate Speed, Segregation 

and Exclusion in California Schools,
1855-1 9*7 5 ~( 1 97 6 ) .... . . . . .'.7 .7 .7 . 7..........  12,17

Other Authorities
California Legislature, Assembly Permanent

Subcom. on Post Secondary Education, Unequal
Access to College (1975) ....................  13,18,22,32

California Assembly Concurrent Resolution
No. 1 51 , 1 974 ............................... 1 9,21,32

California Legislature, Joint Committee on
Higher Education, The Challenge of Achieve- 
ment: A Report on Public and Privace
Higher Education in California 77 
(1 969) .......................................  2 0 , 2 2

v



Page

California Legislature, Joint Committee on the 
Master Plan for Higher Education, Report
No. 33,37 ( 1 973) ............................  21

California Coordinating Council for Higher 
Education, J. Kitano & D. Miller, An 
Assessment of Educational Opportunity 
Programs in California Higher Education(1 970) .......................................  23

California Postsecondary Education Commis­
sion, Planning for Postsecondarv Education 
in California: A'Five "Year Plan Update,
1 977-1 978, 32-34 ( 1 977)“. .. . .7777777777.....  20

California State Department of Education,
Racial and Ethnic Survey of California 
Public Schools, for Fall T963" "(1 967)
Fall 1968'"(1969) and Fall 1970 (1971) ......  16,18

Center for National Policy Review, Trends
in .Black School Segregation, 12970-1974, Vol. I 
( 1 977) and Trends in His'panic Segregation.
1 970-19 7 4, voTV 'll (1977) ............ 7777... 16

Governor's Commission on the Los Angeles Riots,
Violence in the City; 49 et seq., (1965) ___  13,18

HEW's Directory of Public Elementary and
Secondary Schools in Selected Districts,
Enrollment and Staff By Racial/Ethnic 
Groups, for Fall 1968 (1970) Fall 1970
(T972), and Fall 1972 (.1974 ) 777777777......  16

22 Cal. Dept, of Justice, Opinions of the 
Atty. Gen., Opinion 6735a (January
23, 1 930) at 931-932 ........................  1 7

U.S. Bureau of the Census, Historical
Statistics of the United States, Colonial
Times to 1970,'Pa~rt 1, 25 (1 976) ......... . 16

U.S. Bureau of Census, 1970 Census of Popula­
tion, Series PC (2)-2A State of Birth337“ 61 (1 973) ................................ 16

U.S. Bureau of the Census, Current_Population 
Reports, Series P-23, No. 46; The Social 
and Economic Status of the Black 
Population in the United States, 1972 at

(1973) --- ...----77.'.';.... ..............  16
vi



Page

Bureau of the Census' Statistical Abstract
of the United States, 1976, p. 133 (1976) ... 16

United States Civil Rights Commission, Mexican- 
American Education Study Reports
I-VI (1 971-1974) ............................  13, 18

VI1



IN THE
SUPREME COURT OF THE 
STATE OF CALIFORNIA

GLEN DeRONDE, )
Plaintiff, Respondent, ) 3 Civil 116732

v.
)THE REGENTS OF THE UNIVERSITY

OF CALIFORNIA, et al., )
Defendants, Appellants. )

)

On Appeal From The Judgment Of The Court 
Of Appeal Of The State Of California In 
And For The Third Appellate District

BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE IN SUPPORT OF 
DEFENDANTS AND APPELLANTS, THE REGENTS 
OF THE UNIVERSITY OF CALIFORNIA

1. The NAACP Legal Defense and Educational Fund,
Inc., is a nonprofit corporation established under the laws 
of the State of New York.

It was formed to assist black persons in securing their 
constitutional and other civil rights by prosecuting and 
defending lawsuits. Its charter declares that its purposes



include rendering legal services gratuitiously to Negroes 
suffering injustice by reason of racial discrimination. For 
many years, attorneys for the Legal Defense Fund have 
represented black persons seeking to achieve equal oppor­
tunity in public education, e.g., Brown v. Board of Education, 
347 U.S. 483 (1954); McLaurin v. Oklahoma State Regents,
339 U.S. 637 (1950). As part of this representation, attor­
neys for the Legal Defense Fund filed an amicus curiae brief 
for consideration by the Supreme Court of the United States 
in Regents of the University of California v. Bakke, 438 U.S.
265 (1978).

The Legal Defense Fund believes that its litigation 
experience in the fields of discrimination, public education, 
and affirmative action may be of assistance to the Court in 
the present case. This amicus curiae brief is filed pursuant 
to the Court’s order of April 28, 1980. It supports the 
position of the defendants in this action.

STATEMENT OF FACT

For the purposes of this brief, amicus curiae accept the 
facts as stated by the Court of Appeal below. Because that 
court held that the admissions criteria of the School of Law 
of the University of California at Davis contravened article I, 
section 7 of the California Constitution, but did not violate 
federal requirements as set forth in Regents of University of 
California v. Bakke, 438 U.S. 265 (1978), the scope of this o f ’ 
amicus curiae brief is limited to the narrow question of whether 
the implementation of the University's admissions criteria con-

2



stitutes a violation of California State law, as determined 
by article I, section 7 of the State Constitution.

In making its decision below, the Court of Appeal 
ignored the history of discrimination against minorities 
committed by educational institutions of the State of Califor­
nia. Because this history is relevant for understanding the 
remedial purposes of the Law School's affirmative action 
program, we have endeavored in this brief to set forth 
judicially cognizable facts concerning the nature and extent 
of prior discrimination against minorities in California.
These facts, we contend, demonstrate that the Law School's use 
of race conscious admissions criteria is reasonable and 
permissible under the State Constitution. Furthermore, they 
show that the lower court erred when it held that this 
Court's recent decision in Price v. Civil Service Commission
of Sacramento County, _ __ Cal.3d ___, 161 Cal. Rptr. 475, 604
P.2d 1365 (1980), was inapplicable to the facts of this case.

