Regents of the University of California v. Bakke Brief Amicus Curiae

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October 4, 1976
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Brief Collection, LDF Court Filings. Regents of the University of California v. Bakke Brief Amicus Curiae, 1976. 8713efe8-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/bf2369b0-838d-4ace-a332-38983f696a59/regents-of-the-university-of-california-v-bakke-brief-amicus-curiae. Accessed May 13, 2025.

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§ > u p n m tT  (U n u rt o t  t i p  l& n iteb  B t n U s

October Term, 1976 
No. 76-811

T he  R egents of the U niversity of California,

Petitioner,
—v-

A xiLan B akke .

ON WRIT OF CERTIORARI. TO THE SUPREME COURT OF CALIFORNIA

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Jack Greenberg 
James M . N abrit, EH 
Charles S. R alston 
E ric Schnapper 
D avid E . K endall 
B ill Lann  Lee 
B eth  J. L ief 
K ellis Parker

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Amicus Curiae



!

I

I N D E X

PAGE

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

Summary of Argument.....................................................  2

Argument ............................................................................  2 i
I. Introduction ............      2

II. Legislative History of the Fourteenth Amend
ment ............................................................................  10

A. Race-Conscious Legislation of the Recon
struction Era ..................................................... 13

(1) The 1864 Freedmen’s Bureau B il l ...........  13

(2) The 1865 Freedmen’s Bureau Act ...........  17

(3) The 1866 Freedmen’s Bureau Act ...........  18
(4) Freedmen’s Bureau Legislation, 1868-1870 40

(5) 1867 Relief Legislation ..............................  43

(6) The Colored Servicemen’s Claims Act .... 45

B. The Adoption of the Fourteenth Amendment 48

C. Discrimination in Medical Education During
the Last Century ...............................................  54

III. Be Jure Segregation in California Public Educa
tion ............................................................................  57

IV. Minority Health Problems and Petitioner’s Spe
cial Admissions Program .............   59

Conclusion ....................................................       67

i



11

'  A ppendix A —  PAGE

Discrimination in Medical Education 1870-1977 .... la 

A ppendix B—

De Jure Segregation in California Public Educa
tion .............................................................................  12a

1. Elementary and Secondary School Segregation 12a

2. California’s Postsecondary Effort to Overcome
the Effects of Racial Segregation at Lower 
Levels of Public Education ................................ 21a

A ppendix C—

Morbidity and Mortality Statistics of the Black 
Population ..................................................................  31a

T able of A uthorities

Cases:

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 
1973) ........................................................................13a, 20a

Addison v. High Point Memorial Hospital, No. C-96-
C-G4 (M.D. N.C. Aug. 28, 1964) .............................. 9a

Anderson v. Matthews, 174 Ca. 537, 163 P. 902 (1917) 17a

Bakke v. Regents of University of California, ------
Cal. 3d ------ , 132 Cal. Rptr. 680, 553 P. 2d 1152
(1976) ......................................................................3,5,6,57

Batts v. Duplin General Hospital, No. 1110 (E.D.
N.C. Dec. 23, 1965), 11 Race Rel. L. Rep. 1427 
(1965) .............................................................................

Bell v. Pulton DeKalb Hospital Authority, No. 7966 
(N.D. Ga. Feb. 23, 1965) 9a

PAQE

Bell v. Georgia Dental Association, 231 F. Supp. 299
(N.D. Ga. 1964) .................................................... lOa-lla

Bell v. Maryland, 378 U.S. 226 (1964) .......................... 6
Bolling v. Sharpe, 347 U.S. 497 (1954) ......................  5,9
Brice v. Landis, 314 F. Supp. 94 (N.D. Cal. 1969) ....... 13a
Brown v. Board of Education, 345 U.S. 972 (1953) .... 6
Brown v. Board of Education, 347 U.S. 483 (1954) ...1,4,7,

15a,18a
Brown v. Weinberger, 417 F. Supp. 1215 (D.D.C.

1976) ................................................................................ 13a
Buefort v. Elias, No. P-242 (Pa. Human Rel. Commis

sioner Jan. 26, 1965), 11 Race Rel. L. Rep. 2186 .... 65
Burton v. Arkansas Tubercular Sanitorium, No. LR- 

60-C-51 (E.D. Ark., May 3, 1966), 11 Race Rel.
L. Rep. 1933 ..................................................................  9a

Carlin v. San Jose Unified School District, ------  Cal.
App. Supp. 3d ------ , ------  Cal. Rptr. ------  (Super.
Ct. County of San Diego, No. 303800, filed March 9,
1977) ................................................................................ 14a

Clayton v. Person County Hospital, No. C-137-D 64
(M.D. N.C. Oct. 28, 1964) .............................................. 9a

Crawford v. Board of Education, 17 Cal. 3d 280, 130
Cal. Rptr. 724, 551 P. 2d 28 (1976) ..........................  14a

Cypress v. Newport News General and Nonsecretarian 
Hospital, 375 F.2d 648 (4th Cir. 1967) ......................  9a

Diana v. State Board of Education, N.D. Cal. Civ. Act.
No. C-70-37, R ep., stipulation dated June 18, 1973 .... 14a

Eaton v. Board of Managers, 261 F.2d 521 (4th Cir.
1958), cert. den. 359 U.S. 984 ........................................ 9a

Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ........... 9a

Ferguson v. Skrupa, 372 U.S. 726 (1963) ..................  10



IV

Flagler Hospital, Inc. v. Hayling, 344 F.2d 950 (5th 
Cir. 1965) ...................................................................... 9a

Gaston County v. United States, 395 U.S. 285 (1969) .. 20a
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ..............  5
Guey Heung Lee v. Johnson, 404 U.S. 1215 (1971) ..13a, 15a,

16a, 18a, 19a

Hall v. Roanoke-Clio wan Hospital, No. 522 (E D N C 
Sept. 7, 1965) ......................................................' ' ' 9fl

Hawkins v. North Carolina Dental Society, 355 F 2d
718 (4th Cir. 1966) .................................................l 0a, 11a

Hernandez v.' Texas, 347 U.S. 475 (1954) ..................  9

Jackson v. Pasadena City School District, 59 Cal. 2d 
876, 31 Cal. Rptr. 606, 382 P. 2d 878 (1963) (en
b“ c> ...............................................................................  14a

Johnson v. Crawfis, 128 F. Supp. 230 (E.D. Ark. 1955) 9a
Johnson v. San Francisco Unified School District, 339 

F. Supp. 1315 (N.D. Cal. 1971), app. for stay denied,
Guey Heung Lee v. Johnson, 404 U.S. 1215 (1917) 
vacated and remanded, 500 F.2d 349 (9th Cir. 1974) 13a

Katzenbach v. Morgan, 384 U.S. 641 (1966) 8
Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1974) I3a 
Keyes v. School District No. 1, 413 U.S. 189 (1973) I7a
T_ 18a, 58
Korematsu v. United States, 323 U.S. 214 (1944) 9

Lau v. Nichols, 414 U.S. 563 (1974) ...............  13jl
Lcwtor v. Lee Memorial Hospital, No. 65-47-Ci (M D

Fla. Dec. 10, 1965) .......................................  ' 9a
Lochner v. New York, 198 U.S. 45 (1905) ” 10
Lopez v. Seccombe, 71 F. Supp. 769 (S.D. Cal. 1944) .. 19a

PAGE

v

McLaughlin v. Florida, 379 U.S. 184 (1964) ............... 9
Mangrum v. Iredell Hospital, No. 519 (W.D. N.C.

Nov. 9, 1965) ...............................................................  9a
Marable v. Alabama Mental Health Board, 297 F.

Supp. 291 (M.D. Ala. 1969) ........................................ 9a
Mendez v. Westminster School District, 64 F. Supp.

544 (C.D. Cal. 1946), affirmed, 161 F.2d 744 (9th
Cir. 1947) (en banc) .....................................................  18a

Morton v. Mancari, 417 U.S. 535 (1974) ......................  4,5

NAACP v. San Bernardino City Unified School Dis
trict, 17 Cal. 3d 311, 130 Cal. Rptr. 744, 551 P. 2d 
98 (1976) ......................................................................  14a

Oregon v. Mitchell, 400 U.S. 112 (1970) ..:...................  21a
Oyama v. California, 332 U.S. 633 (1948) ..................  19a

P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972), af
firmed, 502 F.2d 963 (9th Cir. 1974) ......................  13a

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976) ............................................................. 58

Pena v. Superior Court, 50 Cal. App. 3d 694, 123
Cal. Rptr. 500 (Ct. App. 1975) .................................. 14a

People 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) ......................13a, 14a

Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948) .... 19a 
Piper v. Big Pine School Dist., 193 Cal. 664, 226 P.

926 (1924) ......................................................................  17a
Plessy v. Ferguson, 163 U.S. 537 (1896) ......................  16a
Porter v. North Carolina Bd. of Control, No. C-123-

D-62 (M.D. N.C. Mar. 28, 1963) .............................. 9a
Pringle v. State Tuberculosis Bd., No. 1044 (N.D. Fla.

Jan. 26, 1966), 11 Race Rel. L. Rep. 1427

PAGE

9a



VI

Rackley v. Board of Trustees, 238 F. Supp. 512 (E D
S-C- 1965) ...................................................................... 9a

Rackley v. Board of Trustees, 310 F.2d 141 (4th Cir
1962) .....-............  ......................................................... ; 9a

Railway Mail Association v. Corsi, 326 U.S. 88 (1945) 10 
Rax v. State Department of Hospitals, C.A. No. 3265 

(E.D. La. Dec. 23, 1965), 11 Race Rel. L. Rep. 384 .... 9u
Reed v. Reed, 404 U.S. 71 (1971) .......................... 9
Reynolds v. Anniston Memorial Hospital No. 65-206

(N.D. Ala., June 21, 1965) .........................................  9a
Rogers v. Druid City Hospital, 10 Race Rel. L Rep 

1273 (1965) .................................................................. ' 9a
Romeo v. Weakley, 226 F.2d 399 (9th Cir. 1955) ....... 19a
Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) 9

San Francisco Unified School District v. Johnson,
3 Cal. 3d 937, 92 Cal. Rptr. 309, 479 P. 2d 669 (1971)
(en banc), cert, denied, 401 U.S. 1012 (1971) ........... I4a

Santa Barbara School District v. Superior Court, 13 
Cal. 3d 315, 118 Cal. Rptr. 637, 530 P. 2d 605 (1975)
(en banc) ........................................................................ 15a

Simkins v. Moses Cone Memorial Hospital, 323 F.2d 
959 (4th Cir. 1963), cert, denied 376 U.S. 938
(1964) ....................................................................^ 2( 7a  ̂9a

Sipuel v. Board of Regents, 332 U.S. 631 (1948) '2a
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) 4, 6,

7, 9
Smith v. Hampton Training School for Nurses 360 

F.2d 577 (4th Cir. 1966) ............................... ’ 9a
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) ................................  13a

Spangler v. Pasadena City Board of Education, 311 
F. Supp. 501 (C.D. Cal. 1970) ........................... ’ 13a 17a

PAGE
vn

Sparf v. United States, 156 U.S. 51 (1895)..................  6
Strauder v. West Virginia, 100 U.S. 303 (1880) ........... 4
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) ........................................................  58

Takahashi v. Fish and Game Commission, 334 U.S. 410
(1948) .............................................................................  19a

Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885) ..............  17a

United Jewish Organizations of Villiamsburgh, Inc. 
v. Carey,------U .S .------- , 51 L.Ed. 2d 229 (1977) .... 4

Ward v. Flood, 49 Cal. 36 (1874) ................... ..............  16a
Washington v. Blampin, 38 Cal. Rptr. 235 (Calif.

