Bakke v. Regents Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    JAMES M. NA8RJT, III
Ksocimcoum

I n The

dmtrt at tlrr Intted §tat?B
October Term, 1976

No. 76-811

The Regents of the University of California,
Petitioner, v. ’

Allan Bakke

On Writ of Certiorari to the 
Supreme Court of California

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

Albert E. J enner , J r. 
Stephen  J . P ollak 

Co-Chairmen
Burke Marshall 
N orman Redlich 
Owen M. F iss 

Trustees
Robert A. Murphy 
Susan P erry 
W illiam E. Caldwell 

Staff Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 - 15th St., N.W.
Suite 520
Washington, D.C. 20005

Attorneys for Amicus Curiae

W i l s o n  -  Ef e s  p r i n t i n g  C o . .  In c . - r e  7 - 6 0 0 2  - W a s h i n g t o n , d . c . 2 0 0 0 1



I N D E X
Page

Interest of Amicus Curiae ---------------- --- --------------
Introduction and Summary of Argument----------------

Argument ------ --- -..... -................... -..... — --- -----------
I. Special Admissions Policies, Such As That of

Davis, That Are Designed to Increase Minority 
Matriculation Into Professional Schools Serve 
Sound Educational Needs and Basic State and 
National Interests................ ....... .... --- ----------
A. The State’s Decision to Increase Minority

Matriculation in Its Medical School Is Con­
stitutionally Permissible------------------------

B. The Means Used Are Also Permissible - .....
II. The Equal Protection Clause Does Not Require

This Court To Forbid the Implementation of 
Such Policies by State Institutions --------------
A. The Purpose of the Special Admissions Pro­

gram Is Permissible Under the Fourteenth 
Amendment Because It Does Not Stigmatize 
Any Person or Class of Persons Because of 
Race ________________________ _______

B. The Class to Which Plaintiff Belongs Is Not
Entitled to the Extraordinary Judicial Pro­
tection Afforded “Discrete and Insular” 
Minority Groups --------------------------- ------

C. The Use of Racial Criteria by the State in
Allocating Scarce Resources Is Constitution­
ally Permissible Where Its Purpose and 
Effect Is to Overcome the Effects of Societal 
Discrimination ------------------------------------

D. The Fact That the Special Admissions Pro­
gram May Impose Some Disadvantage on 
Individual Members of Groups Not Directly 
Benefitted by the Program Is Not Sufficient 
to Make the Program Invalid ......................

1
4
6

6

7
9

13

15

16

18

20



II

INDEX—Continued
Page

III. The Details of the Specific Special Admissions 
Program Adopted by Davis Do Not Make It 
Constitutionally Objectionable ---------    22
A. The Existence of a Separate Admissions

Track Does Not Invalidate the Program ..... 22
B. The Use of Numerical Goals for Minority

Admissions Does Not Invalidate the Pro­
gram ......... .................................... ------ -------- 24

Conclusion -------------------------------   26



Ill

TABLE OF CITATIONS
CASES: Page

Arnold v. Ballard, C.A. No. C-73-478 (N.D. Ohio,
Sept. 20, 1976) _______ .......... - ..... -.............. -  3

Associated General Contractors of Mass., Inc. V. 
Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, de­
nied, 416 U.S. 957 (1974) .... .......................... -  20n

Brown V. Board of Education, 347 U.S. 483
(1954)    ........................ ............................... 11

Califano V. Goldfarb, -----  U.S. ----- , 97 S. Ct.
1021 (1977) - - - ..........- .........................  - 19

Califano V. Webster, -----  U.S. ----- , 97 S. Ct.
1192 (1977) - ...... - ..............................................-  19

Castaneda V. Partida, -----  U.S. ----- , 97 S. Ct.
1272 (1977) .... - ..... .......... -.................................15,16n

Connecticut General Life Ins. Co. V. Johnson, 303
U.S. 77 (1938) ___________ __ - .... ...............  2n

Contractors Ass’n of Eastern Pa. V. Secretary of 
Labor, 442 F.2d 159 (3d Cir.), cert, denied, 404
U.S. 854 (1971) .... ...... ......... -......................... -  20n

Craig V. Boren, -----  U.S. ----- , 97 S. Ct. 451
(1976) ........ ........................................................... 17

DeFunis V. Odegaard, 416 U.S. 312 (1974) --------  3,10
Epperson V. Arkansas, 393 U.S. 97 (1968) .........— 22
Franks V. Bowman Transportation Co., 424 U.S.

747 (1976) ___ ___________ - ---------- 5, 12,13,18, 21
Graham V. Richardson, 403 U.S. 365 (1971) ------ 17
Grayson V. Harris, 267 U.S. 352 (1925) ...... ..........  6n
Hernandez V. United States, 347 U.S. 475 (1954).. 17
Kahn v. Shevin, 416 U.S. 351 (1974) -------------- 19, 22
Keyes V. School Dist. No. 1, 413 U.S. 189 (1973).. 15
Lau V. Nichols, 414 U.S. 563 (1974).......................  19
Lemony. Kurtzman, 411 U.S. 192 (1973) ........... . 21
Massachusetts Board of Retirement V. Murgia, 427

U.S. 307 (1976) - .................................................. 17
Morrow V. Crisler, 491 F.2d 1053 (5th Cir.) (en

banc), cert, denied, 419 U.S. 895 (1974)--------  3
Morton V. Mancari, 417 U.S. 535 (1974) ...... ........  19
North Carolina State Board of Education V.

Swann, 402, U.S. 43 (1971) ................................  22



IV

TABLE OF CITATIONS—Continued
Page

Nyquist V. Lee, 402 U.S. 395 (1971), aff’g 318 F.
Supp. 710 (W.D. N.Y. 1970) „----------------- --- - 19

Palmer V. Thompson, 403 U.S. 217 (1971) --------- 18
Paschall V. Christie-Stewart, Inc., 414 U.S. 100

(1973) ........................-................. - ..... -------------- 6n
Porcelli V. Titus, 431 F.2d 1254 (3d Cir. 1970) ...... 20n
San Antonio Independent School District V. Rod­

riguez, 411 U.S. 1 (1973) __________ ______  17
South Carolina V. Katzenbach, 383 U.S. 301

(1966) ...... .......... .......... .. ......... --------------------  18
Southern Illinois Contractors Ass’n V. Ogilvie,

471 F.2d 680 (7th Cir. 1972) _______________  20n
Swann V. Charlotte-Mecklenberg Board of Educa­

tion, 402 U.S. 1 (1971) _____ __- ......... -5,18-19, 24
Teamsters V. United States, 45 U.S.L.W. 4506