Finally, it is submitted that these facts evidence 
the existence of a parallelism between historical practices 
in California of racial discrimination against minorities 
and similar historical practices across the nation of racial 
discrimination against minorities. Thus, the facts show 
that there is no basis in reason for interpreting the equal 
protection guarantees of the California Constitution to 
be more restrictive than the federal equal protection clause 
of the remedial use of race conscious affirmative action 
programs for minorities.

3



SUMMARY OF ARGUMENT

Several reasons exist for vacating the judgment below 
and dismissing the action.

First, plaintiff's graduation from law school deprives 
the Court of any substantial reasons for deciding the merits 
of this case and requires instead that the lower court's 
judgment be vacated and the action dismissed for mootness.

Second, the race conscious admissions policy of the 
School of Law of the University of California is, under 
California law, a reasonable means for discharging the 
State's duty to eradicate the lingering, injurious conse­
quences of racial discrimination.

Third, the Law School's remedial use of race conscious 
admissions criteria represents a legitimate attempt, based 
upon judicial, executive, and legislative findings, to 
satisfy lawful governmental and educational purposes.

ARGUMENT

I. THE JUDGMENT BELOW SHOULD BE VACATED AND 
THE ACTION DISMISSED BECAUSE OF MOOTNESS

The judgment entered below should be vacated and the 
action dismissed on grounds of mootness. Plaintiff prayed 
for an order declaring his entitlement to admission to the 
School of Law at the University of California at Davis, and 
for an injunction ordering defendants to admit him to the

4



School of Law. The complaint, however, failed to include aVclaim for damages.
At trial, plaintiff testified that following his rejec­

tion for admission by the defendant School of Law, he intended 
to enroll at the University of San Diego School of Law (R.T.,
p. 17). He duly enrolled in the San Diego School of Law and

2/
subsequently graduated from there.

In light of plaintiff's graduation from law school 
the action has become moot and should be dismissed. See 
DeFunis v. Odegaard, 416 U.S. 312 (1974). It has been the 
consistent holding of this Court that the state courts of 
California are not to be used for the purpose of addressing 
moot questions or deciding abstract propositions. Consol.
Etc. Corp. v. United A. Etc. Workers, 27 Cal.2d 859, 863 
(1946). This principle was affirmed in Paul v. Milk Depots,

1/ At the conclusion of the trial, plaintiff moved to 
amend his complaint to include a claim for damages. The 
motion was denied on the ground that plaintiff had acted 
unwarrantedly in delaying the filing of his claim for 
damages. The court also denied the motion on the ground that 
plaintiff had, in fact, suffered no damages. The Court of 
Appeal below found that the trial court had not abused its 
discretion in denying the motion on these grounds.
2/ During his enrollment at the University of San Diego
School of Law, plaintiff applied for transfer to the School 
of Law of the University of California at Davis for enroll­
ment there during his second year. However, he subsequently 
withdrew the application before it had been considered by the 
Law School (C.T. Vol. II, pp. 49-54).

5



I_nc. , 62 Cal. 2d 1 29 (1964), where an action raising the issue 
of the power of the California Department of Agriculture to 
fix minimum prices was ordered dismissed after the plaintiff
had lost its license to do business. The Court stated there 
that

It is settled that "the duty of this Court, 
as of every other judicial tribunal, is to 
decide actual controversies by a judgment 
which can be carried into effect, and not 
to give opinions upon moot questions or 
abstract propositions, or to declare prin­
ciples or rules of law which cannot affect 
the matter in issue in the case before it."

Paul v. Milk Depots, Inc., supra, 62 Cal.2d at 132. The
principle stated in Paul, supra, is equally applicable to the
facts of the present case.

Moreover, there are no special circumstances present 
here which would support making an exception to this general 
rule. While it is possible that the issue raised here by the 
plaintiff may be recurrent, there is no need to decide the 
facts of this particular case since the issue is not one 
which will necessarily evade judicial review as a result of 
mootness. See this Court's opinion in Bakke v. Regents of 
the University of California, 18 Cal.3d 34 (1976). Thus, 
there is no reason here to make an exception to the general 
rule requiring the dismissal of moot actions.

6



II. THE UNIVERSITY'S REMEDIAL USE OF RACE CONSCIOUS 
ADMISSIONS CRITERIA IS A PERMISSIBLE MEANS FOR 
ELIMINATING THE EFFECTS JOF PRIOR DISCRIMINATION _

A . Applicable Legal Standards
In Price v. Civil Service Commission of Sacramento

County, ___ Cal.3d ___, 161 Cal. Rptr. 475, 604 P.2d 1365
(1980), this Court set forth the legal principles, as deter­
mined by State law, governing the validity of remedial, race 
conscious, affirmative action programs. It held that public 
agencies of the State of California may, consistently with 
the laws of California and the United States, voluntarily 
adopt race conscious, affirmative action programs, including 
the use of goals and timetables, for the purpose of alleviat­
ing underrepresentation of minorities caused by past dis­
criminatory practices of the State.

The decision in Price, supra, supports the validity 
of affirmative action programs involving the use of admis­
sions criteria which permit universities to give favorable 
consideration to an applicant's status as a member of a 
minority group in determining the applicant's eligibility of 
admission. Under the Court's rationale in Price v. Civil 
Service Commission of Sacramento County, supra, the use by 
admissions officers of race conscious admissions criteria 
is proper if used for the purpose of reducing the under­
representation of minorities in higher education which exists 
by virtue of the injurious effects of racial discrimination. 
The decision in Price, supra, is therefore an adequate basis

7



for sustaining the Law School's use of its race conscious 
admissions criteria.

In Price, supra, the Sacramento County Civil Service 
Commission conducted in 1974 an extensive investigation of 
the county's past hiring practices. the investigation showed 
that the traditional civil service selection procedures, 
including the use of alleged objective written examinations, 
operated to discriminate against minorities. The Commission 
found, and the Court in Price affirmed, that the County's 
written civil service examinations frequently bore little or 
no relationship to the requirements of the employment posi- 
tions for which the examinations were allegedly designed.