Dist. Ct. of Appeals 1964), 9 Race Rel. L. Rep.
899 ...................................................................................  65

Washington v. Davis, 426 U.S. 229 (1976) ..................  5
Weems v. United States, 217 U.S. 349 (1910) ..............  7
Wood v. Hogan, 214 F. Supp. 53 (W.D. Va. 1963) ....... 9a
Wysinger v. Crookshank, 82 Cal. 588, 23 P. 54 (1890) .. 16a

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................. 5,19a

Statutes:

State Statutes
Ala. Code tit. 45 §4; §248 tit. 46, §189 .........................  8a
Ark. Stats. Ann. §§7-401, 7-402, 7-404 ........................  8a
General School Law of California §1662 at 14 (1880) .. 16a
1860 Cal. Stats., c. 329, §8 .............................................  16a
1863 Cal. Slat., c. 159, §68.................................................  16a
1885 Cal. Stats., c. 117, §1662 .........................................  17a
1893 Cal. Stats., c. 193, §1662 .........................................  17a
1921 Cal. Stats., c. 685, §1 .................................................  I7a
1935 Cal. Stats., c. 488, §§1, 2 .........................................  18a

PAGE



vm

1947 Cal. Stats., c. 737, § 1 ..............................................  18a
1959 Cal. Stats., Res. c. 160................................ 21a
Assembly Concurrent Resolution Number 151, 1974

Cal. Stats., Res. c. 209 (1974) ........................ .’.8, 21a, 27a
Chicago Ordinance of March 14, 1956, 2 Race Rel L ’

R*P- 697 ................................................................... ■ ' 9a
Del. Code Ann. tit. 16 §155 (1953) .........................  8a
Ga. Code Ann. §35-225 (1935); §35-308 (1957 supp.)'.' 8u 
Ky. Rev. Stats. §215.078 and §205.180 (1953) (both re

pealed in 1954) ...........................  ga
La. Rev. Stats. Ann. §46.181 (1950); Acts. 1904 ........ 8a
Md. Code Ann. Art. 59, §§61-63; §§285-286 ..................  8a
Miss. Code Ann. §6883; §6927; §6973; §6974 ........ 8a
Mo. Rev. Stats. §9390 (1939) ...........................  ............ 8
N.C. Gen. Stats. §122-3 (1957 Supp.) ...........ZZZ......  8a
Okla. Stats. Ann. tit. 10, §§201-206.1 (1951) • tit 35

§§251-256 tit. 63 §§531, 532 ........................  ’ 8
S.C. Code 1942, §6223 ..................................................... ga
Tenn. Code Ann. §33-602 (1955) ........ ZZZZZZZ.........  8a
Tex. Civ. Stats. Ann. art. 324a (1952) ....................  8a
Tex. Civ. Stats. Ann. art. 324a (1952) ..................  8a
Va. Code §§37-5 to 37-6 (1950) .................  ............. 8a
W. Va. Code §2632 (1955); §2636 ......ZZZZZZZ ZZ 8a

U.S. Statutes
20 U.S.C. §1600 et seq. (19721 ,r,
42 U.S.C. §2000d (1964) ............. ZZZ. . . . . . . . . . . .
12 Stat., c. 33 at 650 (1863) ......................ZZZ*..........  12
12 Stat., c. 103 at 796 (1863) ...................  ..................  12
13 Stat., c. 90 at 507-08 (1865) ..........ZZZ."...................  12
13 Stat. c. 90 at 508 (1865) ................  " ....................  3?
13 Stat., c. 92 at 511 (1865) .................ZZZZ....... .....  12
14 Stat. c. 31 at 27 (1866) ...................... .......................19 u
14 Stat., c. 127 at 66, 67 (1866) .......ZZ...........■......... 13’ 35

PAGE

IX

14 Stat. c. 200 at 173-177 (1866) ................................. 19, 39
14 Stat., c. 200 at 174-176 (1866) .............. 11,12,35,36,37
14 Stat., c. 296 at 317 (1866) ........................................  12
14 Stat., Res. 86 at 368 (1866) ..................................... 45
15 Stat., Res. 3 at 20 (1867) .......................    12
15 Stat., Res. 4 at 20 (1867) ............................................. 43
15 Stat., Res. 25 at 26 (1867) ........................:................11, 48
15 Stat., Res. 28 at 28 (1867) ..................................... 28,44
16 Stat. c. 14 at 8 (1869) ................................................. 12
16 Stat., c. 114 at 506-07 (1871) .................................  12
17 Stat. 366, 528 (1872) ................................................. 12

Congressional Authorities:

Cong. Globe, 38th Cong., 1st Sess. (1864) .............. 13,14,15
Cong. Globe, 38th Cong., 1st Sess. App. (1864) .......14,15

PAGE

Cong. Globe App., 39th Cong. 1st Sess. 69-78 (1866) ..22, 24,
25, 28, 30

Cong. Globe, 39th Cong., 1st Sess. 251, 297 (1866) ....24,27 
Cong. Globe, 39th Cong., 1st Sess. 319-397 (1866) ....23,25,

26, 28, 30, 31, 38
Cong. Globe, 39th Cong., 1st Sess. 401-421 (1866) ....24,31 
Cong. Globe, 39th Cong., 1st Sess. 514-515, 544, 588-

590 (1866) .........................................................23,28,29,30
Cong. Globe, 39th Cong., 1st Sess. 603, 623-635, 688

(1866) ........................................... 4,22,24,25,27,29,31,52
Cong. Globe, 39th Cong., 1st Sess. 935-943 (1866) ....32,33 
Cong. Globe, 39th Cong., 1st Sess. 1034, 1088, 1092

(1866) ...................................................................... 49,50,51
Cong. Globe, 39th Cong., 1st Sess. 1117-1118, 1123-1125,

1160 (1866) ....................................................................  4
Cong. Globe, 39th Cong., 1st Sess. 2459, 2472 (1866) .... 52 
Cong. Globe, 39th Cong., 1st Sess. 2501, 2511-2512, 

2537-2538, 2545 (1866) ................................................. 51,52



X

Cong. Globe, 39th Cong., 1st Sess. 2743, 2772-2780
2799 (1866) .............................................. ’......34 3g ’7 3

Cong. Globe, 39th Cong., 1st Sess. 2807, 2869 ’ 51
Cong. Globe, 39th Cong., 1st Sess. 2941, 2977 (1866) ....51 52 
Cong. Globe, 39th Cong. 1st Sess. 3042, 3071 (1866) ..34' 51 
Cong. Globe, 39th Cong. 1st Sess. 3149 (1866) ' 51
Cong. Globe, 39th Cong. 1st Sess. 3413 (1866) 38 51
Cong. Globe, 39th Cong. 1st Sess. 3524, 3562 (1866) ....38 51 
Cong. Globe, 39tli Cong. 1st Sess. 3840-3842, 3850 ’

(1866) .............................................................................  c-i
Cong. Globe, 40th Cong., 1st Sess. (1867) ...........43 44’ 46
Cong. Globe, 40th Cong., 2d Sess. (1868) .............. ’ 40
Cong. Globe, 41st Cong., 1st Sess. (1870) 42 55
Hearing on 8. 3585, Health Manpower Act Before 'the ' 

Subcommittee on Health of the Senate Comm on 
Labour and Pxiblic Welfare, 93rd Cong., 2d Sess.

! ! '! ;  I;"""- N» - ! l ' 39il> < ^ 7 h 7 s i r ' ( i 8 6 6 ) ' '19 20
- A  No. 70, 39tl, Cong,, 1st Sess. J1865) 1  ’ 20

H.R. Rep. No. 2, 38th Cong., 1st Sess. (1864) ............. is
H.R. Rep. No. 121, 41st Cong., 2d Sess. (1870) .......... 55
S. Rep. No. 137, 38th Cong., 2d Sess. (1865) ..............  17

Other Authorities:

A mewcan P ublic H ealth A ssociation, M inority 
H ealth Chartbook (1974) ..........

A ssociation of A merican M edical Colleges 'T ask’ ' 
F orce to the I nter-A ssociation Committee of E x- 
pandl g E ducational Opportunities in M edicine

a n " AN° ° THEK Minority Students (1970) 57 la  
Atty Cen. Opinion, Michigan, July 17, 1957, 2 Race ’

Rel. L. Rep. 1203 ..........................

G nos°s\tIey’ A Hist° ry ° f lhe eedmen’s B uremi ^
( 55) ......................................... 12,16,18, 35, 41, 45, 48, 54

PAGE

X I

Bickel, The Original Understanding and the Segrega
tion Decision, 69 H arv. L. Rev. 1 (1955) ..................  4

Black, The Lawfulness of the Segregation Decisions,
69 Y ale L.J. 421 (1960) ................................................. 4

J. B lackwell, T he B lack Community (1975) .......56,1a
J. B laine, 2 T wenty Y ears in Congress (1886) ........... 12
B ureau of Refugees, F reedmen and A bandoned 

L ands, S ixth Semi-A nnual Report on Schools for

F reedmen (July 1, 1868) .............................................  54
B ureau of R efugees, F reedmen and A bandoned 

L ands, E ighth Semi-A nnual R eport on Schools

for F reedmen (July 1, 1869) .....................................  54
California Coordinating Council for H igher E duca

tion, H . K itano & D. M iller, A n A ssessment of 
E ducational Opportunity P rograms in California

H igher E ducation (1970) ...................... 24a, 28a, 29a, 30a
California Coordinating Council for H igher E duca

tion, K. M artyn, I ncreasing Opportunities in 
H igher E ducation for D isadvantaged Students

(1966) ........................................................................25a, 28a
22 California D epartment of Justice, Opinions of

the A ttorney General, Opinion 6735a (January 23,
1930) 931-932 (1930) ..................................................... 18a

California L egislature, A ssembly, A  M aster Plan 
for H igher E ducation in California, 1960-1975
(I960) .............................................................................  21a

California L egislature, A ssembly Permanent S ub-
COM. ON POSTSECONDAKY EDUCATION, UNEQUAL ACCESS
to College (1975) .................................................... 28a, 30a

California L egislature, J oint Com. on H igher E d
ucation, K. M artyn, I ncreasing Opportunities for 
D isadvantaged Students, Preliminary Outline

(1967) ....................................................................... 24a, 28a

PAGE



X U

California L egislature, Joint Com. on H igher E d
ucation, T he Challenge of A chievement; A  R e
port on P ublic and Private H igher E ducation in

California (1969) ......................................... 22a, 24a, 25a, 28a
California Legislature, J oint Com. on the M aster 

Plan for H igher E ducation, Nairobi R esearch 
I nst., B lacks and Public H igher E ducation in

California (1973) ........................................................... 29a
California L egislature, J oint Com. on the Master 

Plan for H igher E ducation, R. Lopez & D. E nos, 
Chicanos and P ublic H igher E ducation in Califor
nia (1972) .....................................................................................  29a

California L egislature Joint Com. on the M aster 
Plan for H igher E ducation, R. Y oskioka, A sian- 
A merioans and P ublic H igher E ducation in Cal
ifornia (1973) .................................................................  29a

California L egislature, J oint Com. on the M aster

Plan for H igher E ducation, R eport (1973) ........26a, 28a
California Postsecondary E ducation Commission,’ 

E qual E ducation Opportunity in California Post
secondary E ducation: Part 1 (1976) ......................28a, 30a

California Postsecondary E ducation Commission,’ 
Planning for P ostsecondary E ducation in Cal
ifornia: A  F ive Y ear Plan U pdate, 1977-1982

<1377> .................................................................................... .. 22a
California State D epartment of E ducation, R acial

and E thnic Survey of California P ublic Schools,
F all  19G6 (1967), F all 1968 (1969) and F all 1970 
(1971) .................................................................................... ..

H. Carter, T he A ngry Scar, 57 (1959) ......................  ’ 55
C enter for N ational P olicy R eview , J ustice D e

layed, HEW and N orthern S cnooL  D esegregation

<1974) ........................................................................................... 14a

PAGE

XIU

Center for National P olicy R eview, T rends in Black

School S egregation, 1970-1974, Vol. I (1977) ......... 12a
Center for National P olicy R eview, T rends in H is

panic S egregation, 1970-1974, Vol. II (1977) ........... 12a
Chassan, Race, Age and Sex in Discharge Probabilities 

of First Admissions to a Psychiatric Hospital, 26
P sychiatry 391 (1963) ................................................. 66

Ckerkasky, Medical Manpoiver Needs in Deprived
Areas, 44 J. M ed. E d. 126 (1969) ............................. 61, 65

Citizens Commission on Graduate Medical E ducation,
T he Graduate E ducation of P hysicians (1960) ....... 62

Coe & Wesson, Social Psychological Factors Influenc
ing the Use of Community Health Resources, 55
A m . J. P ub. H ealth 1024 (1965) .................................  66

Commissioner of the B ureau of R efugees, F reedmen

and A bandoned L ands, R eport, R eport (1866) ....... 54
Committee on E ducation for F amily P ractice, Meet

ing the Challenge of F amily P ractice (1966) ....... 62
Comely, Distribution of Negro Physicians in the

United States in 1942, 124 JAMA 826 (1944) ........... 63
Comely, The Economics of Medical Practice and the

Negro Physician, 43 JAMA 84 (1951) ......................  63
Crawford, Rollins & Sutherland, Variations between 

Negroes and Whites in Concepts of Mental Illness 
and its Treatment, 84 A n n . N.Y. A cad. Sci. 918
(1963) .............................................................................. 66

J. Curtis, B lacks, Medical Schools and Society

(1971) .......................................................... 56, 63, 65, la, 3a
Curtis, Minority Student Success and Failure with the 

National Intern and Resident Matching Program, 50
J. M ed. E d. 563 (1975) .................................................  65

Darity, Crucial Health and Social Problems in the 
Blade Community, J ournal of B lack H ealth P er
spectives 1 (June/July 1974) ..................................60,32a

PAGE



X IV

D avis A  Decade of Policy Developments in Providing 
Health Care for Loiv Income Families in  H aveman ,
R. E d. A  D ecade op F ederal A n ti-P overty P o licy :

w  r ™ NTS’ F ailures and Lessons (1976) ..........  34a
W . DuBois, B lack  R econstruction (1935) 54
Fein, An Economic and Social Profile of the Negro 

American, in K . Clark & T. P arsons, eds. T he 
JMegro A merican (1966)

R. F ein , T he D octor S hortage; A n E conomic D iag
nosis (1967) ............................

II. F lack , T h e  A doption op the F ourteenth  A mend- 62 
m en t  (1908)

W . F lem ing , 2 D ocumentary H istory of R econstruc
tion (1906) ..........................