(May 31, 1977) ______ ____________________  21
United Jewish Organizations of Williamsburgh,

Inc. V. Carey, -----  U.S. ----- , 97 S. Ct. 996
(1977) ...... .............. .... .....................-__ ____ _passim

United States V. Carotene Products Co., 304 U.S.
144 (1938)   ................................................. 17

United States V. Louisiana, 380 U.S. 145 (1965)- 19
United States V. Montgomery Board of Education,

395 U.S. 225 (1969) ______________________  24
United States V. Price, 383 U.S. 787 (1966)-------  2n
Village of Arlington Heights V. Metropolitan

Housing Development Corp.,----- U .S .------ , 97
S. Ct. 555 (1977) _______________ ___ _____  15

Washington V. Davis, 426 U.S. 229 (1976) --------  15, 18
Wheeling Steel Corp. V. Glander, 337 U.S. 562

(1949) __________ ______ _______________  2n

STATUTES; EXECUTIVE ORDERS AND LEGIS­
LATIVE MATERIALS

Civil Rights Act of 1964, tit. VI, VII, 42 U.S.C.
§ 2000a, 2000e et seq. ___________ ________ 6n, 12



V

TABLE OF CITATIONS—Continued
Page

24 C.F.It. §200.600 (1976) .... ............... ......... ....  19
Executive Order 11246, pt. II, 3 C.F.R., 1964-1965 

Comp. 339, as amended by Executive Order
11375, 3 C.F.R., 1966-1970 Comp. 684 ........... . 19

H. Rep. No. 92-238, 92d Cong., 1st Sess. 8 (1972).. 18

MISCELLANEOUS:
Bator, P., P. Mish k in , D. Shapiro & H. Wechs- 

ler, Hart & Wechsler’s T he F ederal Courts
& The Federal System (2d ed. 1973) ______  6n

Educational Testing Service, Applications and Ad­
missions to ABA Accredited Law Schools
(Princeton, N.J., May 1977) .................... ..........  9

Edwards & Zaretsky, Preferential Remedies for 
Employment Discrimination, 74 Mich. L. Rev. 1
(1975) ____ ____________ ___________ ____  24

Ely, The Constitutionality of Reverse Racial Dis­
crimination, 41 U. Chi. L. Rev. 724 (1974) ---- 12

Fiss, Groups and the Equal Protection Clause, 5
Phil. & Pub. Aff. 107 (1976) ____ ___________ 17

Graham, The “Conspiracy Theory” of The Four­
teenth Amendment, 47 Yale L. J. 371 (1937).... 2n 

Kartz & Horowitz, Affirmative Action and Equal
Protection, 60 Va. L. Rev. 955 (1974)________ 25

O’Neil, Preferential Admissions: Equalizing the 
Access of Minority Groups to Higher Educa­
tion, 80 Yale L. J. 699 (1971)______________  23

Sandalow, Racial Preferences in Higher Educa­
tion: Political Responsibility and the Judicial
Role, 42 U. Chi. L. Rev. 653 (1975)...................  10

Note, Reading the Mind of the School Board: Seg­
regative Intent and the De Facto/De Jure Dis­
tinction, 87 Yale L. J. 317 (1976)___________  15



In  The

ji>itprotu> (Emtrt uf %
October Term, 1976

No. 76-811

The Regents of the University of California,
Petitioner,

v.

Allan Bakke

On Writ of Certiorari to the 
Supreme Court of California

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE *

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys through­
out the country in the national effort to assure civil 
rights to all Americans. The Committee’s membership 
today includes two former Attorneys General, nine past 
Presidents of the American Bar Association, two former

* The parties’ letters of consent to the filing of this brief have 
been filed with the Clerk pursuant to Rule 42(2).



2

Solicitors General, a number of law school deans and 
professors, and many of the nation’s leading lawyers. 
Through its national office in Washington, D.C. and its 
offices in Jackson, Mississippi and eight other cities, 
including two in California, the Lawyers’ Committee 
over the past fourteen years has enlisted the services 
of over a thousand members of the private bar in ad­
dressing the legal problems of minorities and the poor 
in voting, education, employment, housing, municipal 
services, the administration of justice, and law enforce­
ment.

The Lawyers’ Committee has a number of vital inter­
ests at stake in this case, the correct interpretation and 
application of the Fourteenth Amendment being foremost 
among them. The Fourteenth Amendment’s promises of 
racial equality have received meaningful attention for 
only a small part of the Amendment’s 110-year history, 
and those promises are far from being fulfilled. During 
the past two decades the law has developed its apologia 
for the fact that “for many years after Reconstruction, 
the Fourteenth Amendment was almost a dead letter as 
far as the civil rights of Negroes were concerned. Its 
sole office was to impede state regulation of railroads or 
other corporations.” 1 In the case at bar, the California 
Supreme Court, in holding that the Fourteenth Amend­
ment prohibits a state medical school’s affirmative ad­
missions program designed to bring racial equality into 
the medical profession, has again diverted the Amend­
ment from its intended course. The Amendment cannot

1 United States v. Price, 383 U.S. 787, 801 n.9 (1966). See gen­
erally Wheeling Steel Cory. v. Glander, 337 U.S. 562, 576-81 (1949) 
(Douglas, J., dissenting); Connecticut General Life Ins. Co. v. 
Johnson, 303 U.S. 77, 85-90 (1938) (Black, J., dissenting) ; Graham, 
The “Conspiracy Theory” of the Fourteenth Amendment, 47 Yale 
L. J. 371 (1937).



3

and should not sustain another major diversion, such as 
that portended by the judgment below.

The Lawyers’ Committee has litigated a number of 
Fourteenth Amendment cases resulting in remedial or­
ders directing state and local governments to utilize 
race-conscious means to eradicate the persisting mani­
festations of long-standing official racism, see, e.g., Mor­
row v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), 
cert, denied, 419 U.S. 895 (1974), and we have negoti­
ated a number of consent decrees providing for similar 
relief. See, e.g., Arnold v. Ballard, C.A. No. C-73-478 
(N.D. Ohio, consent decree entered Sept. 20, 1976). 
While the California Supreme Court’s decision in the 
instant case does not directly affect the validity of such 
remedial orders (see Pet. App. pp. 29a-32a), the ra­
tionale of that decision, if affirmed by this Court, would 
present serious practical obstacles to our efforts to secure 
such relief through the courts and, especially, through 
the negotiation process.