As a result of the County's discriminatory practices, 
members of minority groups were substantially underrep­
resented in the workforce of Sacramento County. To counter 
the effects of the discrimintory practices, the Commission 
adopted a regulation which required that adjustments be made 
in the disproportionate representation of minority personnel 
in the County's employment caused by prior discriminatory 
employment practices.

As part of its implementation of the regulation, the Com­
mission announced that it would require, where appropriate, 
public agencies of the county to hire minority persons on a 
preferential basis from an eligible list. The Commission 
further provided that any program of preferential hiring for 
minorities adopted by a public agency in pursuance to the regula­
tion must terminate in any job classification once a fair

8



approximation of minority representation, consistent with the
pupulation mix of the County of Sacremento, existed in the 

3/
classi fication.

When the Commission sought to compel compliance with 
its rules by the County's district attorney's office, the 
latter commenced an action in the trial court below to 
declare the Commission's rules and procedures to be in 
violation of local, state, and federal laws. This Court 
rejected the challenge. It held that the preferential hiring 
program satisfied the requirements of local law, California's 
statutes, Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.S. § 2000e, and the Constitutions of Califor­
nia and the United States. In upholding the Commission's 
actions, the Court said:

Inasmuch as the Commission after a duly 
authorized investigation ... determined 
that it had grounds to suspect that the 
County's past competitive examinations 
had had a racially discriminatory effect 
and that such examinations were not job- 
related, we have no doubt that the Com­
mission's enforcement authority empowered 
it to take action to remedy the situation.
Under these circumstances, the promulgation 
of an affirmative action plan, directed spe­
cifically at ameliorating minority under­
representation which is found to have re­
sulted from the County's own discriminatory 
employment practices, falls within the 
authority of the Commission.

3/ Rule 7.10 of the Sacramento County Civil Service Com­
mission. Rule 7.10 also provided, the Court noted, for 
"'continuing oversight' ... so as to enable the Commission 
to guarantee that the order ... will not impose undue bur­
dens on ... interested parties". Price, supra, 604 P.2d at 
1381. See also Rule 7.10(f) of the Sacramento County 
Civil Service Commission.

9



Price, supra, 604 P.2d at 1372. In subsequent parts of its 
opinion, the Court specifically noted that the equal protec­
tion clause of the Constitution of the State of California 
was not a bar to the adoption of affirmative action plans 
promulgated in accordance with Rule 7.10. Price, supra, 604 
P.2d at 1382, 1383.

This Court's decision in Price conclusively determined that 
the equal protection provisions of the California State Con­
stitution does not prohibit a public agency's use of a race 
conscious affirmative action program to alleviate an under­
representation of minority groups attributable to prior dis­
crimination by public agencies of the State. The Court 
recognized, however, that in attempting to design remedies to 
eliminate the consequences of prior discrimination and to 
correct an imbalance in minority representation, it would be 
necessary to afford the State sufficient latitude to take 
into account the present condition of minorities in the 
State. In addressing itself to this problem, the Court 
stated that:

Our past decisions construing Artitle I, 
section 7, subdivision (a) reflect this 
Court's recognition of the importance of 
interpreting the provision in light of 
the realities of the continuing problems 
faced by minorities today. 4/

4/ Article I, section 7 of the California State Consti­
tution reads as follows:

10



604 P.2d at 1382. It is submitted that the Law School's use 
of race conscious admissions criteria is addresssed to the 
"realties of continuing problems faced by minorities" today 
in California, and that it is specifically designed to reduce 
the extent of the underrepresentation of blacks, and other 
minorities, caused by prior discrimination. The truth of 
this assertion is borne out by the history in California of 
extensive discrimination against minorities in the field of 
public education. What follows constitutes a cursory review 
of that history.

B. History of Official Discrimination Against Blacks
and Othe Minorities_______________________________
The history of racial discrimination against blacks and 

other minorities in the public schools in California has been 
well documented. See e.g., Spangler v. Pasadena City Board 
of Education, 311 F. supp. 501 (C.D. Cal. 1970). People v. 
San Diego Unified School District, 19 Cal. App.3d 252, 96 
Cal. Rptr. 658 (Ct. App. 1971); People v. Riles, 343 F. Supp. 
1306 (N.D. Cal. 1972), affirmed, 502 F.2d 963 (9th Cir.

4/ cont'd.

(a) A person may not be deprived of life, 
liberty, or property, without due pro­
process of law or denied equal protection 
of the laws.

(b) A citizen or class of citizens may not be 
granted privileges or immunities not 
granted on the same terms to all citizens. 
Privileges or immunities granted by the 
Legislature may be altered or revoked.

11



1974); Kelsey v. Weinberger, 498 F.2d 701, 704 n.19 (D.C.
Cir. 1974); Soria v. Oxnard School District Board of Trustees, 
386 F. Supp. 539 (C.D. Cal. 1974), on remand from 488 F .2d 
577 (9th Cir. 1973), cert, denied 416 U.S. 95 (1974);
Brice v. Landis, 314 F. Supp. 94 (N.D. Cal. 1969); Brown

Vv. Weinberger, 417 F. Supp. 1215, 1223, (D. D.C. 1976).
In addition to judicial decisions evidencing the exis­

tence in the State of wide-spread practices of official acts 
of discrimination against minorities, there exists a consider­
able body of the literature which also attests to the 
pervasiveness of racial discrimination in California's 
public schools. See, e.g., C. Wollenberg, All Deliberate 
Speed, Segregation and Exclusion in California Schools,
1855-1975 (1976); I. Hendrick, The Education of Non-Whites in 
California, 1849-1970 (1977). Thus, there is abundant 
authority establishing the state-wide scope of racial 
discrimination and showing the devastating impact of segrega­
tion and discrimination upon the lives of minority group