G overnor’s Commission on the L os A ngeles R io t s 1’ 55 
V iolence in the  C ity  (1965) .........  ’

Haynes, Distribution of Blade Physiciamin the United 
States, 1967 210 JAMA 69 (1969) .......................... 63

I. H endrick, T he E ducation op N on-W hites in  Cal
ifornia, 1849-1970 (1977) ........  16a 17n 1Q

R- H enry. T he Story op Reconstructin ' (1938) 55
Hochheister, et al. Effect of the Neighborhood Health 

Center on the Use of the Pediatric Emergency De
partments m Rochester, N.Y., 285 New England 
Journal of Medicine (July,-1971) .. °  60

Hollingshead and Redlich, Social Stratification "and 
Psychiatric Disorder, 18 A mer. Soc. R ev. 163 (1953) 66

U. H oward, 2 A utobiography (1907) .....................  12 20 54
Iba, Niswander & Woodville, Relation of Prenatal Care ’ 

to Birth Weights, Major Malformations, and New
born Deaths of American Indians, 88 H ealth S er
vices R eports 697 (1973) .................................  rn

Jackson, The Effectiveness of a Special Program "fit 
Minority Group Students, 47 J. M ed. E d. 620 (1972) 62

I* AGE

x v

J ohnson, History of the Education o f Negro Physi
cians, 42 J. M ed. E duc. 439 (1967) .............. 56, 64, la, 10a

D. K essner et al., Contrasts in H ealth Status, V ol
ume 1 I nstant Death : A n A nalysis by Maternal 
R isk and H ealth Care (1973) ............................. 60,33a

R. L ogan, H oward U niversity: The F irst H undred 
Y ears, 1867-1967 (1969) ...............................................  54

E. M cP herson, T he P olitical H istory op the U nited

States op A merica D uring the P eriod op R econ
struction (1871) ............................................................  20

J. M cP herson, T he Struggle for Equality (1964) .... 33 
Maternal and Child H ealth Service, U.S. D epart

ment op H ealth, E ducation and W elfare, P romot
ing the H ealth op Mothers and Children, F iscal
Y ear 1972 ....................................................................60, 34a

Melton, Health Manpower and Negro Health: The 
Negro Physician, 43 J. M ed. E d. 798 (1968) ....61,65,10a 

Mcltsner, Equality and Health, 115 P a. L. R ev. 22
(I960) .............................................................................. 9a

8 Messages and P apers op the P residents (1914) ....31,32,
34, 38

Mills, Each One Teaches One, J. B lack H ealth P er
spectives (Aug.-Sept. 1974) ...................................... 32a

Montagu, P renatal I nfluences (1962) ......................  33a
Morais, T he H istory op the Negro in Medicine

(1967) .............................................................. 56, la, 7a, 10a
P. Murray, States’ L aws on R ace and Color (1951) ..2a, 8a 
National Center for H ealth Statistics, D epartment 

op H ealth, E ducation and W elfare, Monthly 
V ital Statistics R eport, Summary R eport F inal
Mortality Statistics (1973) ....................................59,32a

National Center for H ealth Statistics, D epartment 
of H ealth, E ducation and W elfare, V ital and 
H ealth Statistics, V olume of P hysician V isits,
U.S., July 1966-June 1967 (1968) .............................. 60

PAGE



X V I

National F oundation, A nnual R epobt (1974) ........... 33a
Ninth  Semi-A nnual B epoiit on Schools fob F iieed- 

men (Jan. 1, 1870) .................................................. 54
N.Y. Dept, of Welfare Policy, Dec. 12, 1956, 2 R ace 

R el. L. R ep. 511 ..........................  ga

C. Odegaabd, M inobities in Medicine (1977) .......56, 61, 62,
64, 4a, 5a, 6a

1 . 1 iebce, The F beedmen’s B ubeau (1904) ........ 18
B abkin & Steuening, E thnicity, Social Class and 

Mental I llness (1976) ................................ gg
Reissman, The Use of Health Services by the Poor, 

Social P olicy 41 (May/June 1974) ..........................60, 66
D. R eitzes, Negboes and Medicine (1958) ....63, 3a, 4a, 7a' 9a 
Reitzes & Elkhanialy, Black Physicians and Minority

Group Health Care—The Impact of NMF, 14 Med
ical Cabe 1052 (1976) .................................... ’  64

Report of the Commissioner of the Bureau of Ref
ugees, Freedmen and Abandoned Lands, II.R. E xec.
Doc. No. 11, 39th Cong. 1st Sess. (1865) ..................  12

R edout of the Commissioned of the B ubeau of R ef
ugees, F beedmen and A bandoned L ands (1867) 40

R epobt of the Cabnegie Council on P olicy Studies in 
IIigheb E ducation, P bogbess and P boblems in M ed
ical and D ental E ducation (1976) ...............  61

R epobt of the National A dvisoby Commission on 
Civil D isobdeiis (1968) ........................... g-.

Reports of Detroit Mayor’s Interracial Committee
(1956), 1 R ace R el. L. R ep. 1123...................  9a

Richard, The Negro Physician: A Study in Mobility 
and Status Inconsistency, 61 JNMA 278-279 fMav
1M »  .....................................................................  .....  62

PAGE

X V II

Robertson, et al., Toivard Changing the Medical Care 
System: Report of an Experiment in Haggabty,
T he B oundabies of H ealth Cabe, Reprinted from 

Alpha Omega Honor Society, P habos of A lpha

Omega A lpha, Vol. 35 ................................................... 34a
Rodgers, The Challenge of Primary Care, Daedalus 82

(Winter 1977) ............................................................ 62, 34a
Schaffer & Myers, Psychotherapy and Social Stratifi

cation, 17 Psyciiiatby 83 (1954)...................................  66
Schleifler, et ah, Clinical Change in Jail-Referred Men

tal Patients, 18 A bchives of Genebal P sychiatby 42
(1968)   66

Singer, Some Implications of Differential Psychiatric 
Treatment of Negro and White Patients, Social

Science and Medicine 1 (1967) ...................................  66
Strauss, Medical Ghettoes, in P atients, P hysicians

and Illness 381 (E.Jaco, ed. 1972) ..............................  66
tenBroek, E qual U ndeb L aw (rev. ed. 1965) .............. 4,49
Thompson, Curbing the Black Manpower Shortage, 49

J. M ed. E d. 944 (1974) .................................................64, 66
T. T hompson and S. B abbely, A Study of the D istbi-

BUTION AND CllAlUCTEBISTICS OF BLACK PHYSICIANS IN
the U nited States, 1972 (NMA Foundation 1973) .... 62 

B. T unley, T he A mebican H ealth S candal (1966) ..60, 32a

PAGE

U.S. B ubeau of the Census, Cubbent P opulation R e
douts, Series P-23, No. 46, The Social And Economic 
Status of the Black Population in the United States,
1972 (1973) .............................................................. .....  15a

U.S. B ubeau of the Census, IIistobical Statistics of 
thb U nited States, Colonial T imes to 1970, P abt I
(1976) ..................................................;..........................  15a

U.S. B ubeau of the Census, 1970, Census of P opula
tion, Series PC(2)-2A, State of Birth (1973) ........... 15a

U.S. Bubeau of the Census, Occupational C iiabacteb- 
istics, 1970 ......................................................................  4a



xvm

PAGE

U.S. B ureau of the Census, Statistical A bstract of 
the United States, 1976 (1976)....9, 50, 59, 64, 4a, 12a, 31a

U.S. Civil R ights Commission, M exican-A merican 
E ducation Study, Reports I -V I (1971-1974) 20a

1976 U.S. Code Cong. & A dmin. N ews 5390, 5392-5393 61 
U.S. Comm , on Civil R ights, F ulfilling the L etter 

and S pirit of the L aw (1 9 7 6 )...................................  14a
U.S. Comm , on Civil R ights, 3 T he F ederal Civil 

R ights E nforcement E ffort— 1974, To Ensure
Equal Educational Opportunity (1975) ............. 12a

U.S. D epartment of H ealth, E ducation and W elfare, 
Office for Civil R ights, D irectory of P ublic E le
mentary and Secondary Schools in Selected D is
tricts, E nrollment and Staff by R acial/ E thnio 
Groups, F all 1968 (1970), F all 1970 (1972) and
Fall 1972 (3974) ...................................................... 15a

U.S. P ublic H ealth S ervice, D ept, of H ealth, E duca-’ 
tion AND W elfare, M inority H ealth Chartbook 
(1974) .........................................................  4a

US. P ublic H ealth Service, U.S. D epartment of 
H ealth, E ducation and W elfare, S elected V ital 
and H ealth Statistics in P overty and Non-P overty 
A reas of 19 L arge Cities, United States, 1969-71..60, 33a 

U.S. P ublic H ealth S ervice, T he S upply of H ealth’ 
Manpower: 1970 P rofiles and P rojections to 1990
(197*) .....................................................................................  62

C. V an W oodward, T he Strange Career of J im Crow 
(3rd ed. 1974) .......................................  55

M. W einberg, A Chance to L earn (1977) .............. iGa> jg a
Weiner & Milton, Demographic Correlates of Loiv 

Birth Weight 91 A m . J. E pidemio, 260 (Mar. 1970) 60, 33a 
C. W ollenrerg, A ll D eliberate S peed, S egregation 

and E xclusion in California S chools, 1885-1975
(197<i) ................................................................ . 17a, 18a

I n t h e

Supreme (tort ut tljr Imtrii ^tutra
October Term, 1976 

No. 76-811

T he R egents of the U niversity of California,

Petitioner,
— v—

A llan B akke.

ON WRIT OF CERTIORARI t o  THE SUPREME COURT OF CALIFORNIA

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest o f Amicus

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation established under the laws 
of the State of New York. It was formed to assist black 
persons to secure their constitutional rights by the prose
cution of lawsuits. Its charter declares that its purposes 
include rendering legal services gratuitously to black per
sons suffering injustice by reason of racial discrimination. 
For many years attorneys of the Legal Defense Fund have 
represented parties in litigation before this Court and the 
lower courts involving a variety of race discrimination 
issues in the fields of education and health care. See, e.g.. 
Brown v. Board of Education, 347 U.S. 483 (1954); Sim- 
Icins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th



2

Cir 1963), cert, denied 376 U.S. 938 (1964). The Legal 
Defense Fund believes that its experience in such litigation 
and the research it has performed will assist the Court in 
ns case The parties have consented to the filing of this 

brief and letters of consent have been filed with the Clerk.

Summary o f Argument

We submit that the Fourteenth Amendment prohibits 
any racml classification which has the purpose or effect 
of stigmatizing as inferior any racial or ethnic group. The 
istory of the Fourteenth Amendment demonstrates how

ever, that the framers intended it to legitimate and to 
allow implementation of race-specific remedial measures 
where a substantial need for such programs was evident, 
iins history is clear and unequivocal.

There has been extensive de jure segregation in the 
California public educational system, an inevitable result 
of which has been the production of a disproportionately 
low number of minority-race doctors. Moreover minority 
populations in California and the nation suffer serious 
health and health care delivery problems. Petitioners’ spe
cial admission program is intended and reasonably struc 
ured to ameliorate both of these conditions and is there

fore constitutional under the Equal Protection Clause.

ARGUMENT
I.

Introduction

Much has been written on the question presented in 
this case, and a large number of amicus curiae briefs 
have hoc, filed. Wo will not attempt to recapitulate wha 
has been submitted and will rather try to set forth rele-

3

vant materials which have not, insofar as we are aware, 
been presented for the Court’s consideration.

We begin with what we believe to be a focusing charac
terization of the facts which engendered this litigation: 
while Linda Brown was denied entrance to Topeka’s 
Sumner Elementary School almost three decades ago be
cause she was black, respondent Allan Bakke is not a 
member of a racial group which is systematically ex
cluded from the University of California-Davis medical 
school; indeed, whites comprise and have comprised the 
vast majority of the student body. The school’s special 
admission policy did favor—for permissible reasons which 
we shall discuss—minority groups of which respondent 
Bakke was not a member, and a result was to deny ad
mission to some applicants because there were not enough 
places for all those who wished to attend. But the critical 
fact about the special admission policy is, we submit 
that it had neither the intention1 nor effect of stigmatizing 
respondent as inferior or slurring him because of his race 
or color.