Finally, the detrimental impact of the decision below 
on the accessibility of graduate and professional school 
education, and ultimately the professions themselves, to 
members of minority groups is of vital concern to us— 
particularly as that impact affects the racial composition 
of the legal profession, a concern which we expressed 
in our amicus brief in DeFunis v. Odegaard, 416 U.S. 
312 (1974). Since 1970 we have operated through our 
Mississippi office a Minority Lawyer Leadership, Train­
ing and Development Program, the purpose of which is 
to help develop an economically viable private black bar 
able and willing to respond to the special and general 
needs of Mississippi’s black residents. Under this con­
tinuing program at least nine young black attorneys 
have successfully established private practices in Mis­
sissippi towns which previously had few or no black 
lawyers. The continued success of this program obviously



4

depends on the availability of black law-school graduates, 
which in turn heavily depends on the continuation of 
special admissions programs such as the one invalidated 
by the court below. Affirmance of the decision below 
would impede our Mississippi program, and it would 
negate the small steps that have been taken throughout 
the nation to diversify the bench and bar by opening the 
profession to minorities.

Accordingly, the Lawyers’ Committee files this brief 
as friend of the Court urging reversal.

INTRODUCTION AND SUMMARY OF ARGUMENT

What is involved in this case is a special admissions 
program adopted by the faculty of a state medical school 
to bring racial diversity to a student body and to a pro­
fession that would otherwise continue virtually all-white 
for an indefinite period.

The goal of such a program is fully consistent with 
the history and aims of the Equal Protection Clause. 
It reflects a great national purpose, exhibited in federal 
and state appointment policies, a wide range of legisla­
tion, and innumerable job programs, as well as similar 
admissions policies of countless educational institutions, 
to bring racial diversity to all segments and all levels 
of American life. The program also serves sound educa­
tional policies reflecting the considered professional judg­
ment of the distinguished institution that adopted it, 
and the needs of the profession that institution represents 
and serves.

The developed constitutional doctrine of the Equal Pro­
tection Clause is not so rigid as to prohibit the states 
from adopting such programs. It is plain from such cases



5

as United Jewish Organizations of Williamsburgh, Inc. 
v. Carey, 97 S. Ct. 996 (1977), and Swann v. Charlotte- 
Mecklenberg Board of Education, 402 U.S. 1 (1971), 
that the states are not barred per se from taking race 
into account in devising and implementing state policies 
in which factors of race are inextricably implicated. 
Where scarce and valuable state resources (such as jobs, 
or places in professional schools) are at issue, such poli­
cies may inescapably, and at random, damage the eco­
nomic interests of individual members of nonminority 
groups. That is a transitional inequity that is the cost 
of permitting such programs, but it should not alone in­
validate them, compare Franks v. Bowman Transporta­
tion Co., 424 U.S. 747 (1976), absent any element of 
racial oppression, of perpetuation or protection of pre­
ferred positions, or of invidious discrimination against 
any group. None of these factors is present here, and 
the state’s program should accordingly stand.



6

ARGUMENT

I. Special Admissions Policies, Such As That of Davis, 
That Are Designed to Increase Minority Matriculation 
Into Professional Schools Serve Sound Educational 
Needs and Basic State and National Interests.

What the Supreme Court of California has done here 
is to interpret the Fourteenth Amendment2 to forbid 
a state university from implementing student admissions 
policies that are designed essentially to bring racial di­
versity to the virtually all-white populations that might 
otherwise exist in professional schools, and in the pro­
fessions for which they train their students. That is 
the fundamental, dominant purpose of the Davis special 
admissions program for “disadvantaged” applicants. If 
the Amendment truly requires this result, it must be 
because the process of constitutional litigation has frozen

2 The trial court held that the Davis special admissions program 
also violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000d, and the Privileges and Immunities Clause of the California 
Constitution, Art. 1, § 21. (Pet. App. p. 117a). That court’s holding 
as to the California Constitution accordingly constitutes an inde­
pendent and sufficient non-federal ground for its injunction. The 
Supreme Court of California, however, did not address itself either 
to the statutory or the state constitutional issue, and neither 
party here has raised a question as to this Court’s jurisdiction. It 
is, of course, true in general that the existence of a potential non- 
federal ground for the decision of the highest court of a state does 
not defeat jurisdiction here where the state court does not con­
sider the potential state ground. See, e.g., Grayson v. Harris, 267 
U.S. 352, 358 (1925). Since the judgment of the trial court would 
be left standing in this case whatever the disposition of the federal 
ground, however, the procedure followed in Paschall v. Christie- 
Stewart, Inc., 414 U.S. 100 (1973), seems possibly applicable. We 
do not urge the Court to follow that route because we believe, first, 
that the petitioner is entitled to a reversal of the court below 
on the federal constitutional ground on which its decision rests, 
with the state constitutional issue then left to the California courts 
for disposition, see P. Bator, P. Mish k in , D. Shapiro & H. Wechs- 
ler, Hart & Wechsler’s The F ederal Courts & The  F ederal 
System , 478, 458 (2d ed. 1973) ; and, second, that the federal con­
stitutional issue presented needs to be finally decided by this Court.



7

construction of the Amendment into a rigid pattern of 
doctrine that outlaws state action designed to achieve 
racial equality and justice, the Amendment’s most basic 
purpose.

Section II of our argument demonstrates that the 
Court’s decisions do not establish any such pattern. This 
section is intended simply to show that the kind of ad­
missions program used by Davis is a reasonable and 
rational way, well within the area of discretion that it 
should be allowed, for an educational institution to deal 
with the danger of perpetuation of a professional caste 
system.

A. The State’s Decision to Increase Minority Matricu­
lation in Its Medical School Is Constitutionally 
Permissible.

In the first place, it is reasonable for a professional 
school to decide that it wants, for its own purposes and 
own educational needs, to have significant racial diversity 
in its student body and its faculty. The damage done 
by racial segregation in educational institutions is at 
least not necessarily limited to that inflicted on the ex­
cluded minority group. White students need the diversity 
of experience and professional interests that may come 
only from sharing the educational process with blacks 
and other minorities. This could reasonably be supposed 
by educators to contribute to innovation in the develop­
ment of research priorities, curriculum, and other aca­
demic insights. The law schools are responsive to educa­
tional needs that they did not perceive before the in­
stitution by many of them of special admissions pro­
grams similar to that adopted by Davis for medical stu­
dents, and it is certainly at least plausible, and not un­
reasonable, for those responsible for the educational pro­
grams at those schools to believe that the two facts, of 
diversity and innovation, are not unrelated. In like vein,



8

it is surely not arbitrary for medical schools to conclude 
that their educational program will be enriched by the 
presence of racial diversity in their student bodies.