5/ Also see Crawford v. Board of Education, 17 Cal.3d 280,
1*30 Cal. Rptr. 724, 551 P.2d 28 (1 976); People ex rel.
Lynch v. San Diego Unified School District, 19 Cal. App.3d 
252, 96 Cal. Rptr. 658 (Ct. App. 1971), cert. denied 405 
U.S. 1016 (1972); Jackson v. Pasadena City School District,
59 Cal. 2d 876, 31 CalT"Rptr.' "6'0'6,.J8'2"p"'.T3"878( 1 963)-----
(en banc); Pena v. Superior Court, 50 Cal. App.3rd 694,
123 Cal. Rptr. 500 (Gt. App. 1975); NAACP v. San Bernardino 
City Unified School District, 17 Cal.3rd 31 1 , 130 Cal.
Rptr. 744, 551 P.2d 48 (9176); Santa Barbara School District 
v. Superior Court, 13 Cal.3rd 315, 319, 118 Cal. Rptr. 637,
530 P. 2d 605 (T975) (en banc). See also Johnson v. San 
Francisco Unified School District, 339 F. Supp. 1315 (N.D.
Cal. 1971), vacated and remanded, 500 F.2d 349 (9th Cir. 1974).

12



members. Moreover, these authorities, and others, show 
that, as a result of school segregation, minority students 
have suffered severe educational deprivations. See Governor's 
Commission on the Los Angeles Riots, Violence in the City;
49 et seq. , ( 1 965); California Legislature, Assembly Per­
manent Subcom. on Post Secondary Education, Unequal Access to

y  — --------------------------------------

College (1975). The evidence shows that the impact
of segregation and discrimination has been particularly
harmful for the minority- students who are preparating for
enrollment in institutions of higher education. They are, in
several respects, hampered by their education in a segregated

»
environment.

In Brown v. Board of Education, 347 U.S. 483 (1954), The
Supreme Court noted that primary and secondary education is a
"principal instrument in ... preparing (the child) ... for
later professional training." 347 U.S. at 493. Moreover,
the Supreme Court, in its decision in Brown v. Board of
Education, made elaborate findings of the far-reaching
effects which segregated education had upon the educational
and mental development of minority school children. For
example, with respect to minority children in grade and
high school, it found that:

To separate them from others of similar 
age and qualifications solely because 
of their race generates a feeling of

6/ Also, United States Civil Rights Commission, Mexican- 
American Education Study Reports I-VI (1971-1974).

13



inferiority as to their status in the com­
munity that may affect their hearts and minds 
in a way unlikely ever to be undone....

347 U.S. at 494. Accordingly, it concluded
"Segregation of white and colored children 

in public schools has a detrimental effect 
upon the colored children. "Id̂ . 7/

The State has a duty to alleviate the effects of its own 
discrimination. Under federal law, the public agency respon­
sible for discrimination has the "primary responsibility" for
remedying it. Milliken v. Bradley, 433 U.S. 267, 281 (1977).

8/
This is, of course, also the rule under State law. The 
duty is to "eliminate the discriminatory effects of the past 
as well as bar like discriminatory effects in the future." 
Louisiana v. United States, 380 U.S. 145, 154 (1965). The 
scope of the duty extends to the elimination of the vestiges 
of past discrimination "root and branch." Green v. County 
School Board of New Kent County, 391 U.S. 430, 438 (1968).

In assessing the extent of a State's obligation to 
eliminate the consequences of past discrimination, public 
officials, including public officials of California, must 
realize that "discriminatory student assignment policies can 
themselves manifest and breed other inequalities . . ."

7/ For some of the literature of the effects of school 
segregation on minority students, see footnote 11, in Brown v. 
Board of Education, supra.
8/ Under the Supremacy clause of the United States Con­
stitution, Art. VI, § 2, the policy of a federal constitu­
tional or statutory provision is "the prevailing policy 
in every state." Testa v. Katt, 330 U.S. 386, 392 (1947).

14



Milliken v. Bradley, supra, 433 U.S. at 283. As the Supreme
Court noted in the Denver school desegregation case, "common 
sense dictates the conclusion that racially inspired school 
board actions have an impact beyond the particular schools 
that are the subjects of those actions." Keyes v. School 
District No. 1, Denver, 413 U.S. 189, 203 (1973). In par­
ticular, the existence of discrimination and segregation at 
the primary and secondary levels affects the availability 
of educational opportunities at the higher educational level. 
Brown v. Board of Education, supra, 347 U.S. a5 493.

Ascertaining the full extent of the effects of unlawful 
discrimination, however, is not always a simple task.
There are many complexities in the situation. This is 
especially true when the task is to redress the effects of 
educational deprivations in primary and secondary schooling. 
Because of the difficulties and the need to devise remedies 
to existinguish the advise effects of unlawful discrimination, 
the courts have recognized that "the discretionary power of 
public authorities to remedy past discrimination is even 
broader than that of the judicial branch." Associated General 
Contractors of Massachusetts, Inc, v. Altshuler, 490 F .2d 9,
17 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974).

The pervasiveness of the effects in California of for­
mer conditions of segregation and discrimination in the public 
schools warrants the adoption of state-wide measures to redress 
the continuing educational deprivation of minority students.

15



For example, in 1972, approximately three-quarters of the
black students in the elementary and secondary public schools
of California attended schools which were 50-100% black,

2 /Chicano, Asian or Indian." Moreover, substantial num­
bers of black students, and other minority students, attended 
schools in districts previously found to have been in viola-

^O/
tion of federal or state laws prohibiting school segregation. 
Additionally, it should be noted, that a considerable portion 
of the black students in California eligible for enrollment 
in the University of California probably received a substan­
tial part of their education in schools in Southern states