The Equal Protection Clause of the Fourteenth Amend
ment invalidates a State statute or policy, aimed at any 
racial or ethnic group, which “ is practically a brand upon 
them, affixed by the law; an assertion of their inferiority,

Respondent has not contended that the University’s special ad
mission program was adopted with the purpose of stigmatizing non
minority applicants as inferior, and nothing in the record contro
verts the University’s allegation, made in its cross-complaint for 
declaratory relief, that “ the purposes of the special program were 
to promote diversity in the student body and the medical profes
sion, and to expand medical education opportunities to persons 
from economically or educationally disadvantaged backgrounds.”
Bakke v. Regents of University of California,------ Cal 3d -____  132
Cal. Rptr. 680, 553 P.2d 1152, 1155 (197G). It is rather the effect 
of this admissions program which respondent Bakke claims subjects 
him to “ invidious discrimination because of his race,” ibid, (empha
sis added).



4

and a stimulant to . . . race prejudice.” Strauder v. West 
Virginia, 100 U.S. 303, 308 (1880). The harshly discrimi
natory “black codes” enacted by the Confederate States 
shortly after Appomattox supplied a major impetus for 
the adoption of the Fourteenth Amendment.2 A percep
tion of the unconstitutionality of invidious and stigmatiz
ing racial classifications was at the heart of the Court’s 
landmark Brown v. Board of Education, 347 XJ.S. 483 
(1954),3 decision, and this recognition has recently been 
rearticulated by a majority of the Court.4 * See also Morton 
v. Mancari, 417 U.S. 535, 554 (1974).4a

2 tenBroek, Equal Under Law 180-181 (rev. ed. 19G5); Flack,
The Adoption op the Fourteenth A mendment 15, 72-73, 96 
(1908) ; Bielcel, The Original Uriderstanding and the Segregation 
Decision, 69 IIarv. L. Rev. 1, 13-14, 17 (1955). See also Cong 
Globe, 39th Cong. 1st Sess. 603, 1117, 1118, 1123-1125, 1151 1160 
(1866); Slaughter-House Cases, 83 U.S. (16 W all) 36 ’ 70-71 
(1873). ' '

3 The Court held that to separate black school children “ from 
others of similar age and qualifications solely because of their race 
generates a feeling of inferiority ns to their status in the commu
nity that may affect their hearts and minds in a way unlikely ever 
to be undone.” Brown v. Board of Education, supra, 347 U.S. at 
494. The Court’s decision recognized “ a plain fact about the soci- 
ety of the United States—the fact that the social meaning of segre- 
gation is the putting of the Negro in a position of walled-off in
feriority— or the other equally plain fact that such treatment is 
hurtful to human beings.”  Black, The Lawfulness of the Segrega
tion Decisions, 69 Yale L.J. 421, 427 (1960).

In United Jewish Organizations of Williamsburgli Inc v 
Carey, — U S . ------ , 51 L.Ed. 2d 229 (1977), the Court consid
ered whether New York’s use of racial criteria to draw electoral 
district lines, in an effort to comply with Section 5 of the 1965 
Voting Rights Act, violated either the Fourteenth or Fifteenth 
Amendment. Three members of the Court found New York’s re- 
districting plan constitutionally acceptable despite the fact that the 
State “ used race in a purposeful manner” because “ its plan repre
sented no racial slur or stigma with respect to whites or any other 
race”— the State’s action was thus “ not discrimination violative of 
the Fourteenth Amendment.”  51 L.Ed. 2d at 246 (opinion of Mr.
(See footnote da on following page.)

5

The absence of a stigmatizing intent in this case is sig
nificant because the Court has recently asserted that dis
proportionate racial impact is ordinarily6 not alone enough 
to “ trigger the rule . . . that racial classifications are to bo 
subjected to the strictest scrutiny and justifiable only by 
the weightiest of considerations.” Washington v. Davis, 
42G U.S. 229, 242 (197G). Application of this standard 
would ipso facto require reversal of the judgment below. 
But respondent contends that since petitioner’s admis
sions policy consciously takes race into consideration and 
in many cases6 applies a differential admissions standard

Justice White for the Court). Two other members of the Court 
agreed that “ [ujnder the Fourteenth Amendment the question is 
whether the reapportionment plan represents purposeful discrimi
nation against white voters . . . .  The clear purpose with which 
the New York Legislature acted— in response to the position of the 
United States Department of Justice under the Voting Rights Act 
— forecloses any finding that it acted with the invidious purpose of 
discriminating against white voters.”  51 L.Ed. 2d at 254-255 (con
curring opinion of Mr. Justice Stewart) (footnote omitted).

4a Morton v. Mancari, though dealing with a “ tribal” rather than 
a strictly racial preference, 417 U.S. at 553, is particularly relevant 
to this case, for there the Court held that the Fifth Amendment’s 
prohibition of racial discrimination, Bolling v. Sharpe, 347 U.S. 
497 (1954), was not violated by a hiring preference for certain 
Indians by the Bureau of Indian Affairs. The Court ruled that 
such a preference was appropriate “ to enable the B IA  to draw more 
heavily from among the constituent group in staffing of its projects, 
all of which, either directly or indirectly, affect the lives of tribal 
Indians.” Supra at 554. It was held that Congress could permissi
bly have found that the inclusion of such Indian personnel would 
“ make the BIA more responsive to the needs of its constituent
groups.”  Ibid.; see also Califano v. Webster, ------- U.S. ------ , 45
U.S.L.W. 3630 (March 21, 1977).

6 But see Washington v. Davis, 426 U.S. 229, 252-256 (1976) 
(concurring opinion of Mr. Justice Stevens); Oomillion v. Light- 
foot, 364 U.S. 339 (I960); Yick Wo v. nopkins, 118 U.S. 356 
(1886).

6 The categories established in petitioner’s admissions program 
were by no means racially hermetic. A  number of minority appli
cants were admitted under the regular admissions program between 
1970 and 1974. Bakke v. Regents of University of California, supra,



6

on the basis of race, the policy is unconstitutional under 
the Fourteenth Amendment without regard to stigmatizing 
motivation.

The Court below has purported to consider the validity 
of petitioner’s admissions policy “ [rjegardless of its [the 
Equal Protection Clause’s] historical origin,” Balclce v.
Regents of University of California,------ Cal.3d------- , 132
Cal. liptr. 680, 553 P.2d 1152, 1163 (1976). This Court has 
emphasized, however, that constitutional questions arising 
under the Fourteenth Amendment cannot “be safely and 
rationally [re] solved without a reference to that history 
[of the Amendment’s enactment],” Slaughter-House Cases, 
83 U.S. (16 Wall.) 36, 67 (1873),7 and the first question this 
Court asked counsel in the 1954 desegregation cases to ad
dress upon reargument was the intention of the framers 
of the Fourteenth Amendment as to school segregation.8

553 P.2d at 1165 n.21. Petitioner did not contest, however, the 
trial court’s finding that “ applicants who are not members of a 
minority are barred from participation in the special admission 
program,”  id. at 1159.

7 “ Our sworn duty to construe the Constitution requires . . . that 
we read it to effectuate the intent and purposes of the Framers. We 
must, therefore, consider the history and circumstances indicating 
what the Civil War Amendments were in fact designed to achieve.” 
Bell v. Maryland, 378 U.S. 226, 288-289 (1964) (concurring opinion 
of Mr. Justice Goldberg). A  “ questio[n] of constitutional construc
tion . . .  is largely a historical question,” Sparf v. United States 
156 U.S. 51, 169 (1895).

8 Brown v. Board of Education, 345 U.S. 972 (1953) :
“ In their briefs and on oral argument counsel are requested to 
discuss particularly the following questions insofar as they are 
relevant to the respective cases:
1. What evidence is there that the Congress which submitted 
and the State legislatures and conventions which ratified the 
Fourteenth Amendment contemplated or did not contemplate, 
understood or did not understand, that it would abolish segre
gation in public schools?”

7

We therefore believe it desirable—and necessary7 8 * *—to set 
forth at some length the historical circumstances surround
ing the enactment of the Fourteenth Amendment. For 
while this history has been frequently analyzed, and is 
often Delphic, it is squarely controlling here since the pre
cise question at issue in this case—the permissibility of 
providing educational benefits to blacks but not whites— 
was heatedly debated and self-consciously resolved by the 
same Congress which approved the Fourteenth Amend
ment. In light of this contemporaneous evidence, set forth 
in Part II, infra, the history of the Fourteenth Amendment 
is neither ambiguous nor “ inconclusive,”  Brown v. Board of 
Education, supra, 347 U.S. at 489.

It is true, of course, that “ [t]ime works changes, brings 
into existence new conditions and purposes, . . . [and] a 
principle, to be vital, must be capable of wider application 
than the mischief which gave it birth,” Weems v. United 
States, 217 U.S. 349, 373 (1910). While the clock cannot be 
turned back to the 1860’s, the resolution of the debate con
cerning race-conscious educational remedies in the Thirty- 
Ninth Congress is controlling today because the conditions 
which originally engendered these remedies—the “ mis
chief” at which the Fourteenth Amendment was principally 
aimed—are still present today. After a discussion of these 
Reconstruction measures adopted by the same Congress 
that enacted the Fourteenth Amendment, see Part II infra, 
we set forth the substantial and legitimate reasons peti
tioner adopted its special admission program. We first de
scribe the de jure segregation in California’s elementary 
and secondary education system, see Part TIT infra, and

8 It cannot now be confidently asserted that “ [fjortunately, that 
history [of the adoption of the Civil War Amendments] is fresh 
within the memory of us all,”  Slaughter-JIouse Cases, 83 U.S. (16 
Wall.) 36, 68 (1873)).



8

then discuss the medical needs and health manpower short
age among racial minorities in this country and the way in 
which production of minority-race doctors serves to amelio
rate these problems, see Part 11(c) and IV infra.

As we have previously noted, see note 1 supra, “ [t]here 
can be no doubt that . . . [this policy] may be regarded as 
an enactment [intended] to enforce the Equal Protection 
Clause.” Katzenbach v. Morgan, 384 U.S. 641, 652 (1966). 
Moreover, petitioner brought to the solution of these per
ceived problems of discrimination and health care “a spe
cially informed . . . competence,” id. at 656 (footnote 
omitted),10 and acted pursuant to formal legislative policy, 
most recently declared in Assembly Concurrent Resolution 
Number 151 (1974), which mandated:

“That the Regents of the University of California, the 
Trustees of the California State University, and Col
leges, and the Board of Governors of the California 
Community Colleges . . . prepare a plan that will pro
vide for addressing and overcoming, by 1980, ethnic, 
economic, and sexual underrepresentation in the make
up of the student bodies of institutions of public higher 
education as compared to the general ethnic, economic, 
and sexual composition of recent California high 
school graduates.”

We submit that in the absence of any proven stigmatizing 
motives and upon demonstration.that this racially conscious 
admissions policy (which earmarked 16% of the places in 
first year medical school classes for minority groups con-

10 Cf. Katzenbach v. Morgan, supra, 384 U.S. at 653:
“ It is not for us to review the congressional resolution of these 
factors [which impelled Congress to enact the Voting Rights 
Act of 1965], It is enough that we be able to perceive a basis 
upon which the Congress might resolve this conflict as it did.”

9

stituting approximately 16% of California’s population) 
advances substantial State interests, petitioner should be 
allowed to decide whom it will train as medical doctors in 
light of its perception of society’s needs.1' As this Court 11 12 * * *

11 No particular racial minority is specially favored by petition
er’s special admissions program, which is open to, inter alia, blacks, 
Hispanic Americans, native Americans, and oriental Americans. In 
1970, there were 17,761,000 whites, 1,400,000 blacks, 91,081 native 
Americans, 522,270 oriental Americans, and 178,671 members of 
other minority groups in California, with the latter four groups 
constituting approximately 11% of the State’s population. Buueau 
oi'’ the Census, Statistical A bstkact oe the United States 1976, 
at pp. 31, 32 (1976). The Bureau of the Census counts Hispanic 
Americans in its “white” category, and this group comprised 5.6% 
of California’s population in 1970, id. at 36, making a total “minor
ity” population in the State of about 16.6%.