Second, it is also reasonable for a professional school, 
especially a state institution supported by public moneys, 
to decide that it has an educational responsibility to 
prepare a racially diverse group for the profession. Race 
is, in fact, an important factor for the doctor or lawyer 
in choosing what kind of practice to pursue, in what 
location, and for the custom of what kinds of clients. 
Further, doctors perform important functions in deter­
mining priorities and modes for the delivery of health 
services, as lawyers and judges do for legal services. 
In all the varieties of judgments that need to be made 
in such matters, it is certainly not irrational to believe 
that racial diversity is desirable, indeed essential. Nor 
is it inconsistent with known facts to think that clients 
to be served by the professions, particularly the poor, the 
under-represented, and the disadvantaged, deserve the 
choice of the opportunity of consulting with racially 
identifiable doctors or lawyers they believe will best 
understand and sympathize with their problems; it is 
certain that race has, in fact, played an enormously im­
portant role in their own lives.

Third, it would be reasonable for educators to con­
clude that a special admissions program was essential to 
achieving these ends, at least for a transitional period 
of uncertain duration. The only evidence in the record 
on the point is to that effect: “In the judgment of the 
faculty of the Davis Medical School, the special admis­
sions program is the only method whereby the school 
can produce a diverse student body which will include 
qualified students from disadvantaged backgrounds.” 
(Testimony of admissions committee chairman; Pet. App. 
p. 75a). As the amici briefs filed in this case demon­
strate, a large number of other private and state pro-



9
fessional schools have reached similar judgments. As 
to law schools, these judgments are reinforced, although 
not necessarily proved correct, by a May 1977 study of 
applications and admissions to ABA accredited law 
schools.3

B. The Means Used Are Also Permissible.
To be sure, a state institution cannot accomplish even 

these appropriate ends through unconstitutional means. 
The majority of the Supreme Court of California ap­
parently concluded that that was what Davis had done 
here. Yet, as we show in section II, there are no suffi­
cient countervailing considerations of constitutional di­
mensions created by the type of special admissions pro­
gram adopted by Davis to place it outside the parameters 
of permissible state action. We show in section III that 
neither do such obstacles arise from the details of the 
specific plan they have chosen to adopt. Here we simply 
point out that the means used are entirely reasonable.

First, there is no merit to the assumption of the court 
below that special admissions programs designed to in­
crease minority matriculation in professional schools are

3 Educational Testing Service, Applications and Admissions to 
to ABA Accredited Law Schools, (May, 1977, copyright by Law 
School Admission Council; mimeographed; Educational Testing 
Service, Princeton, N.J. 08540). The fact is that not enough is 
known about why minority applicants statistically make lower 
scores on such intended objective tests, as the MCAT (for medicine) 
and the LSAT (for law). In summary, however, the Educational 
Testing Service analysis referred to does show that admissions 
policies based solely or predominantly on the predictors measured 
by the LSAT and related quantifiers would operate severely to limit 
access to legal education and the profession by blacks, Chicanos, 
and possibly members of other minority groups. Id. at pp. xiii, xvi- 
xviii. One statistic cited by the analysis is that of 1539 black Ameri­
cans admitted to 129 ABA approved law schools in 1976, only 285 
would have been admitted if their ethnic identity had been unknown, 
according to the judgment of the law schools admitting them. Id. 
at 64, Table 26. It goes without saying that the effects would be 
greatest in the best and most prestigious professional schools, such 
as the University of California Medical School at Davis.



10

valid only if color-blind and implemented without express 
or implicit consideration of race.

By such a program, a university aims to integrate its 
student body and the profession generally, and to al­
leviate the medical problems of the minority community. 
It is hard to see how the state’s concededly racial goals 
can be achieved equally well if the state ignores race. 
To insist that it do so is to condemn it to bad faith, 
or to the adoption of a grossly ineffectual means to its 
end.

The alternatives to explicit racial classification most 
frequently urged are programs that focus on disadvan­
taged persons generally. Such programs, it is argued, 
permit a university to achieve racial goals indirectly, 
since some or many of the disadvantaged admittees will 
be minorities. The first vice of these programs is that 
they are ineffectual. They would force universities to 
admit large numbers of disadvantaged students in order 
to obtain the number of minority students they regard 
as optimal. One commentator has estimated in connec­
tion with DeFunis v. Odegaard, 416 U.S. 312 (1974), 
that, in order to achieve in a racially neutral way the 
state’s goal of approximately 15% minority representa­
tion in the student body, the University of Washington 
Law School would have had to use special admissions 
criteria for 40-50 % of its class. Sandalow, Racial Pref­
erences in Higher Education: Political Responsibility 
and the Judicial Role, 42 U.Chi.L.Rev. 653, 690 n. 113 
(1975).

A second vice of this alternative is its disingenousness. 
The University’s goal is integration. To select a racially 
“neutral” criterion for the purposes of promoting in­
tegration cannot honestly be described as a “nonracial” 
decision. To suggest that the University may accomplish 
sub rosa what it is constitutionally prohibited from ac-



11

complishing de jure is to invite, not without irony, the 
very evasiveness that has hindered the implementation of 
Brown v. Board of Education, 347 U.S. 483 (1954).

The court below also suggested that “the University 
might increase minority enrollment by instituting aggres­
sive programs to identify, recruit, and provide remedial 
schooling for disadvantaged students.” 553 P.2d at 1166 
(Pet. App. p. 26a). Yet this suggestion is afflicted with 
the same vices as its predecessor. If recruiting and reme­
dial programs focus on disadvantaged students generally, 
they are an ineffectual and disingenuous means to a 
racial and ethnic end. If such programs focus on minority 
students in particular, they simply move the racial pref­
erence one step away. Exceptional measures taken to pre­
pare minorities for a competitive admissions process pre­
fer them as surely as does a preference in the admissions 
process itself.