11/where conditions of d^ jure segregation existed. This fact

9/ Forty percent of the black students attended schools 
which were 95-100% minority. Bureau of the Census' Satisti- 
cal Abstract of the United States, 1976, p. 133 (1976); HEW's 
Directory of Public Elementary and Secondary Schools in 
Selected Districts, Enrollment and Staff By Racial/Ethnic 
Groups, Fall 1968 (1T7fl77"F a rT~r?7Trm 7 2 )7 'and"~FafTT97? 
(1974). Also California State Department of Education,
Racial and Ethnic Survey of California Public Schools, 
for Fall 1'966 ( V967)T Fall Tf66'(1'969) and' YaTl T575" (1971); 
Center for National Policy Review, Trends in Black School 
Segregation, 1970-1974, Vol. I (1977) and Trends in Hispanic 
Segregation, 19/0—1974, Vol. II (1977).
10/ See cases cited in footnote 5 and text accompanying same. 
Also see Lau v. Nichols, 414 U.S. 563 (1954); and HEW's 
Directory of Public Elementary and Secondary Schools in 
Selected Districts, Enrollment and Staff by Racial/Ethnic 
Groups, Fall 1970, supra.
11/ According to Census reports, 42% of California's black 
population was born in the South. See U. S. Bureau of Census, 
1970 Census of Population, Series PC (2)-2A, State of Birth, 
55, 61 (1973). Also, U. S. Bureau of the Census, Current 
Population Reports, Series P-23, No. 46; The Social and 
Economic Status of the Black Population in the United States, 
1972 at 12 (1973); U. S. Bureau of the Census, Historical 
Statistics of the United States, Colonial Times to 1^70,
Part 1, 25 (1976).

16



is important in view of this Court's statement in Price
that article I, section 7 of the California Constitution
must be construed "in light of the realities of the continuing
problems faced by minorities today," Price, 604 P.2d at 1382.

The history of discrimination and segregation which11/has characterized the public schools of California justi­
fies the adoption by this Law School, and other schools of 
the University of California, of admissions criteria which 
consider race as one of the factors requiring competitive 11/evaluation in the determination of eligibility for admission. 
Indeed, an examination of the groups denominated by the Law 
School as the minority groups whose members are entitled to 
have their race taken into account for the purpose of admis­
sion, shows that discrimination and segregation were practiced11/in the public schools against each group listed.

12/ At one time, California law specifically provided for 
the maintenance of separate schools for blacks. 1860 Cal. 
Stats., c. 329, § 8 ; 1863 Cal. Stats., c. 159, § 6 8, but 
in 1880 the statute was repealed. General School Law of 
California § 1662 at 14 (1880). The repeal, however, did 
not end the practice of segregation and discrimination 
against black students. See Wysinger v. Crookshank, 82 
Cal. 588, 23 P. 54 (1890); I. Hendrick, supra, at 78-80, 
98-100. The repeal of statutes permitting separate schools 
for other minorities, however, did not occur until 1947. See 
1947 Cal. Stats., c. 737, § 1.
13/ In other contexts, this Court has noted that "state 
policy strongly favors the adoption of ... voluntary 
affirmative action plans." Price, supra, 604 P.2d at 1372.
14/ Separate schools were once maintained for the various 
racial groups. See 1885 Cal. Stats., c. 117 § 1662 (Chinese); 
1893 Cal. Stats., c. 193, § 1662 (Indiana); 1921 Cal. Stats., 
c. 685, § 1 (Japanese); Mexican American were regarded as 
Indians. 22 Cal. Dept, of Justice, Opinions of the Atty.
Gen. Opinions 6735a, (January 23, 1930) at 931-932.

17



Governmental bodies of the State of California have
confirmed the existence of past discrimination in the school 
system and the denial of equal educational opportunities to 
minorities in institutions of higher education. See e.g., 
Governor's Commission on the Los Angeles Riots, supra; 
California Legislature, Assembly Permanent Subcommittee on15/
Postsecondary Education, Unequal Access to College, supra. 
Furthermore, the California State Department of Education has 
found that

despite efforts to implement the policies 
of the State Board of Education and the 
progress made by the Department of Education, 
the task of eliminating segregation and pro­
viding equal educational opportunities remains 
formidable.

California State Department of Education, Racial and Ethnic 
Survey of California's Public Schools, Fall 1966, iii (1967).

The failure of the State initially to make energetic 
efforts to elininate the adverse consequences of prior dis­
crimination was singled out by Justice Douglas in Guey v.16/
Heung Lee v. Johnson, 404 U.S. 1215 (1971). He noted,

14/ cont'd.
The Law School's admissions program defined minorities as 

"Native American, Black, Filipino, Asian, and Chicano."
15/ See also U. S. Civil Rights Commission, Mexican American 
Education Study, Reports I-VI (1917-1974) and cases cited in 
footnote 5 and text accompanying same.
16/ The district court's order in Johnson v. San Francisco 
Unified School District, 339 F. Supp. 1315 (N.D. Cal. 1971) 
was vacated by the Court of Appeals for the Ninth Circuit and 
the action was remanded to the district court to determine if 
the school board had acted with a discriminatory purpose. 559 
F.2d 349 (9th Cir. 1974).

18



in a memorandum opinion denying an application by Americans
of Chinese ancestry for a stay of a district court order
reassigning pupils of Chinese ancestry in order to reduce
racial imbalance in certain schools in California, that the
district court had made

findings that plainly indicated the force 
of the old polcy has persisted: "(T)he
school board ... had drawn school attend­
ance lines, year ater year, knowing that 
the lines maintain or heighten racial 
imbalance." And further, that no evidence 
has been tendered to show that since Brown I 
"the San Francisco school authorities had 
ever changed any school attendance line 
for the purpose of reducing or eliminating 
racial imbalance." 404 U.S. at 1216, quoting 
from Johnson v. San Francisco Unified School 
District, 339 F. Supp. 1315, 1319 (N.D. Cal.
1971).