12 We recognize that “community prejudices are not static, and 
from time to time other differences from the community norm 
[than race] may define other groups which need . . . [constitu
tional] protection,” Hernandez v. Texas, 347 U.S. 475, 478 (1954). 
Over a hundred years ago, the Court stated that “ [w]e do not say 
that no one else but the negro can share in this protection [of the 
post-civil war a m e n d m e n ts ]Slaughter-House Cases, 83 U.S. (16 
Wall.) 36, 72 (1873). Should a federal court be confronted with 
an arcane racial (or ethnic or religious) classification in a state 
educational admissions policy, its first task would be to determine 
whether this classification has the purpose or effect of stigmatizing 
the classified group as inferior. “Whether such a group [in need 
of constitutional protection] exists within a community is a ques
tion of fact.” Ibid. Invidious racial classifications are “constitu
tionally suspect,” Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (foot
note omitted), and subject “ to the ‘most rigid scrutiny’ ”  and justi
fication, McLaughlin v. Florida, 379 U.S. 184, 192 (1964). Such 
classifications have been upheld by this Court only in light of 
“ [p]ressing public necessity,”  Korematsu v. United Slates, 323 
U.S. 214, 216 (1944). Of course, even if not invidious or stigma
tizing, such classifications may nevertheless violate the Fourteenth 
Amendment since the Equal Protection Clause “ den[ies] to States 
the power to legislate that different treatment be accorded to per
sons placed by a statute into different classes on the basis of cri
teria wholly unrelated to the objective of that statute.” Reed v. 
Reed, 404 U.S. 71, 75-76 (1971). The classifications which a State 
enforces “ must be reasonable, not arbitrary, and must rest upon 
some ground of difference having a fair and substantial relation to
the object of the legislation, so that all persons similarly circum
stanced shall be treated alike.”  Royster Guano Co. v. Virginia, 253
U.S. 412. 415 (1920).



10

has now wisely recognized, the Fourteenth Amendment did 
not enact Mr. Herbert Spencer’s Social Statics}3 But 
neither did it enact the Educational Testing Service’s 
Medical College Admissions Tests. While the Constitution 
may not have compelled adoption of the special admission 
program, petitioner has voluntarily and in good faith 
sought to remedy the lingering effects of racial discrimina
tion. “To use the Fourteenth Amendment as a sword 
against such State power would stultify that Amendment.” 
Hallway Mail Association v. Corsi, 326 U.S. 88, 98 (1945) 
(concurring opinion of Justice Frankfurter).14

II.

The Legislative History o f  the Fourteenth Amendment

The propriety of race-conscious remedies was a matter 
squarely considered by the Congress which fashioned the 
Fourteenth Amendment, and that Congress believed such 
remedial programs not merely permissible but necessary. 
From the closing days of the Civil War until the end of 
civilian Reconstruction, Congress adopted a series of social 
welfare laws expressly delineating the racial groups en
titled to participate in or benefit from each program. Con-

. 13 Lochner v. New York, 198 U.S. 45 75 1 1 9 0 5 1 ( 7 1 , •  
(°1963)JUStlCe HolmeS) : Fer<Juson v. Skrupa, 372 U.S. 726, 7^8-733

14 In Railway Mail Association v. Corsi swam +W „
constitutionality of a New York “ Civil Rights Law” 

at 89’ whle!1 f 0I'bade any labor organization to deny equal’ 
treatment to any of its members “ by reason of race color or creed ” 
ibid. A  labor union had attacked the Law as violative of the Due 
Process and Equa! Protection Clauses of the Fourteenth Amend! 
ment. Hie Court rejected this argument, noting that “ fal imlieiol 
determination that such legislation violated the Fourteenth Amend 
ment would be a distortion of the policy manifested in th a Z Z  f  
!!l(™ | W |1Clr V“  adopted to prevent state legislation designed to 
1R 93 94 ™ natl°n ° "  tJle basis of race or color.” 326 U.S

11

gress adopted these race-specific measures over die objec
tions of critics who opposed such special assistance for a 
single racial group. The most far reaching of these pro
grams, the 1866 Freedmen’s Bureau Act, was enacted less 
than a month after Congress approved the Fourteenth 
Amendment, and there is substantial evidence that a major 
reason Congress adopted the Amendment was to provide 
a clear constitutional basis for such race-conscious rem
edies.

The range and diversity of these measures is striking. 
The Bureau of Refugees, Freedmen and Abandoned Lands, 
(popularly known as the Freedmen’s Bureau) was author
ized by Congress in 1866 to provide land and buildings and 
spend designated funds for “ the education of the freed 
people,” 16 but could provide no such aid to refugees or 
other whites. The same statute conveyed a number of dis
puted lands to “heads of families of the African races” and 
authorized the sale of some thirty-eight thousand other 
acres to black families who had earlier occupied them un
der authority of General Sherman.16 Congress in 1867 
made special provision for disposing of claims for “pay, 
bounty, prize-money, or other moneys due . . . colored sol
diers, sailors, or marines, or their legal representatives.” 17 
It awarded federal charters to organizations established to

1614 Slat., c.200 at 174, 176 (1866).
1614 Stat., c.200 at 174, 175 (1866). The statute referred simply 

to “such persons and to such only as have acquired and are now 
occupying lands under and agreeably to the provisions of General 
Sherman’s special field order, dated at Savannah, Georgia, Janu
ary sixteenth, eighteeen hundred and sixty-five.’.’ That order, as 
Congress well knew, provided that the land in question in South 
Carolina and Georgia was “ reserved and set apart for the settle
ment of the negroes now made free by the acts of war and the 
proclamation of the President of the United States,” II W. Flem
ing, Documentary History op Reconstruction 350 (1906).

1715 Stat., Res. 25 at 26 (1867).



12

supPor [t] . . . aged or indigent and destitute colored women 
and children,” 18 to serve as a bank for “persons heretofore

I 3 77 ^  the Unitecl States> or their descen
dants and to educate and improve the moral and in
tellectual condition of . . . the colored youth of the nation” »  
(these youth were also provided assistance to them in the 
form ot funds11 and land grants).”  Express appropriations 
were made for “ the relief of freedmen or destitute colored 
people in the District of Columbia ” «  and for a hospital 
for freedmen established in the District«  No comparable
federal programs existed fo r -o r  were established-for 
whites.* * * * * * * 26

1812 Stat., c.33 at 650 (1863).
1513 Stat., c.92 at 511 (1865).
2012 Stat., c.103 at 796 (1863).

end It t a s l T O t f o "  (I866)' S" h ,Ssi!“ “ c'  * « « r  « «

tl.re^dSo“ K e « ,U 6“ n(I8C3)' S“ h ,SSis,“ “  *'<»
2315 Stat., Res. 4 at 20 (1867).

( m m  it 's,It 16 St*-' c'n l  “  r,oc-5"7
priations the hospital was supported by^h rP reeX ien ’sB u re a ir0'

with the freedmen, to ‘up to io ^ w ^ o n a J d ^ ro m 80 Gntltled’ along

emasculated when President Johnson directed th ^ reS riT S  .I n T ’ f 
the seized property to its original owners. See Report of t)ir°rn ° f

IT O. H oward, A utobiography 229, 233, 235 (1907D1I4J Bi ’ 
Twenty Y ears in Congress 164 (1886); G. Bentley,1 A  H istory’

13

These racial distinctions were neither inadvertent nor 
•unopposed. A vocal minority in Congress, as well as Pres
ident Andrew Johnson, criticized such proposals as class 
legislation discriminating against whites. A substantial 
majority of the Congress, however, believed such special 
treatment appropriate and necessary to remedy past mis
treatment of blacks.

We shall examine in detail the legislative history of 
eight measures: the 1864 Frecdmen’s Bureau bill, the 1865 
Freedmen’s Bureau Act, the 1866 Freedmen’s Bureau Act, 
the 1867 Colored Servicemen’s Claims Act, two 1867 relief 
statutes, and two 1868 statutes extending the Freedmen’s 
Bureau. The most important of these debates concerned 
the 1866 Freedmen’s Bureau Act; it was here that the 
arguments for and against special legislation for blacks 
were most fully developed, and it was at this time that 
the Fourteenth Amendment was considered and approved 
by Congress.

A. Race-Conscious Legislation of the Reconstruction Era

(1) The 1864 Freedmen’s Bureau Bill

The first major legislation specifically designed to aid 
blacks26 called for the creation of a new agency, the Bureau 
of Freedmen’s Affairs, to provide special assistance and 
protection.27 The beneficiaries of this plan were described

op the Freedmen’s Bureau 89-96 (1955). No limitations were
placed, however, on the Southern Public Lands Act of 1866 or on
Federal food provided in the south and southwest during the fam
ine of 1867; these were available, respectively, with “ no distinction
or discrimination . . .  on account of race or color,” 14 Stat., c.127
at 66, 67 (1866), and “ to any all classes of destitute or helpless
persons,” 15 Stat. Res. 28, 28 (1867).

26 Cono. Globe, 38th Cong., 1st Sess. 19 (1864).
27 The Bureau’s responsibilities were to include overseeing the 

enforcement of all laws “ in anyway concerning freedmen aiding



14

in the House bill as “persons of African descent,” 28 and 
in the Senate version as “ such persons as have once been 
slaves.” 29 30 The Senate rejected a draft that would have 
limited coverage to “ such persons as have become free 
since the beginning of the present war,” 80 the Senate spon
sor arguing that blacks might require its “aid and protec
tion” even though freed decades before the war.31

A variety of arguments were advanced in opposition to 
these bills, with the Democrats contending that such social 
legislation was traditionally the exclusive concerns of the 
states and should be left to them.32 The bill was also op
posed because it applied only to blacks, the argument be
ing framed in several different ways. A minority of the 
House Select Committee on Emancipation objected—in lan
guage much like that used in today’s debates about affirma
tive action to whites being taxed to support such assis
tance for blacks.

“A proposition to establish a bureau of Irishmen’s af
fairs, a bureau of Dutchmen’s affairs, or one for the 
affairs of those of Caucasian descent generally, who 
are incapable of properly managing or taking care of 
their own interests by reason of a neglected or defi-

them m fashioning and enforcing their labor contracts and leases 
participating in litigation “as next friends of the freedmen ” and 
renting to them such abandoned confederate real estate as came 
into the possession of the United States. The Senate version of the 
bill is set out at Cono. Globe, 38th Cong. 1st Sess., 2738 (18G4).

28 Id. at 2801.
29 Id. at 2708.

30 This was the language proposed by the Senate committee. Id. 
at p. 2798. It was amended on the door at the urging of the Senate 
sponsor, Senator Sumner. Id. at 2800-01.

„ ..SI I(\  at j;971’ The bill applied, however, only to blacks in
the rebel States.”

32 Id. at 7G0; Conci. Globe, App., at 54.

15

cient education, would, in the opinion of your com
mittee, be looked upon as the vagary of a diseased 
brain. Why the freedmen of African descent should 
become these marked objects of special legislation, to 
the detriment of the unfortunate whites, your commit
tee fail to comprehend . . . .  The propriety of incur
ring an expenditure of money for the sole benefit of 
the freedmen, and laying a tax upon the labor of the 
poor and, perhaps, less favored white men to defray 
it, is very questionable . . . .  [I] f [the Bureatt] is to 
be converted into a grand almshouse department, 

. whereby the labor and property of the white popula
tion is to be taxed to support the pauper labor of the 
freedmen . . .  its operations cannot be too closely 
scrutinized.” 38

33II. It. Rep. No. 2, 38th Cong., 1st Sess., at 2, 4 (1864). The 
minority criticized the provisions on abandoned lands because 
whites were to be excluded from them.

“Your committee cannot conceive of any reason why this vast 
domain, paid for by the blood of white men, should be set 
apart for the sole benefit of the freedmen of African descent, 
to the exclusion of all others.”

Id. at 3. There seems to have been some uncertainty on the floor 
as to whether the bill in fact prohibited leases to whites. See Cong. 
Globe, 38th Cong., 1st Sess., 775 (1864). Congressman Knapp, 
one of the Committee minority, later expanded this objection be
yond the lands provisions.

“ If there is any duty on the part of the Government to support 
these persons who have been rendered destitute by the opera
tion of this war, I ask why not support all the bruised and 
maimed men, the thousands and tens of thousands of widows, 
and the still larger number of orphans left without the pro
tection of a father . . . .  I f this bill is to put upon the ground 
of charity, I ask that charity shall begin at home and . . .  I 
shall claim my right to decide who shall become the recipients 
of so magnificent a provision, and with every sympathy of 
my nature in favor of those of my own race.”