Second, it is also not true, as the court below seems 
to believe, that special admissions programs abandon the 
principles of merit and achievement for a nakedly racial 
goal. They do not involve racial quotas in the sense that 
race is substituted as a sole standard for some percentage 
of the students to be admitted. No doubt one reason for 
the need for special admissions programs is the absence of 
sufficiently sophisticated admissions standards that can 
accurately identify the members of a student body that 
will adequately reflect the diverse and various needs of 
the educational institution and the profession for which it 
trains. Probably no such standards can be created to 
choose from among 1000 to 1500 applicants, all of whom 
appear to be qualified for the academic demands they 
will face. Yet it is clear that the MCAT (for medicine) 
and LSAT (for law) scores, and college grades that go 
with them, do not purport to measure probable merit or 
achievement in a profession, but only serve as statistical­
ly accurate predictors of good grades in the first two or



12

three semesters in. a school. It is not at the sacrifice of 
the goal of turning out good lawyers and doctors, but 
only at the potential sacrifice of more predictable early 
academic performance, that special admissions programs 
are put in effect.

Third, it is perfectly apparent that there is no smell 
of oppression present in such programs. Their guiding 
principle is inclusion, not exclusion. Whether wise or not, 
the programs are reasonable responses to educational, 
professional, and societal needs for full minority partici­
pation in the learned professions. They contain no hint 
of a majority, or a politically dominant group, attempt­
ing to protect itself or its own prior positions or per­
quisites from inroads by insurgent minorities. Compare 
Ely, The Constitutionality of Reverse Racial Discrimina­
tion, 41 U.Chi.L.Rev. 724 (1974). They are instead transi­
tional steps, pending the achievement of a more complete 
racial equality in the professions, which the political proc­
ess can be counted on to abolish when the felt need for 
them no longer exists.

The fact that a scarce resource—admission to a limited 
student body, membership in which is valuable-—is in­
volved does not by itself invalidate the program, even 
though that fact necessarily means transitional inequities 
will occur to the disadvantage of some individuals such 
as respondent, who are not members of the groups that 
are the targets of special admissions programs. In 
Franks V. Bowman Transportation Co., 424 U.S. 747 
(1976), this Court ordered the granting of seniority re­
lief to members of a class (black nonemployee applicants) 
who were denied jobs by reason of discriminatory hiring 
practices taking place after the effective date of Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq. It did so despite explicit claims that the district 
court had denied such relief, in the exercise of its equita­
ble discretion, because it believed the award of such re-



13

lief would conflict with the economic interests of white 
employees. 424 U.S. at 773-779. No constitutional claim 
was raised, but it would make no constitutional sense to 
say that a federal statute could permissibly require that 
result, while the Fourteenth Amendment forbade a state 
from doing the same thing voluntarily.

This Court’s decisions afford no basis for concluding 
that it makes a constitutional difference whether a special 
admissions program such as that used by Davis serves 
a specific remedial purpose, parallel to that in Franks v. 
Bowman Transportation Co., supra, or other legitimate 
state needs. See discussion, pages 19-20 infra. It is suf­
ficient to emphasize at this point that the specific educa­
tional and professional purposes identified above are re­
inforced constitutionally because they also serve plain con­
cepts of compensatory and corrective justice that are 
recognized to lie at the core of the Fourteenth Amend­
ment. They are efforts, probably the most significant ef­
forts institutions of higher education could make, towards 
a solution of the nation’s most intractable problem, which 
is its heritage from years of institutionalized, legally en­
forced, socially accepted, and invidiously pervasive racial 
oppression, with its enduring debris.

II. The Equal Protection Clause Does Not Require This 
Court to Forbid the Implementation of Such Policies 
by State Institutions.

The appropriate state institution-—the medical school 
with the function of producing doctors—has made its 
judgment here as to the standards by which it should 
choose its student body from among a large pool of quali­
fied applicants most of whom must be rejected. These 
standards include considerations of race. As we have 
shown, the reasons that justify the university’s decision 
to do so are founded on sound principles of higher edu­
cation, the requirements of the medical profession, and 
state and national traditions of justice.



14

It is, of course, recognized that the Court will not in­
validate the state’s judgment on these matters because 
the Court would not necessarily make the same judgment 
itself. The question is whether the state’s judgment is 
permissible under the Equal Protection Clause. In sum­
mary, we believe that it is evident that the state’s judg­
ment may not be invalidated, under the decisions of this 
Court, merely because race was taken into consideration. 
The use of racial criteria by the state for any purpose 
should indeed be given close scrutiny, but such use is es­
sential for some purposes, including the desegregation of 
school systems. It is permissible here because it does not 
cast a stigma on anyone, because the affected class is 
not entitled to extraordinary judicial protection, and be­
cause there is a showing of sufficient need for the use of 
the racial criteria. We recognize that the effect is to 
impose costs on some individuals who do not meet the 
racial criteria used. That is why the case is here; it is 
the inescapable consequence of any system of allocating- 
scarce resources that includes the use of racial criteria. 
We do not believe that the existence of such costs is suf­
ficient to make the use of such criteria impermissible.

Plaintiff does not contend that he was denied admission 
to the medical school because of the University’s discrimi­
nation against him as a white, or against whites gener­
ally. Nor can he accurately claim that he was denied 
admission to the special admissions program because of 
his race. Rather, and the distinction is a crucial one, his 
complaint runs against the University’s decision to fill 
a number of places in its entering class with minority 
applicants through the special admissions program, thus 
making fewer places available through the regular admis­
sions process. His case, in other words, depends not on 
a showing of discrimination against him, which could not 
be made, but on claimed incidental damages to him from



15

benefits, or preferences, given a minority group. Unless 
the state is forbidden all programs conferring any such 
preferences, therefore, the claim fails.

A. The Purpose of the Special Admissions Program Is 
Permissible Under the Fourteenth Amendment 
Because It Does Not Stigmatize any Person or 
Class of Persons Because of Race.

The parties and some of the amici may join issue on 
whether the discrimination allegedly inherent in the spec­
ial admissions program is purposeful or intentional with­
in the contemplation of this Court’s decisions in such 
cases as Washington v. Davis, 426 U.S. 229 (1976). See, 
e.g., Castaneda v. Partida, 97 S. Ct. 1272 (1977) ; Village 
of Arlington Heights v. Metropolitan Housing Develop­
ment Corp., 97 S. Ct. 555 (1977); Keyes V. School Dist. 
No. 1, 413 U.S. 189 (1973). To the extent that the “pur­
pose or intent” standard is in need of further refinement, 
cf. Washington v. Davis, 426 U.S. 229, 253-54 (Stevens, 
J., concurring) ; United Jewish Organizations of Williams- 
burgh, Inc. v. Carey, 97 S. Ct. 996, 1017 (1977) (Stewart, 
J., joined by Powell, J., concurring) ; Note, Reading the 
Mind of the School Board: Segregative Intent and the De 
Facto/De Jure Distinction, 87 Yale L.J. 317 (1976), the 
need is not presented by this case. The precise question 
here, rather, is whether the explicit racial purpose of the 
special admissions program is an impermissible one. We 
show that it is not.