In recent years, however, there has been accumulating 
evidence of the State's interest in carrying out its consti­
tutional function of eliminating the vestiges of discrimina­
tion. A resolution has been enacted by the Legislature of 
the State requiring the adoption, by educational authorities, 
of steps to "overcom(e) .. ethnic ... underrepresentation in 
the makeup of the student bodies of institutions of public 
higher education." California Assembly Concurring Resolution 
No. 151, 1974 Cal. Stats., Res. c. 209. Even prior to this 
time the State had, acting through the University of California 
in 1964-65, the California State University of Colleges in 
1966-67, and the California Community Colleges in 1969-1970,

19



instituted undergraduate "Equal Opportunity programs" to 
increase opportunities for socio-economically disadvantaged 
students. Experience, however, was later to show that these 
programs were not sufficient to provide for equal educational 
opportunities for minority students in higher education. See 
e.g., California Legislature, Joint Com. on Higher Education, 
The Challenge of Achievement; A Report on Public and Private 
Higher Education in California 77 ( 1 969); California Post- 
secondary Education Commission, Planning for Postsecondarv . 
Education in California; A Five Year Plan Update, 1977-1972, 
32-34 (1977). In light of this failure, the University of 
California turned to the adoption of affirmative actions 
programs. California Postsecondary Education Commission, 
supra, 43-34.

The California Legislature has clearly perceived that a
connection exists between the quality of education made
available in the primary and secondary schools of the State
and the ability of graduates of those schools to obtain
admission to institutions of higher education. In a report by
one of its committees, of the Legislature found that:

(E)quality of opportunity in post-secondary 
education is still a goal rather than a 
reality. Economic and social conditions and 
early schooling must be significantly improved 
before equal opportunity can be realized. But 
there is much that can be done by and through 
higher education.

17/

17/ These programs provided assistance in the areas of re­
cruitment, tutoring, financial aid, etc. California Post­
secondary Education Commission, supra, 32-34.

20



California Legislature, Joint Committee on the Master Plan 
for Higher Education, Report 33, 37 (1973). Following thi 
report, the Legislature adopted Assembly Concurrent Resolu 
tion No. 151 (1974). This Resolution provides, in part, 
as follows:

"WHEREAS, The Legislature recognizes 
that certain groups, as characterized by 
sex, ethnic, or economic background, are 
underrepresented in our institutions of 
public higher education as compared to the 
proportion of these groups among recent 
California high school graduates; and

"WHEREAS, It is the intent of the 
Legislature that such underrepresentation 
be eliminated by providing additional 
student spaces rather than by rejecting 
any qualified student; and

"WHEREAS, It is the intent of the 
Legislature to commit the resources to 
implement this policy; and

"WHEREAS, It is the intent of the 
Legislature that institutions of public 
higher education shall consider the fol­
lowing methods for fulfilling this policy;

(a) Affirmative efforts to search 
out and contact qualified students.

(b) Experimentation to discover 
alternate means of evaluating student 
potential.

(c) Augmented student financial 
assistance programs.

(d) Improved counseling for dis­
advantaged students;

now, therefore, be it
"Resolved_by_ the Assembly of the State 

of California, the Senate thereof con­
curring, That the Regents of the Uni­
versity of California, the Trustees of 
the California State University of Col­
leges, and the Board of Governors of 
the California Community Colleges are



hereby requested to prepare a plan that 
will provide for addressing and over­
coming, by 1980, ethnic, economic, and 
sexual underrepresentation in the make­
up of the student bodies of institu­
tions of public higher education as com­
pared to the general ethnic, economic, 
and sexual composition of recent Califor­
nia high school graduates ..."

Following the adoption of this Resolution, it was noted
by one of the Committees of the Legislature that

"In adopting Assembly Concurrent Resolution 151 (1954), 
the Legislature acknowledged that additional effort 
by colleges and universities is necessary to over­
come underrepresentaion of ethnic minorities and the poor. 18/

California Legislature, Assembly Permanent Subcom. On Post­
secondary Education, supra, Unequal Access To College 1 (1975).

C . Compliance With The Price Standards
This review of the history of discrimination in Califor­

nia and the State's response to it demonstrates several 
points. First, it shows that there is ample proof that 
discrimination in California against minorities has been 
continuous and systematic in the field of public education. 
Second, it establishes that discrimination against minorities 
in primary and secondary education has caused minority 
students to suffer educational deprivation at these levels

18/ The Report of the Joint Committee on the Master Plan 
for Higher Education, supra, at 38, had recommended that:

Each segment of California public higher 
education shall strive to approximate by 
1980 the general ethnic, sexual, and eco­
nomic composition of the recent California 
high school graduates.

22



and in higher education. Third, it shows the reasona­
bleness of efforts to eradicate vestiges of discrimination by 
adopting race conscious policies in higher education.
Fourth, it shows that the Law School's use of a race conscious 
admissions criteria is in consonance with State policy as 
defined by the Legislature and required by the courts. There 
is therefore, in view of this history and the conformity of 
the Law School's action to State policy, an adequate basis 
for this Court to find that the Law School's adoption of a 
remedial, race conscious admissions program is in compliance 
with the Court's decision in Price v. Civil Service Commission 
of Sacramento County, supra.

It was conceded below that admission to the Law School 
of the University of California at Davis is governed by 
a variety of different criteria. The criteria determining 
admissions included the use of the following factors: (1 ) the 
predicted first year academic grades (PFYA) based upon the 
college grade point average and the score of the Law School 
Admissions Test (LSAT); (2) growth, maturity, and commitment 
to law study; (3) previously existing factors, such as 
temporary handicaps and changes in school environment, which

19/

I V  The California Coordinating Council for Higher Education, 
subsequently renamed the California Postsecondary Education 
Commission, found that: "(0)ne of the most serious blocks
to participation in higher education for minority students 
occurs in the secondary educational system." California 
Coordinating Council for Higher Education, H. Kitano & D. 
Miller, An Assessment of Educational Opportunity Programs 
in California Higher Education (1970)' at ~3.

23



adversely affected grades; (4) evidence other than grades and
LSAT scores which indicate ability and motivation; (5) ethnic

20/
minority status, and (6 ) economic disadvantage. No 
quotas were applied by the Law School with respect to its 
admissions criteria. Ethnic minority status was merely one 
of the factors which admissions officers could take into 
account.