Cono. Globe, 38th Cong., 1st Sess. App., 54 (1364). As the hypo
thetical tone of this statement suggests, Knapp was not squarely 
advocating that whites be afforded the benefits of the bill, but only



16

In the Senate, opponents did not focus on the differing 
treatment of blacks and whites under this particular bill, 
hut criticized it as part of a general Republican policy of 
preferential treatment for blacks. Senator Richardson 
complained:

“ [T]hc idea now sought to be carried out and con
summated by this bill, to make war for, to feed, to 
clothe, to protect and care for the negro, to give him 
advantages that the white race do not receive or claim, 
is one that has characterized the legislation of Con
gress and all the acts of the President and his Cabinet 
for the past three years.” 34

Proponents of the hill emphasized that it was needed 
to overcome the effect of past mistreatment of blacks,35 36 
and it passed the House on March 1, 1864,36 and, in'a 
different form, the Senate on June 28, 1864.37 The two 
Houses could not, however, iron out their differences,38 *

that they be treated the same as blacks. Representative Knapp 
also urged as a reason for opposing the bill that it might lead to 
comprehensive federal social legislation for both whites and blacks 
Id. at 701; see also id. at 763 (remarks of Rep. Brooks).

u Id. at 2801 Similar views were expressed by Senators Powell, 
baulsbury and Hicks. Id. at 2787, 2933, 2966, 3366.

36 Id. at 572, 572-573, 774, 2799.
38 Id. at 895. The vote was 69 to 67.
37 Id. at 3350. The vote was 21 to 9.

38 The substantive provisions of the two bills were largely identi
cal, but they differed as to the department in which the Bureau
was to be located; the House wished to place it in the Department 
of War, while the Senate preferred the Department of the Treas-

A History op tiie Pkeedmen’s Bureau 39- 
48 (1Jo5). 11ns difference ultimately proved fatal to the bill The 
Conference Committee, unable to agree whether to place the Bu
reau in the Departments of War or Treasury Department, reported 
to the next session a bill establishing instead an independent “De
partment of Freedmen and Abandoned Lands.”  Cono. Globe, op.

17

and as the Civil War neared its end, new legislation was 
introduced.

(2) The 1865 Freedinen’s Bureau Act

After the extensive debates of 1864 and the failure to 
agree on a compromise bill, the House passed on Feb
ruary 18, 1865, a simplified bill introduced by Congress
man Schenck38 establishing a new Bureau of Refugees, 
Freedmen and Abandoned Lands to be situated within 
the War Department40 and to continue operation until one 
year after the end of hostilities. With very little debate, 
a similar bill passed the Senate, a conference bill was ap
proved by both Houses, and President Lincoln signed the 
measure on March 3, 1865.41

The 1865 Act contained three substantive provisions. 
First, the Secretary of War was authorized to provide

cit., at 563-564, 767. The Conference bill was widely criticized as 
being a new bill altogether, rather than merely a compromise of 
the House and Senate versions. Id. at 689 (remarks of Rep. Wash- 
burne), 691 (remarks of Rep. Schenck, 785 (remarks of Sen. 
Davis), 958 (remarks of Sen. Hendricks and Sen Grimes). Despite 
this objection, the House agreed to the conference bill by a 64-62 
vote. Id. at 694. The Senate, however, which had earlier approved 
the bill by a margin of 21-9, voted on February 22, 1865, to reject 
the conference bill by a margin of 24-14 and asked for another con
ference. Id. at 990. Since by this point the war was virtually over, 
and the need for some aid provision particularly urgent, Congress 
turned from the complex bill it had been considering for over a 
year to a similar measure for a Bureau of more limited authority 
whose location was to prove less controversial.

33 Id. at 908. During the debates on the 1864 bill, Congressman 
Schenck and others urged that provision be made for white refu
gees because they faced many of the problems of poverty and local 
hostility which affected freedmen. Id. at 691, 960, 962, 984, 985. 
Congressman Eliot, the sponsor of the 1864 bill, stated that he had 
no objection to including refugees if such a need were demon
strated. Id. at 693.

40 Id. at 1182, 4037; S. Rep. No. 137, 38th Cong., 2d Sess. (1865).
41 Act of Mar. 3, 1865, c.90, 13 Stat. 507-508.



18

“provisions, clothing and fuel” for “destitute and suffer
ing refugees and freedmen.” 42 Second, the Commissioner 
of the Bureau was authorized to lease, and ultimately sell, 
up to forty acres of abandoned land to any refugee or 
freedman. Third, the Bureau was invested with “ the con
trol of all subjects relating to refugees or freedmen.” 
Although the statute did not detail many of the powers 
enumerated in the 1864 bill for the aid of freedmen, this 
geneial language of its three substantive provisions was 
broad enough to authorize all such activities. In its actual 
opeiations, the Bureau undertook all the remedial activity 
contemplated by the 1864 bill for the assistance of blacks, 
and provided most of that assistance to blacks alone, see 
pp. 19-42 infra.

(3) The 1866 Freedmen’s Bureau Act

The Freedmen’s Bureau Act ultimately passed by the 
Thirty-Ninth Congress in 1866 was one of the most com
prehensive of the race conscious remedial measures en
acted during the Reconstruction period. The chronological 
sequence of events during this year is complicated* but 
important, and a brief perspective is useful before con
sidering in detail the various legislative debates. After 
lengthy discussion, Congress passed a Freedmen’s Bureau 
bill in February, 1866, S. 60, but this bill was vetoed im
mediately by President Johnson, and Congress failed to 
override the veto. The Civil Rights Act of 1866 was also 
passed by Congress in early 1866, and was vetoed, but 
Congress overrode this veto and enacted the measure in

o. t T !f l™ . W!is Suited to freedmen or refugees “ from the rebel 
States. Historians of tins period have not regarded the inclusion 
of the white refugees provisions in the bill a significant factor in 
its enactment. See, e,j „ G. Bentley, A History or t ie Freed

42 «  a s o T "  47*49 (M * >  > *■ p ™ .  T" “

19

April, 1866.43 During the spring, the Fourteenth Amend
ment was formulated, passed both Houses, and was sub
mitted by the Secretary of State on June 16, 1866, to the 
several States for ratification. While the Fourteenth 
Amendment was being debated in Congress, a second 
Freedmen’s bill was prepared, and a conference bill was 
approved by both Houses in July. President Johnson 
again vetoed the bill, but this time, the veto was over
ridden, and the Freedmen’s Act of 1866 was enacted on 
July 16, 1866.44 *

The consideration in 1866 of new legislation to protect 
the freedmen was undertaken after General Oliver Howard, 
Commissioner of the Freedmen’s Bureau, submitted a re
port46 in December, 1865, describing the Bureau’s activities 
under the 1865 statute. The report revealed that most of 
the Bureau’s programs in actual operation applied only to 
freedmen. Among the programs where only freedmen were 
among the named or intended beneficiaries were educa
tion,46 the regulation of labor,47 Bureau farms, land dis
tribution and adjustment of real estate disputes,48 super
vision' of the civil and criminal justice systems through 
the freedmen’s courts,49 * registration of marriages,60 and 
aid to orphans.61 General Howard’s recommendations to

43 Act of April 9, 1806, 14 Stat., c. 31, at 27.
44 Act of July 16, 1866, 14 Stat., e. 200, at 173-177.
46 H.R. Exec. Doc. No. 11, 39tb Cong., 1st Sess. (1865).
40 Id. at 2, 3, 12, 13.
47 Id. at 2, 12.
48 Id. at 4, 7-12.
49 Id. at 22.
60 Id. at 23.
61 Ibid. Both freedmen and refugees received medical assistance, 

but not in equal numbers; as of October 30, 1865, there were 27,819



20

Congress, which stressed particularly the importance of 
education,* 52 dealt almost exclusively with the needs of 
freedmen.53 54

After consulting at length with General Howard,55 
Senator Lyman Trumbull introduced a new Freedmen’s 
Bureau bill, S. 60,55 as a companion to the Civil Rights 
Act of 1866. S. 60 proposed to continue the operations of

freedmen under treatment, but only 238 refugees. Id. at 20-21. 
Freedmen received about three-quarters of all rations, and an un
stated share of clothing and fuel distributed. Id. at 13, 16. Only 
in the area of transportation were the numbers of freedmen and 
refugees indeed approximately equal, but this represented less than 
1% of the Bureau’s budget and was a function which the report 
described as “nearly ceased.” Id. at 14, 17. The regulations issued 
by Assistant Commissioners in the various states paralleled this 
distinction; those dealing with education, contracts, labor condi
tions, orphans or courts referred almost exclusively to freedmen, 
whereas regulations pertaining to rations, medicine and transpor
tation referred to both Freedmen and refugees. See ILK. Exec. 
Doc. No. 70, 39th Cong., 1st Sess. (1865).

52 “ Education is absolutely essential to the freedmen to fit them 
for their new duties and responsibilities . . . .  Yet I believe the 
majority of the white people to be utterly opposed to educating the 
negroes. The opposition is so great that the teachers, though they 
may be the purest of Christian people, are nevertheless visited, pub
licly and privately, with undisguised marks of odium.” II.K. Exec. 
Doc. No. 11, 39th Cong., 1st Sess. 33 (1866). Howard urged that 
sites and buildings be provided for schools, and that they “not be 
exclusively for freedmen; for any aid given to education the nu
merous poor white children of the south will be most important to 
the object our government has in view; I mean the harmony, the 
elevation, and the prosperity of our people. Id. at 34. Congress 
did not accept this suggestion. The first bill, S. 60, was limited to 
white children who were refugees, and the law ultimately adopted 
provided for educational assistance only to freedmen. See note 149 
infra.

53 Id. at 32-35.

54 IT O. Howard, A utobiography 280-81 (1907).
55 The bill in the form ultimately adopted by Congress in Feb

ruary but vetoed by the President, is set out in E. McPherson,
The Political History op the United States op A merica During
the Period op Reconstruction 72-74 (1871).

21

the Bureau “until otlurwise provided by law," and to 
extend its jurisdiction ;o refugees and freedmen ‘ in all 
parts of the United States.” 56 * *

The 1866 bill was opposed on grounds similar to those 
advanced against the 1865 proposal, but the arguments 
concerning special treatment for blacks were more fully 
developed. Although S. 60 made few significant racial 
distinctions on its face, opponents and supporters generally 
regarded it particularly in view of General Howard’s 
report as largely if not exclusively for the assistance of 
freedmen. Congressman Taylor, opposing the bill, con
tended there were no longer any refugees for the Bureau 
to assist;

“The Freedmen’s Bureau was established ostensibly 
for the aid and protection of refugees and freedmen. 
At the time the bureau was created there was a large 
class of refugees, or persons, both white and black, 
who were very properly denominated refugees; persons 
who had escaped and broke through the enemy’s lines 
into our own for safety. But now, since the war has 
ceased, the term ‘refugees’ ceases to describe any 
class of persons among us. That class of persons 
which the word refugees was descriptive of have now

56 An extensive geographic organization was contemplated, with 
agents, where necessary in every county. The purchase of school 
buildings for refugees and freedmen was directed, subject, how
ever, to an express appropriation by Congress. The President was 
authorized to reserve for freedmen and refugees up to three million 
acres of “ good”  public land, to be rented and ultimately sold in 
parcels not exceeding forty acres. Blacks occupying certain lands 
south of Savannah were assured possession for another three years 
and the Commissioner was authorized to provide them with other 
property thereafter. Discrimination against freedmen or refugees 
in the administration of the criminal or civil law was prohibited 
in terms similar to the 1866 Civil Rights Act, except that viola
tions were to be tried before agents of the Bureau under rules 
and regulations set by the War Department.



22

returned to their homes; and the great change wrought 
by the termination of the war in the circumstances 
and condition of that class of persons leaves the name 
of refugee without a meaning, as in its original ap
plication, therefore obsolete and inapplicable in de
scribing any class of persons now having a habitation 
within the United States.

Now, according to my understanding of the mean
ing of the name refugee as it is used in the bill creat
ing the bureau and the bill now before us, the present 
proposed legislation is solely and entirely for the 
freedmen, and to the exclusion of all other per
sons. . . .” 57

Representative Chanler reviewed the Bureau’s report in 
detail to demonstrate the paucity of assistance to refugees:

“ This present bill is to secure the protection of the 
Government to the blacks exclusively, notwithstanding 
the apparent liberality of the measure to all colors 
and classes . . . General Howard’s report establishes 
the fact that the present bureau gave most of its aid 
exclusively to the negro freedmen.” * 68

After quoting excerpts from the report, Chanler concluded:

“From these extracts it will plainly be seen that black 
freedmen and not white refugees were the special care 
of the bureau.

The white refugees were few in number and received 
no land from the Government. The period during

t J J S r i 0' QLT *  39tl1 lst Scss- 544 (]866) (the Globe fortins session will hereinafter be cited Globe; its Appendix Globe
A pp.). Sec also Globe 034, 635 (remarks of Representative Ritter).

68 Globe, App. 78.

23

which they received aid by transportation ended with 
the date of the report, or was rapidly doing so. The 
‘supervisors’ appointed were not instructed to aid the 
poor whites of the South, of whose destitute condition 
we hear so much. . . .” 50

Congressman Eliot, the House sponsor of S. 60, referred 
only to freedmen in describing the bill,60 and only men
tioned the coverage of refugees at the instance of another 
supporter.61 Proponents of the bill did not seriously con
test that its scope was as suggested by Taylor and Chanler, 
but grounded their arguments on the special needs of 
blacks.