As the Court has recently held, the “deliberate” use of 
race “in a purposeful manner” as one criterion of choice 
is not constitutionally invalid where such use represents 
“no racial slur or stigma with respect to whites or any 
other race.” United Jewish Organizations of Williams- 
burgh, Inc. v. Carey, supra, 97 S. Ct. at 1009 (plurality 
opinion). The remedial nature of the special admissions 
program, designed to integrate rather than to segregate,



16

and its enactment by a majority-race decision-maker “belie 
the possibility that the decision-maker intended a racial 
insult or injury to those [members of the majority] who 
are adversely affected by [its] operation. . . Id. at 1016 
(Brennan, J., concurring in part).4 The court below spe­
cifically held that whites “are not . . . invidiously dis­
criminated against in the sense that a stigma is cast 
upon them because of their race.” 553 P.2d at 1163 
(Pet. App. p. 19a). Moreover, there is no claim that the 
special admissions program causes, or is the result of, any 
animus against a discrete group within the majority. 
Cf. United Jewish Organizations, supra, 97 S. Ct. at 
1014, 1016 n. 7 (Brennan, J., concurring in part).

The purpose of the special admissions program, there­
fore, is not impermissible under the Equal Protection 
Clause. This conclusion is bolstered by the fact that the 
class against which the program allegedly discriminates 
is not a class entitled to extraordinary judicial protection 
under the Fourteenth Amendment, our next point.

B. The Class to Which Plaintiff Belongs Is Not En­
titled to the Extraordinary Judicial Protection 
Afforded “Discrete and Insular” Minority Groups.

The notion that racial classifications in certain contexts 
are presumptively unconstitutional derives from a special 
judicial solicitude for the fate of historically disadvan­
taged minority groups. Strict scrutiny of state actions 
which affect “suspect classes” is a deviation from tradi­
tional judicial deference to the judgments of other gov-

4 In Castaneda V. Partida, 97 S. Ct. 1272, 1282 (1977), the Court, 
considering the question of discrimination from an evidentiary 
perspective, deemed it “unwise to presume as a matter of law that 
human beings of one definable group will not discriminate against 
other members of that group.” Here, by contrast, the question is 
not one of proof but of justification. The Court acknowledged that 
distinction in Castaneda by its reference to “a case where a ma­
jority is practicing benevolent discrimination in favor of a tradi­
tionally disadvantaged minority.” Id. at 1282 n. 20.



17
ernmental agencies which occurs when history has proven 
the futility of reliance upon such agencies to secure equal 
treatment for a “discrete and insular” minority group. 
United States v. Carotene Products Co., 304 U.S. 144, 
152-53 n. 4 (1938). See also Hernandez v. United States, 
347 U.S. 475 (1954), and Graham V. Richardson, 403 
U.S. 365 (1971). The nonminority applicants who would 
have been admitted to the medical school at the Univer­
sity in the absence of the special admissions program 
hardly qualify for this extraordinary judicial aid. The 
majority below acknowledged that “the white majority is 
pluralistic, containing within itself a multitude of re­
ligious and ethnic minorities.” 553 P.2d at 1163 (Pet. 
App. p. 19a). There has not been-—nor could there likely 
be—any demonstration that this class has been “saddled 
with such disabilities, or subjected to such a history of 
purposeful unequal treatment, or relegated to such a posi­
tion of political powerlessness as to command extraordi­
nary protection from the majoritarian political process.” 
San Antonio Independent School District v. Rodriguez, 
411 U.S. 1, 28 (1973). See also Massachusetts Board of 
Retirement v. Murgia, 427 U.S. 307, 313 (1976) ; Craig 
v. Boren, 97 S. Ct. 451, 464, n. 1 (1976) (Stevens, J., 
concurring). Rather, this class represents the same kind 
of “large, diverse and amorphous” group which this Court 
found not entitled to extraordinary judicial protection in 
the Rodriguez case, supra. See also Fiss, Groups and the 
Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976).

It has been suggested that one of the particular dang­
ers in the use of race as a factor in the allocation of 
scarce resources is that “discrete and insular” subgroups 
among the majority will be called upon to bear a dispro­
portionate part of the “immediate direct costs of benign 
discrimination.” United Jewish Organizations, supra, 
97 S. Ct. at 1014 (Brennan, J., concurring in part). The 
dissenting justice below noted this concern, and pointed 
out that “there is . . . absolutely no indication in the in-



18

slant record that the special admission program at Davis 
was instituted to discriminate against a particular sub­
class of non-minorities, nor is there any claim that the 
program had in fact such a differential impact.” 553 
P.2d at 1183 n.10 (Pet. App. p. 61a n.10).

C. The Use of Racial Criteria by the State in Allo­
cating Scarce Resources Is Constitutionally Per­
missible Where Its Purpose and Effect Is to Over­
come the Effects of Societal Discrimination.

Despite the fact that the Fourteenth Amendment itself 
originated as a measure to promote integration and elimi­
nate racial inequalities, Palmer V. Thompson, 403 U.S. 
217, 220 (1971) ; id. at 240 (White, J., dissenting), the 
majority below drew from the Equal Protection Clause a 
rule which, as a practical matter, virtually forbids recog­
nition of the special situation of minority applicants. As 
the dissenting justice pointed out, the logic of the ma­
jority’s position would preclude the medical school even 
taking affirmative steps to recruit minority applicants, 
553 P.2d at 1177-78 (Pet. App. p. 26a), a practice which 
this Court approved in Washington v. Davis, supra, 426 
U.S. at 246.