Testimony offered at trial by Professor Edward L.
Barrett, who was the founding Dean of the Davis Law School, 
established that it was necessary to give consideration to 
ethnic minority status in the Law School's admissions criteria. 
Such consideration was necessary, he testified, (1) to insure 
that the legal profession in California encompassed a "reason­
able cross section of society" (R. T., p. 155); (2) to 
obtain a class in the law school that "reflects, to a signifi­
cant degree, the community at large (C. T. Vol. I, p. 71); 
and (3) to insure that the Law School would not "exclude 
from the legal profession, under the current circumstances, 
the greatest bulk of the minority applicants" (R. T., p.
157). Professor Barrett testified emphatically that without 
the use of race conscious criteria, minority students 
"would not get into the law school and they would not get 
into the legal profession". (R. T., p. 157).

On these facts, this Court's decision in Price, supra, is 
determinative. The proof of discrimination against minorities

20/ See footnote 14, supra.

24



in the field of public education is overwhelming. Indeed, it
is confirmed by the findings of virtually every agency of
State government which has considered the problem. Under
these circumstances, Price requires that California's
constitutional and statutory laws not be used to prohibit or
frustrate reasonable application of race conscious criteria
to remedy underrepresentation of minorities substantially
caused by official acts in California of racial discrimination.
This holding in Price is clear and unequivocal. Examining
the underlying need for affirmative action programs, this
Court noted in Price, supra, that:

Only in the last quarter century ... have 
we undertaken a serious and concerted effort 
to eliminate the pervasive discrimination 
long endured by minorities in our society ...
We have found that affirmative steps are at 
time necessary to overcome the legacy of past 
degredation of minorities and to bring minor­
ities into full membership in American society.
One such instance of that essential affir­
mative action is the correction of an em­
ployer's past discriminatory employment prac­
tice by a race-conscious ... program ...

Price, supra, 604 P.2d at 1383. Given this declaration by the
Court, it is clear that the holding of Price is applicable in
the field of higher education and that therefore the lower
court erred in refusing to apply Price to the facts of this
case. On this ground alone, the judgment below should be
vacated and the action dismissed.

This result is especially necessary since the Law School's 
use of its race conscious admissions criteria does not unnecessarily

25



trammel upon the interests of white applicants for 
admission. The record shows that the Law School has made 
every effort to insure that all qualified applicants are 
given an individual assessment of their worth, quality, and 
potential contribution. Furthermore, as Professor Barrett's 
testimony establishes, the Law School's use of the special 
admissions criteria will terminate once there is no longer an 
underrepresentation of minorities in the Law School (R. T. 
pp. 154-157). The application of Price, supra, is, under 
these circumstances, clear. There can be no doubt that the 
requirements set forth in Price for sustaining the use of 
race conscious criteria are satisfied. Accordingly, the 
decision of the Law School to employ its admissions criteria 
to lessen the effects upon minority students of prior dis­
crimination committed against them must be sustained.

11/

III. THE LAW SCHOOL'S USE OF RACE CONSCIOUS
ADMISSIONS CRITERIA IS A LEGITIMATE MEANS 
TO FURTHER IMPORTANT AND COMPELLING 
INTERESTS OF THE STATE

The vice of the holding below was the assumption by the 
court of appeal that the Law School's admissions program, while 
concededly validly under the Fourteenth Amendment's equal pro­
tection clause, see Regents of the University o f California

21/ The avoidance of an affirmative action plan which 
unnecessarily trammels upon the interests of whites is 
one of the requirements for validity suggested in United 
Steelworkers of America v. Weber, 443 U.S. 1 93, 20"8 (1 979) .

26



v. Bakke, 438 U.S. 265 (1978), was invalid under the State Con 
stitution's equal protection provision. This assumption, 
however, was in direct contradiction with this Court's asser­
tion in Price, supra, that there is

... no authority which suggests that the 
California equal protection clause should 
be interpreted to place greater restric­
tions on bona fide affirmative action 
programs than are imposed by the Four­
teenth Amendment. To the contrary, our 
past decisions construing Article I, sec­
tion 7, subdivision (a) reflect this Court's 
recognition of the importance of interpret­
ing the provision in light of the realities 
of the continuing problems faced by 
minorities today.

Price v. Civil Service Commission of Sacramento County, 
supra, 604 p.2d 1382. Consequently, there was no basis for 
the court of appeal to conclude that proof of prior discrimi­
nation by the agency erecting the affirmative action program 
was an indispensable requirement under state law for the 
validity of the program.

While the State's equal protection clause must generally
be construed to protect the same basic rights and privileges
as those protected by the Fourteenth Amendment, it must,
nevertheless, be conceded, as this Court has recognized, that
there are times when

... the state equal protection guarantee 
embodied in Article I, section 7, subdivi­
sion -*(a) of the California Constitution 
does provide safeguards separate and dis-

27



tinct from those afforded by the Four­
teenth Amendment, ..." 22/

Price, supra, 604 P.2d at 1382.
Although initially this, might appear to be inconsistent 

with this Court's aforementioned statement in Price, supra, 
as well as inconsistent with this Court's earlier declaration 
that "We have construed these provisions as 'substantially 
and equivalent' of the equal protection clause of the Four­
teenth Amendment to the federal Constitution", Serrano v. 
Priest, 5 Cal.3d 584, 96 Cal. Rptr. 601, 487 P.2d 1241, n.11 
(1971), the conflict is apparent only. With respect to the 
allowable scope of governmental programs providing for 
remedial use of race conscious criteria, the conflict may be 
resolved by recognizing that California's enforcement of its 
equal protection guarantee will diverge from the requirements 
of the federal equal protection clause only when conditions 
and circumstances relevant to both differ substantially in 
the State of California from those which exist nationally. 
Compare, for example, Serrano v. Priest, supra, with San 
Antonio Ind. School District v. Rodriquez, 411 U.S. 1 (1973). 
Also see Price, supra, 604 P.2d at 1376.

22/ See, e.g. , Gay Law Students Assn, v. Pacific Tele­
phone & Teleqraph_Co., 24 Cal.3d 458, 469, 1?6 Cal. Rptr.
14, 595 P.’fd (1*979). Compare Serrano v. Priest, 5 Cal.3d 
584, 96 Cal. Rptr. 601 , 487 P. 2d 1241 (1971*)* with San Antonio 
Ind. School District v. Rodriquez, 411 U.S. 1 (1973).