Most opponents of the bill complained, in the words of 
Senator Wiley, that it made “a distinction on account of 
color between the two races.” 62 Senator McDougall, who 
believed in the natural superiority of members of the white 
race, objected:

“ This bill undertakes to make the negro in some re
spects their superior, as I have said, and gives them 
favors that the poor white boy in the North cannot get; 
gives them favors which were never offered to the 
Indian, whom I hold to be a nobler and far superior 
race. It makes us their voluntary guardians to see, 
in the first place, that they have the opportunity to 
work, and then their guardians to see that they get 
paid, and then that they are taken care of, and then 
we are to take care of them ourselves. I never had

60 Globe, App., p. 81.
60 Globe 514-15.
61 7(2. at 516.
62 Id. at 397; see also id. at 342 (remarks of Sen. Cowans), 544 

(remarks of Rep. Taylor), App. 82 (remarks of Rep. Chanler).



2-1

anybody to do that for me, even when I was quite a 
young lad; and from that time until now it has been 
my office to protect myself; to earn what I could for 
my own support. This hill confers on the negro race 
favors that have not been extended to many men on 
this floor within my personal knowledge.” “

Congressmen Marshall and Ritter contended the hill would 
result in two separate governments, “ one government for 
one race and another for another.” 64

Differing sections of the hill were singled out by op
ponents for particular criticism. Senator Saulshury ob
jected in particular to the lands provision:

“Another section requires that there shall be three 
million acres of land assigned in certain States in 
the South for those freedmen; and, mark you, the 
negro is a great favorite in the legislation of Congress, 
and the hill provides that it shall he ‘good land.’ No 
land is to he provided for the poor white men of this 
country, not even poor land; hut when it comes to the

83 Id. at 401.

64 Id. at G27 (remarks of Rep. Marshall), G34 (remarks of Rep. 
Ritter). Several members of Congress renewed the objection ad
vanced without success in 1865 that the bill would result in whites 
being taxed to assist blacks; Representative Ritter asked, “ Will 
the white people who have to support the government ever get 
done paying taxes to support the negroes?” Id. at G35; see also id 
at, 3G2 (remarks of Sen. Saulsbury); G34 (remarks of Rep. R itter); 
Globe, App. 83 (remarks of Rep. Chanler). Others argued that 
the bill would actually harm the Negro, either by increasing his 
dependence, Globe 401 (remarks of Sen. McDougall), or by°pro- 
voking white resentment. Globe, App. 69-70 (remarks of Rep. 
Rousseau). Several speakers thought the measure a device “ to 
practice injustice and oppression upon the white people of the 
late slave-holding states for the benefit of the free negroes.” Globe 
402 (remarks of Sen. D avis); see also id. at 251 (remarks of Sen 
Moecill) ; 415 (remarks of Sen. Davis) ; Globe, App. 78 (remarks 
of Rep. Chanler).

25

negro race three million acres must he set apart, and 
it must he ‘good land’ at that.” 66

Senator Guthrie complained that the litigation authorized 
before Bureau agents was solely for the protection of the 
freedmen:

“ All the suits to he instituted under this hill are to he 
those in which justice shall be administered in favor 
of the blacks; and there is not a solitary provision in 
it relative to suits in cases where the blacks do wrong 
to the whites.” 66

Congressman Rousseau cited the example of several schools 
in Charleston established apparently with the assistance 
of the Bureau, for the education of colored children, while 
federal authorities forbade the opening of public schools 
on an all-white basis:

“ Mr. Speaker, when I was a hoy, and in common with 
all other Kentucky hoys was brought in company with 
negroes, we used to talk, as to any project, about hav
ing ‘a white man’s chance.’ It seems to me now that a 
man may he very happy if he can get ‘a negro’s chance.’ 
Here are four school-houses taken possession of, and 
unless they mix up white children with black, the white 
children can have no chance in these schools for in
struction. And so it is wherever this Freedmen’s Bu
reau operates.” 67

66 Globe 362. Senator Hendricks was less concerned about the 
reservation of such lands in Southern states, but found it very 
objectionable” to reserve such property for blacks in the mid-west 
where there was “ likely to be a great demand for homesteads by 
white settlers.” Id. at 372. See also, id. at 373 (remarks of Sen. 
Johnson) ; 635 (remarks of Rep. R itter); Globe, App. 84 (remarks 
of Rep. Chanler).

66 Id. at 336. See also id. at 342 (remarks of Sen. Cowan).
67 Globe, App. 71.



26

Senator Johnson urged:

“If there is an authority in the Constitution to provide 
for the black citizen, it cannot be because he is black; 
it must be because he is a citizen; and that reason be
ing equally applicable to the white man as to the black 
man, it would follow that we have the authority to 
clothe and educate and provide for all citizens of the- 
United States who may need education and providing 
for.” 63

Opponents of S.60 suggested a variety of white groups 
which they claimed were equally entitled to assistance. 
Senator Hendricks referred to the plight of white south
erners generally:

“It is all very well for us to have sympathy for the 
poor and the unfortunate, but both sides call for our 
sympathy in the South. The master, who, by his 
wickedness and folly, has involved himself in the 
troubles that now beset him, has returned, abandoning 
his rebellion, and has bent down upon his humbled 
knees and asked the forgiveness of the Government, 
and to be restored again as a citizen.” 68 69

Senator Stewart cited the needs of the families of fallen 
Union soldiers:

“I have also sympathy for the widows and orphans of 
the North that have been bereaved by this terrible con
test, who are forgotten in our efforts for the negro. I 
have sympathy for the poor negro who is left in a 
destitute and helpless condition. I am anxious to enter 
upon any practical legislation that shall help all classes

68 Globe 372.
89 Id. at 319.

27

and all sufferers, without regard to color—the white 
as well as the black.” 10

Congressman Marshall pressed for aid instead to loyal 
white southerners whose property had been seized or used 
by the Union army:

“There are others who hat e higher claims to our con
sideration. In Tennessee and other southern States 
thousands of loyal men left their homes to battle for 
the flag of the Union; and in many cases their entire 
property was seized in tlieir absence and appropriated 
to the use and support of the Federal armies, and their 
families reduced to poverty and want. . . . And they 
now come here to ask the Government to pay only for 
the property actually taken for the use of the Govern
ment. The claim of these men to such compensation is a 
just and holy one. This is not denied. But I do not hear 
enactment of a law to pay these claims. You have,̂  on 
the contrary, passed a resolution that such claims 
shall not be considered, because, as you allege, the 
Government is not now able to pay these debts. . . . 
No peans are sung in praise of these wronged de
fenders of their country. They happen, unfortunately, 
to be white men and white soldiers, and they may 
starve and die from want, and no wail will be raised m 
their behalf; but when money is wanted to feed and 
educate the negro I do not hear any complaints of the 
hardness of the times or oi the scarcity of money.

Senator Davis, while opposing any such federal welfare 
program, thought southern white paupers equally entitled
to assistance:

70 Td. at 297.
71 Id. at 629.



28

“ [T]he free negroes in South Carolina and in all the 
southern States constitute a portion of their popula
tion. It is a principle of our system of government, 
and the Senator from Illinois cannot overturn or shake 
it, that every State is hound to provide for its own 
paupers, whether they he black or white. . . . The peo
ple of Kentucky would be gratified if the Congress 
of the United States could constitutionally take off 
them this burden. . . .  If there is an obligation or a 
duty or a power to take care of the negro paupers, 
there is, I suppose, an equal obligation to take care 
of the white paupers of the different states.” 72

Senator McDougall saw no reason to treat freedmen better 
than the “ [tjhousands of white boys in the North . . . the 
poor boys of our own race and people.” 73 74 *

Supporters of the bill defended it by stressing the spe
cial needs of blacks. Senator Fessenden, for example, 
stated:

“A large body of men, women, and children, millions 
in number, who had received no education, who had 
been laboring from generation to generation for their 
white owners and masters, able to own nothing, to 
accomplish nothing, are thrown, without protection, 
without aid, upon the charities of the world, in com
munities hostile to them.” 7<

72 Id. at 370.
73 Id. at 3G3.
74 Id. at 365. Congressman Donnelly urged:

“We have liberated four million slaves in the South. It is pro
posed by some that we stop right there and do nothing more. 
Such a course would be a cruel mockery. These men are with
out education, and morally and intellectually degraded by 
centuries of bondage.”

Id. at 588; see also Gloise, App. 75 (remarks of Rep. Phelps.) 
Assistance to this disadvantaged minority was argued to be in

29

Congressman Moulton distinguished Bureau aid to upgrade 
blacks from unfair discrimination:

“The object of the bill is to protect the colored man. 
The pro-slavery party on the other side of the House 
from the foundation of the Government up to the 
present time have done everything they could against 
ameliorating the condition of the colored men. . . .  One 
object of the bill is to ameliorate the condition of the 
colored man. . . . The gentleman has made another 
objection to this bill. . . .  He says the bill provides 
one law for one class of men, and another for another 
class. The very object of the bill is to break down the 
discrimination between whites and blacks. . . There
fore I repeat that the true object of this bill is the 
amelioration of the condition of the colored people.” 76

Congressman Phelps urged that the bill properly gave spe
cial assistance to blacks because they lacked the political in
fluence of whites to advance their own interests:

“The very discrimination it makes between ‘destitute 
and suffering’ negroes and destitute and suffering

the best interest of the country as a whole. Congressman Hubbard
insisted: .

“ They ou'dit not to be left to perish V  the wayside in poverty 
and starvation when the country so much needs their work. 
It is not their crime nor their fault that they are so miserable. 
From the beginning to the present time they have been robbed 
of their wages, to say nothing of the scourgings they have 
received I think that the nation will be a great gainer by 
encouraging the policy of the Freedmen’s Bureau in the cul
tivation of its wild lands, in the increased wealth which in
dustry brings and in the restoration of law and order in the 
insurgent States.”

Id at 630. Senator Donnelly urged that with such assistance the 
ne"ro “ becomes perforce a property-holder and a law-maker, and 
he is interested with you in preserving the peace of the country. 
Id. at 589.

76 Id. at 631-32.



30

white paupers, proceeds upon the distinction that, in 
the omitted case, civil rights and immunities are al
ready sufficiently protected by the possession of politi
cal power, the absence of which in the case provided 
for necessitates governmental protection.” 76

Despite some expressed doubts as to the hill’s constitu
tionality,77 Congress approved this legislation by sizeable

76 Globe, App. 75. Senator Fessenden responded to the com
plaint that whites would be taxed to aid blacks by arguing that the 
South had brought that upon itself by commencing the war. Globe 
36G. Particular emphasis was placed on the fact that the bill was in
tended and formed to assist blacks to better their own position, 
rather than merely providing relief. Senator Trumbull, the bill’s 
author and Senate sponsor, explained that such legislation was 
appropriate

“ to educate, improve, enlighten, and Christianize the negro; to 
make him an independent man; to teach him to think and to 
reason; to improve that principle which the great Author of 
all has implanted and every human breast . . .

Id. at 322. Trumbull urged that the
“ cheapest way by which we can save this race from starvation 

and destruction is to educate them. They will then soon be
come self-sustaining. The report of the Freedmen’s Bureau 
shows that today more than seventy thousand black children 
are being taught in the schools which have been established 
in the South. We shall not long have to support any of these 
blacks out of the public Treasury if we educate and furnish 
them land upon which they can make a living for themselves.”

Ibid. Congressman Donnelly similarly emphasized the importance 
of education to both the blacks and “ the safety of the nation.” 
Id. at 590.

77 As in 18G5, Congress was divided as to whether it had con
stitutional authority to adopt protective legislation of this sort.
Proponents of the bill relied, inter alia, on the Thirteenth Amend
ment and the analogy of aid to Indians. Referring to the section 
two of Amendment Senator Trumbull urged, “ I have no doubt 
that under this provision of the Constitution we may destroy all 
these discriminations in civil rights against the black man; and if 
we cannot, our constitutional amendment amounts to nothing. Id. 
at 322; see also id. at 366 (remarks of Sen. Fessenden); 393 (re-

31.

majorities. President Johnson, who had been expected to 
sign the Freedman’s Bureau bill, vetoed it instead on Feb
ruary 19, 18GG.78 Among other objections, the President 
saw both the adoption of social welfare programs by tie 
federal government and the selection of one group for spe
cial treatment as unprecedented. Congress, he urge ,

“has never founded schools for any class of our own 
people, not even for the orphans of those who have 
fallen in the defense of the Union, but has left the 
care of education to the much more competent and 
efficient control of the States, of communities, or pri
vate associations, and of individuals. It lias never 
deemed itself authorized to expend the public money 
for the rent or purchase of homes for the thousands, 
not to say millions, of the white race who are honestly 
toiling from day to day for their subsistence. A sys
tem for the support of indigent persons in the United 
States was never contemplated by the authors of the

marks of Senator McDougall) ; 623 (rem arks of R eP- K e rr ), 631 
(remarks of Rep. Moulton). Congressman Moulton asserted

“ I think the provisions of this bill are in accordance with the 
acts of the Government in reference to similar subjects. .
I may allude to the same practice in regard to the Iiulmn 
tribes  ̂ Only a few days ago a bill was introduced into this 
House by which we appropriated half a million dollars of 
money for some half-starved Indians.