This result cannot be the command of the Fourteenth 
Amendment. The pervasive effects of this nation’s sad 
history of racial discrimination have received the wide­
spread attention of courts and legislatures. In many con­
texts drastic measures have proven necessary to eliminate 
lingering discriminatory “systems and effects.” H. Rep. 
No. 92-238, 92d Cong., 1st Sess. 8 (1972) (employment 
discrimination). See also South Carolina v. Katzenbach, 
383 U.S. 301, 327 (1966) (voting rights). And this Court 
has authorized and even required race-conscious remedies 
in a variety of corrective settings. See, e.g., United Jewish 
Organizations of Williamsburgh, Inc. v. Carey, 97 S. Ct. 
996 (1977) ; Franks v. Bowman Transportation Co., 424 
U.S. 747 (1976) ; Swann v. Charlotte-Mecklenberg Board



19
of Education, 402 U.S, 1 (1971) ; United States V. Louisi­
ana, 380 U.S. 145 (1965). Preferential treatment of 
minority groups is recognized in many situations to be 
the only effective means of overcoming persistent disad­
vantages. E.g., Kahn v. Shevin, 416 U.S. 351 (1974) 
(widows benefits) ; Lau v. Nichols, 414 U.S. 563 (1974) 
(remedial education) ; 24 C.F.R. § 200.600 (housing) ; 
E. O. 11246, pt. II, 3 C.F.R., 1964-1965 Comp. 339, as 
amended by E. O. 11375, 3 C.F.R., 1966-1970 Comp. 684 
(employment of minorities by federal contractors). See 
also Morton v. Mancari, 417 U.S. 535 (1974) (employ­
ment of reservation Indians in the Bureau of Indian 
Affairs).

There is no reason, constitutional or otherwise, that 
the University should first have to be adjudged guilty of 
discrimination before being permitted voluntarily to take 
steps toward overcoming the lingering effects of societal 
discrimination: “the permissible use of racial criteria is 
not confined to eliminating the effects of past discrimina­
tory districting or apportionment.” United Jewish Or­
ganizations v. Carey, 97 S. Ct. at 1007. This Court has 
approved voluntary efforts to remedy segregation in 
schools, in cases where such efforts could not be judicially 
compelled. See, e.g., Swann V. Charlotte-Mecklenberg 
Board of Education, 402 U.S. 1, 16 (1971); Nyquist V. 
Lee, 402 U.S. 935 (1971), a fg  318 F. Supp. 710 
(W.D.N.Y. 1970).

In other cases this Court has recognized the con­
stitutional propriety of preferential treatment for groups 
which have been the subject of general societal discrimin­
ation, most recently in Califano v. Goldfarb, 97 S. Ct. 
1021, 1028 n.8 (1977), and Califano v. Webster, 97 S. Ct. 
1192 (1977) (per curiam). And there is no suggestion 
in any of these cases that an adjudication of fault must 
accompany every contribution to overcoming entrenched 
patterns of discrimination and segregation. While the 
culpability of an employer or school admissions committee



20

may well affect the equity of judicial imposition of pref­
erential relief, there can be no constitutional or indeed 
rational basis for distinguishing between culpable and 
nonculpable defendants when the issue is the permissi­
bility of their voluntary remedial acts.5

D. The Fact That the Special Admissions Program 
May Impose Some Disadvantage on Individual 
Members of Groups Not Directly Benefitted by 
the Program Is Not Sufficient to Make the Pro­
gram Invalid.

The majority below distinguished those cases in which 
this Court has upheld the preferential use of racial 
criteria on the grounds that such preferences had not 
deprived nonminorities of “benefits which they would 
otherwise have enjoyed.” 553 P.2d at 1160 (Pet.App. 
p. 13a). While stating that school desegregation decisions 
may “discommode” nonminorities “by requiring some to 
attend schools in neighborhoods other than their own,” the 
court found it constitutionally significant that the ra­
cial classifications in those cases did not “totally deprive” 
any child of an education and subjected members of all 
races to essentially equivalent treatment. Id.

It is clear that the effect of the special admissions pro­
gram is to impose costs on some individuals who do not

5 Various lower courts have upheld employment quotas pursuant 
to federal contracting requirements without any demonstration 
that the affected employer had previously engaged in discrimina­
tory practices. E.g., Associated General Contractors of Mass., Inc. 
V. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert, denied, 416 U.S. 957 
(1974); Southern Illinois Builders Ass’n V. Ogilvie, 471 F.2d 680 
(7th Cir. 1972); Contractors Ass’n of Eastern Pa. v. Secretary of 
Labor, 442 F.2d 159 (3d Cir.), cert, denied, 404 U.S. 854 (1971). 
Similarly, voluntary adoption of preferential programs was sanc­
tioned in Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970).



21

meet the racial criteria used. It is less clear why those 
costs appeared to the court below to overstep a constitu­
tional line. This Court recently held that detrimental ef­
fects upon the expectations of nonminority employees did 
not render invalid an order for remedial assignment of 
seniority benefits to minority employees. Franks v. Bow­
man Transportation Co., 424 U.S. 747, 775-77 (1976).

It is in the very nature of the problem of allocating 
scarce public resources that all will not be fully served and 
some will be denied access entirely. If the use of racial 
criteria is not per se unconstitutional, the determination 
of the University as to the criteria for allocating places 
in its medical school must be given considerable deference. 
In designing and implementing its remedial program, the 
University was aware of the need to balance its strong 
interests in increasing minority enrollment against pos­
sible intrusion on the expectations of others. In so doing, 
it was entitled to “ ‘look to the practical realities and 
necessities inescapably involved in reconciling competing 
interests,’ in order to determine the ‘special blend of what 
is necessary, what is fair, and what is workable.’ ” Team­
sters v. United States, 45 U.S.L.W. 4506, 4519 (May 31, 
1977), quoting from Lemon v. Kurtzman, 411 U.S. 192, 
201, 200 (opinion of Burger, C. J.). And it is important 
to point out that while the court below characterized the 
cost to the plaintiff as an “absolute denial,” 553 P.2d at 
1161 (Pet. App. p. 14a), he was in fact, like all other ap­
plicants, fairly considered for admission to medical school 
by the school’s own standards. As we have argued, that 
those standards include consideration of an applicant’s 
race is, under these circumstances, permissible; the fact 
that this results in fewer places being available for the 
nonpreferred majority does not work an injury of consti­
tutional dimension to the aspirations of that class, or of 
any member of it.



22

III. The Details of the Specific Special Admissions Program 
Adopted by Davis Do Not Make I t Constitutionally 
Objectionable.

We have demonstrated that the type of special ad­
missions program adopted by Davis is necessary to ac­
complish important state and national objectives and is 
constitutionally valid. Nor is there anything about the 
details of the specific program that should change this 
result. As this Court has repeatedly recognized, public 
school authorities must be afforded wide discretion in 
determining and enforcing the standards governing the 
academic processes. See, e.g., Epperson v. Arkansas, 393 
U.S. 97, 104 (1968). The importance of the interests 
served by such programs as that challenged in this case 
requires that they not be made subject to the constant 
threat of federal litigation. Otherwise, it is predictable 
that they will not be adopted at all, in any form, by most 
professional schools, and the result will be further frus­
tration and delay in realizing “the promise of Brown.” 
See North Carolina State Board of Education v. Swann, 
402 U.S. 43, 46 (1971).