28



This Court applied the essence of this principle in 
Price, supra. The plaintiff there argued that the Commis­
sion's affirmative action provisions violated both Title VII 
of the Civil Rights Act and local laws prohibiting dis­
crimination. After rejecting the plaintiff's argument that 
the defendant's actions contravened Title VII of the Civil 
Rights Act, the Court in Price similarly rejected the plain­
tiff's assertion that the affirmative action program violated 
local antidiscrimination laws. In explaining its actions the 
Court stated that:

Although the United States Supreme 
Court's interpretation of the antidis­
crimination provisions of Title VII does 
not, of course, necessarily determine the 
appropriate interpretation of the anti- 
discrimination provisions of the Sacramento 
County Charter or the FEPA, we believe tht 
those provisions should similarly not be 
interpreted to bar all such race-conscious 
affirmatie action plans. First, the 
relevant provisions of both the country 
charter and the FRPA arose out of the same 
historical context as the federal Civil 
Rights Act and were intended to achieve 
the same general objectives as the anti- 
discrimination prohibitions contained 
in the federal law.

Price, supra, 604 P.2d at 1376.
The same analysis is, of course, applicable to alleged 

differences in treatment of affirmative action programs by 
the State and federal constitutional provisions for equal 
protection. Both equal protection clauses arose out of the 
same historical context and both, in dealing with discrimina­
tion against blacks, are concerned with the same historical

29



problems. Moreover, both must confront the same obstacles 
existing today in society to creating equal opportunity for 
minorities.

The court below found that the Law School's race conscious
affirmative action program did not violate criteria set forth
in Regents of the University of California v. Bakke, supra.
The Law School's program does not employ either quotas or
goals. Race is treated as only one of a series of competing
factors bearing upon eligibility for admission. Obviously
therefore, the program is in strict compliance with Justice

23/
Powell' opinion in Bakke.

Justice Powell upheld in Bakke, supra, affirmative 
action programs which met the criteria stated in his opinion, 
because they enabled a university to select "students who 
will contribute the most to the 'robust exchange of ideas.'"
438 U.S. at 313. This purpose was important, he held, 
because it "invoke(d) a countervailing constitutional interest, 
that of the First Amendment." Id_. at 313. Ultimately, 
therefore he upheld the power of universities to apply race 
conscious criteria for the purpose of diversifying its 
student body because a university's diversification of 
its student population "is of paramount importance in the 
fulfillment of its mission." Id.

23/ See Justice Powell's opinion in Bakke at 438 U.S. 
311-319.

30



California's interest in promoting diversity of its 
student body is, under the State Constitution, equally 
compelling. It seeks also to further First Amendment 
goals in the education of its young. This interest is under 
state law no less important than the interest recognized 
in Justice Powell's opinion in Bakke under the Fourteenth 
Amendment. In view of the identity of interests, this 
Court's decision in Price, supra, requires lower courts to 
permit public bodies of California, such as the Law School, 
to employ, under State law, race conscious admissions criteria 
to the same extent as permitted under federal law.

Also in Bakke, the joint opinion by Justices Brennan,
White, Marshall, and Blackmun, held that a public university 
can adopt a race conscious admissions program whenever "there 
is a sound basis for concluding that minority underrepresenta­
tion is substantial and chronic, and that the handicap of 
past discrimination is impeding access of minorities to ... 
(s)chool." Bakke, 438 U.S. 363. Under this standard, race 
conscious remedies may be utilized by a State irrespective of 
whether the need for the program is generated by discrimina­
tion committed by the State or by society at large. _Id. at 
369.

Justices Brennan, White, Marshall, and Blackmun recognized, 
under the Fourteenth Amendment, a federally protected interest 
in curing chronic minority underrepresentation caused by 
societal discrimination. Their protection of this interest

31



was based upon an assessment of the national experience 
with respect to racial discrimination. There is no reason why 
California, given its similar experience, should afford less 
recognition and protection to this interest than the federal 
government. California's undisputed interest in ameliorating 
chronic underrepresentation of minorities, at least in the

• field of higher education, is demonstrated by its enactment
*

of Assembly Concurrent Resolution 151, supra. Thus, there is 
no basis in fact or law for concluding that California's 
interest under its State Constitution in allowing the use of 
race conscious programs to cure chronic underrepresentation 
of minorities, is less than that under the federal Constitu­
tion. See Price, supra, 604 P.2d at 1382, 1383.

In conclusion, it is submutted that the allowable scope 
of race conscious programs under the California State Con­
stitution is at least co-extensive with that permitted under 
the Fourteenth Amendment. This Court should therefore 
hold that the Law School's admissions program is valid and 
that it constitutes a reasonable means for implementating the

< California Legislature's policy, based on its finding that
minorities "are underrepresented in institutions of public 
higher education", to increase the number of minority students 
in higher education. Assembly Legislature, Assembly Permanent 
Subcom. on Postsecondary Education, supra.

To uphold, under these circumstances, the validity of 
a university's admissions program which merely vindicates

32



official State policy would only confirm the correctness of 
this Court's previous assertion that "affirmative steps 
are at times necessary to overcome the legacy of the past 
degradation of minorities and to bring minorities into full 
membership in American society." Price, supra, 604 P.2d 
1 365.

CONCLUSION

For the reasons indicated herein the judgment of the 
Court of Appeal should be vacated and the action dismissed.

Respectfully submitted,

JACK GREENbY rG 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR.

10 Columbus Circle 
Suite 2030New York, New York 10019 
Telephone: (212) 586-9397

JOHN H. ERICKSON 
ALICE M. BEASLEY 
HENRY S. HEWITT 
ERICKSON, BEASLEY & HEWITT 

12 Geary Street 
San Francisco, CA. 94108 
Telephone: (415) 781-3040

Attorneys for Amicus Curiae

33



A

I