A. The Existence of a Separate Admissions Track 
Does Not Invalidate the Program.

The existence of a separate admissions committee to 
screen and evaluate candidates for special admission 
serves valid administrative purposes and does not reflect 
adversely on the overall validity of the special admis­
sions program. The program is designed to benefit mi­
norities who have suffered most, both economically and 
educationally, from past discrimination, and is narrowly 
drawn to assist that class alone. Cf. Kahn v. Shevin, 416 
U.S. 351, 360 (1974) (Brennan, J., dissenting). Indeed, 
minority applicants with no history of disadvantage are 
referred to the regular admissions program. R. 65-66,



23

170.° In any event, final selection of special admissions 
applicants, like applicants in the regular admissions pro­
cess, is made by the full admissions committee. R. 166. 
The only difference in the procedure employed by the two 
committees is that, in selecting candidates to be inter­
viewed, the special admissions committee does not employ 
an arbitrary grade point average cut-off figure. R. 175. 
The court below conceded that

“we are aware of no rule of law which requires the 
University to afford determinative weight in admis­
sions to these quantitative factors. In practice, col­
leges and universities generally consider matters 
other than strict numerical ranking in admission de­
cisions. (O’Neil, Preferential Admissions (1971) 80 
Yale L.J. 699, 701-705). The University is entitled 
to consider, as it does with respect to applicants in 
the special program, that low grades and test scores 
may not accurately reflect the abilities of some dis­
advantaged students; and it may reasonably conclude 
that although their academic scores are lower, their 
potential for success in the school and the profession 
is equal to or greater than that of an applicant with 
higher grades who has not been similarly handi­
capped.” 553 P.2d at 1166 (Pet. App. p. 24a).

These are, in fact, precisely the considerations which 
informed the judgment of the University and its officials 
in establishing and administering the special admissions 
program in this case. To hold that the University is 
constitutionally disabled from applying a different meas­
ure of qualification to individuals whose backgrounds 
suggest a less dependable applicability of the usual stand­
ards, is effectively to constitutionalize the notion of merit 
embodied in standardized tests like the MCAT.

6 “R.” references are to the pages of the clerk’s transcript of the 
record filed in the court below.



24

B. The Use of Numerical Goals for Minority Admis­
sions Does Not Invalidate the Program.

The decisions of this Court and of the lower federal 
courts leave little doubt that numerical goals of them­
selves are not constitutionally infirm. In Title VII cases, 
the circuit courts have been virtually unanimous in “re­
quirting] employers to hire according to ratios of mi­
nority to white employees” in order to redress the effects 
of past discrimination. See Edwards & Zaretsky, Prefer­
ential Remedies for Employment Discrimination, 74 
Mich. L. Rev. 1, 9 and nn. 41-44 (1975) (citing cases). 
In the school desegregation cases, this Court similarly 
has sanctioned the use of “ ‘fixed mathematical’ ratios.” 
United States v. Montgomery Board of Education, 395 
U.S. 225, 234, 235-36 (1969). It has sanctioned their 
use, moreover, not only in remedial judicial orders, but 
in voluntary administrative programs. In Swann v. Char- 
lotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 
this Court acknowledged the validity of a discretionary 
judgment by school authorities that “in order to prepare 
students to live in a pluralistic society each school should 
have a prescribed ratio of Negro to white students re­
flecting the proportion for the district as a whole.” Id. 
at 16. And in United Jewish Organizations of Williams- 
burgh, Inc. v. Carey, 97 S. Ct. 996 (1977), this Court re­
cently upheld the use of “specific numerical quotas” to 
establish a fixed number of black majority voting dis­
tricts. Id. at 1008.

The use of numerical guidelines, secondly, is peculiarly 
innocuous in the case at bar. The University’s targeted 
percentages are flexible: they have varied between 
8%, 12%, and 16% in the six years the program has 
operated. There is no suggestion that the University’s 
goals set a ceiling on minority enrollment. Indeed, the 
16% goal applies only to disadvantaged minority ap­
plicants: the court below noted that six Mexican Ameri-



25

cans, one black and 41 Asians were admitted between 
1971 and 1974 through the regular admissions program. 
553 P.2d at 1165 n.21. Nor does the 16% goal represent 
a mandatory requirement which must be filled regardless 
of qualifications. In at least one of the years under con­
sideration, only 15 minorities were admitted under the 
special admissions program. R. 216-18.

Perhaps more fundamentally, numerical goals are nec­
essarily implicated in any racially preferential program. 
See United Jewish Organizations of Williamsburgh, Inc. 
v. Carey, 97 S. Ct. 996, 1008 (1977). Once it is decided 
that minorities should be preferred, the magnitude of that 
preference must be gauged. Once it is decided that minor­
ities are underrepresented, the size of that underrepre­
sentation must be assessed. Once it is decided that minor­
ities’ test scores should be discounted, the magnitude of 
that discount must be determined. “In deciding how many 
bonus points to give,” in short, “there is no escape from 
setting some goal for the number of minority students in 
the entering class.” Karst & Horowitz, Affirmative Action 
and Equal Protection, 60 Va. L. Rev. 955, 971 (1974). To 
permit racially preferential admissions programs, and to 
acknowledge that officials administering them inevitably 
must entertain notions as to their proper goals, but 
to forbid those officials, on constitutional grounds, to make 
these goals plain for all to see, is to encourage nothing 
healthy in the law. Here, as before, the question re­
duces to one of disingenuousness. Here, as elsewhere, 
disingenousness is to be avoided.



26

CONCLUSION

Wherefore we respectfully submit that the decision and 
judgment of the Supreme Court of California should 
be reversed.

Respectfully submitted,

Albert E. J enner , J r. 
Stephen  J. P ollak 

Co-Chairmen
Burke Marshall 
N orman Redlich 
Owen M. F iss 

Trustees
Robert A. Murphy 
Susan P erry 
W illiam E. Caldwell 

Staff Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 - 15th St., N.W.
Suite 520
Washington, D.C. 20005

Attorneys for Amicus Curiae*

* Amicus Curiae expresses its appreciation to Margaret Colgate 
Love, a recent graduate of Yale Law School and current associate 
with Shea & Gardner, Washington, D.C., for her valuable contri­
butions to this brief.