Id at 631- see also id. at 319 (remarks of Sen. Trum bull); 323 
(remarks of Sen. Fessenden); 363 (remarks of Sen. Saulsbury). 
A substantial majority of both houses eoneluded that such a ms- 
tmee to blacks was both authorized and neeessaiy 1 he bill passed 
U,e Sen “ on January 25, 1888, by ,  vote of 37 to 10 and w .  
approved by tbe House on February 5,1805, by a vote ot 137 to 33. 
Id. at 421, 688.

18 Ilis lengthy veto message raised a variety of objections to 
the legislation, including doubts as to its necessity, fear of creating 
., nermanent institution, and a desire that such problems as might 
S  he solved instead by the States V III Messages and P apers 
oe the P residents, 3596-3603 (1914).



32

Constitution; nor can any good reason be advanced 
wliy, as a permanent establishment, it should be 
founded for one class or color of one people more than 
another.” 79

The Senate sought to override the veto the next day. 
Senator Davis argued strongly that the legislation was 
intended to elevate blacks to a position of superiority over 
whites:

“ [Wjhile holding out to the negro the magic lure of 
liberty and homes and largesses at the cost of the white 
people of the United States, the design is to re-enslave 
the freedmen and to reduce the white race of the 
southern States to a slavery even lower than that of 
the blacks.” 80

The broad powers of the Bureau, he urged,

“will enable it to depress the whites, to favor and hold 
up the blacks, to flatter the vanity and excite the in
solence of the latter, to mortify and irritate the former, 
and perpetuate between them enmity and strife.” 81

Senator Trumbull responded to the arguments in the veto 
message paragraph by paragraph,82 hut although the hill

73 Id. at 3599. lie  urged that, if federal protection was to be 
afforded blacks, it be limited to such relief as might be provided 
by the federal courts. Id. at 3600, 3603.

80 Gi.obe 935.
81 Ibid.

8“ In reply to the President’s contention that Congress had not 
in the past enacted class legislation, Senator Trumbull urged:

1 lie answer to that is this: we never before were in such a 
state as now; . . . never before in the history of this Govern
ment have nearly four million people been emancipated from 
the most abject and degrading slavery ever imposed on human
beings; never before has the occasion arisen when it was neces-

33

had earlier passed with better than a two-thirds majority, 
several supporters unexpectedly switched their positions 
and the vote in favor of the hill, 30 to 18,83 was insuffi
cient to override the veto.

This veto precipitated a final break with Congressional 
Republicans.84 On March 27, 18CG, the President vetoed 
the Civil Rights Bill of 1866 on the ground, in ter alia, that 
it provided blacks with unprecedented and unwarranted 
special treatment:

“ In all our history, in all our experience as a people 
living under Federal and State law, no such system 
as that contemplated by the details of this hill has 
ever before been proposed or adopted. They establish 
for the security of the colored race safeguards which 
go infinitely beyond any that the General Government

sary to provide for such large numbers of people thrown upon 
the bounty of the Government, unprotected and unprovided 
for. But, sir, when the necessity did exist the Government has 
acted. We have voted hundreds of thousands and millions of 
dollars, and are doing it from year to year, to take care of 
and provide for the destitute and suffering Indians. We ap
propriated, years ago, hundreds of thousands of dollars to 
take care and feed the savage African who was landed upon 
our coast by slavers . . . And yet, sir, can we not provide for 
those among us who have been held in bondage all their lives, 
who have never been permitted to earn one dollar for them
selves who, by the great constitutional amendment declaring 
freedom throughout the land, have been discharged from bond
age to their masters who had hitherto provided for their neces
sities in consideration of their services? Can we not provide 
for these destitute persons of our own land on the same princi
ple that we provide for the Indians, that we provide for the 
savage African?”

Id at 939. Senator Trumbull contended that the Thirteenth Amend
ment afforded ample constitutional justification for the bill. Id. at 
941-942.

83 Id. at 943.
84 J. M cP herson, the Struggle for E quality 347-349 (1964)).



34

has ever provided for the white race. In fact, the 
distinction of race and color is by the bill made to 
operate in favor of the colored and against the white 
race.” 85 86

He objected in particular that the automatic citizenship 
conferred upon blacks entailed “discrimination against 
large numbers of intelligent, worthy, and patriotic for
eigners” who were still required to meet the statutory 
standards for naturalization86 and that the bill required 
federal courts, “which sit only in one place for white 
citizens” , to move to any part of their district at the direc
tion of the President “to hear civil rights cases.” 87 On 
April 9,1866, Congress passed the Civil Rights Bill over the 
President’s veto.88 * *

Emboldened by the success of the Civil Rights bill, Con
gress decided to try again to enact a Freedmen’s Bureau 
bill, and on May 22, 1866, a new bill, II.R. 613, was reported 
by the House Committee on Freedmen.83 The new bill 
eliminated two provisions which had provoked the most 
criticism of S.60: the Bureau was extended for only two 
years, rather than indefinitely, and no express provision 
was made for appointment of agents for every county.30 
In addition, the reservation of a million or more acres of

85 V III Messages and P apers op the P residents, op. cit., 3610- 
3611.

86 Id. at 3604-3605.
87 Id. at 3610.
88 Act of April 9, 1866, 14 Stat., c. 31, 27. The provisions of the

1866 Civil Rights Act are now incorporated in 42 U.S.C. §§ 1981
and 1982.

85 Globe 2743. The Senate bill was reported out of committee on
June 11, 1866. Id. at 3071.

30 Mr. Eliot explained these modifications on the floor of the
house. Id. at 2772-2773.

35

federal public lands for refugees and freedmen was deleted 
as unnecessary because of the adoption of the Southern 
Homestead Act,91 * * * * 67 which opened up federal lands in five 
southern States for settlement.

The new bill, however, distinguished between freedmen 
and refugees in a number of ways not found in the vetoed 
proposal. While section one of S. JO had extended the old 
statute to “ refugees and freedmen in all parts of the United 
States,” section 1 of the new bill extended it to

“ all loyal refugees and freedmen, so far as the same 
shall be necessary to enable them as speedily as prac
ticable to become self-supporting citizens of the United 
States, and to aid them in making the freedom con
ferred by proclamation of the commander-in-chief, by 
emancipation under the laws of States, and by con
stitutional amendment, available to them and beneficial 
to the Republic.” 91a

Although the word “ refugees” was included in this section 
of II.R. 613, the purposes of effectuating the recently con
ferred “ freedom” applied only to blacks. Section 6 of S. 60 
had authorized the erection of schools “ for refugees and

31 C. 127, 14 Stat. 66 (1866). Freedmen enjoyed an indirect 
though significant priority under the Act over most whites. For 
six months after the bill went into effect the public lands were not 
available to any person who had “borne arms against the United 
States, or given aid and comfort to its enemies.” 14 Stat., c. 127 at
67 (1866). This prohibition excluded a large proportion of south
ern whites. “ Oliver Howard urged his assistant commissioners to 
take immediate advantage of this restrictive proviso, to present in
formation about the opportunity it offered ‘in the strongest man
ner’ , and to make every effort to secure homes for the Negroes 
before the ‘rebels’ could take up the lands. ‘I)o all you can,’ he 
emphasized.” G. Bentley, A H istory op the F reedmen’s B u
reau, 134 (1955) (emphasis in original).

3,“ 14 Stat., c. 200 at 174 (1866).



3G

freedmen dependent on the Government for support” ; un
der II.R. 613, however, educational programs were limited 
to blacks. Section 12 of II.R. 613 authorized the use of 
land, buildings or the proceeds derived therefrom for “ the 
education of the freed people” , and section 13 directed co
operation with and assistance to “private benevolent as
sociations of citizens in and of freedmen . . . for purposes 
of education.” 92 While the general lands provision of S.60 
was deleted, II.R. 613 had six sections protecting blacks 
who had occupied certain specified abandoned lands,93 and 
Congressman Eliot contemplated that the Bureau would 
use the provisions of the Southern Homestead Act “ to pro
vide for the freedmen,” 94 as indeed occurred.52 * * * 56 96 In sum, 
though slightly weakened in other respects, the new bill 
expressly provided special protection and aid for blacks 
alone in a manner unknown to the vetoed bill or the 1865 
Freedmen’s Bureau Act.

Since the provisions of S. 60 had been exhaustively dis
cussed earlier in the year, the debates on II.R. 613 were 
brief. The objection to the measure as a form of special 
treatment for blacks, a description particularly accurate 
as to II.R. 613, was renewed. Congressman LeBlond urged 
that it was

5214 Stat., c. 200 at 176 (1866). Congressman Eliot noted that 
the broader provisions of S.60 had been objected to on the ground
“ that the United States ought not to educate,”  but urged “ fi]t is 
perfectly plain that education cannot be secured to these freedmen” 
without federal assistance. Globe 2773.

3314 Stat., e. 200 at 174-76 (1866).
91 Globe 2773.
56 See p. 32, supra, n. 90. Sections 7 and 8 of the old bill which 

had protected “ negroes, mulattoes, freedmen [and] refugees” from 
discrimination in the administration of civil and criminal law, were 
redrawn to prohibit only discrimination on the basis of “ race or 
color, or previous condition of slavery.” 14 Stat., c. 200 at 176-77 
(1866).

37

“ the duty of this Congress to strike down that system 
at once, leaving these colored people, free as they are, 
to make a living in the same way that the poor whites 
of our country are doing. . . . [T]he period has gone 
by when the American people, taxed as they are almost 
to the death for the purpose of supporting this Gov
ernment, are going to contribute any longer to the 
maintenance of this class of persons.” 96

He objected in particular to the provision of II.R. 61o au
thorizing the Secretary of War “ to issue such medical 
stores or other supplies and transportation, and aiford 
such medical or other aid” as might be needed to carry 
out the purposes of section 2 of the 1865 Act, i.c. for the 
assistance of “destitute and suffering refugees and freed
men” : 97 98

“It is true it only purports upon its face to confer the 
power to furnish medical aid; yet the power is there 
given not only to feed but to clothe the colored people 
who have been slaves. That of itself is objectionable. 
It, is class legislation; it is doing for that class of 
persons what you do not propose to do for the widows 
and orphans throughout the length and breadth of 
this whole country.” 93

86 Globe 2780.
3713 Stat. c. 90, 508 (1865) ; 14 Stat, c. 200 at 174 (1866).
98 With reference to the lands provisions of II. R. 613 lie argued, 

“ We owe something to these freedmen, and this bill rightly ad
ministered, invaluable as it will be, will not balance the ac
count. We have done nothing to them, as a race, but injury. 
They, as a people, have done nothing to us but good . . . .  
We reduced the fathers to slavery, and the sons have periled 
life to keep us free. That is the way history will state the case. 
Now, then, we have struck off their chains. Shall we not help 
them to find homes? They have not had homes yet.”

Globe 2780. Additional constitutional authority, he urged, could



38

Again, Congressman Eliot, in support of the bill, urged 
that such special treatment was entirely proper.39 II.R. 613 
passed the House on May 29,1866, and the Senate approved 
a similar draft on June 26. The Conference Report on the 
bill was adopted by both houses on July 2 and 3, 1866.* 100 101

President Johnson again vetoed the bill, arguing that it 
fell “within the reasons assigned” in his veto message 
concerning S. 60.301 After urging that any special problems 
of blacks had already been resolved, he particularly criti
cized the lands sections providing property only

“ to a particular class of citizens. While the quieting of 
titles is deemed very important and desirable, the dis
crimination made in the bill seems objectionable. . . . ” 102

The new veto message closed with an emphasis on the un
desirability of such special treatment for any “ favored 
class of citizens” : “ In conclusion I again urge upon Con- 
cress the danger of class legislation, so well calculated to 
keep the public mind in a state of uncertain expectation, 
disquiet, and restlessness.” 103

The bill was returned by President Johnson to Congress 
on July 16, 1866, and voted on by both houses the same day. 
Senator Saulsbury, who had opposed legislation for freed-

be found in section 2 of the Thirteenth Amendment, which he rend 
as giving power to adopt such legislation as it shall deem to be 
appropriate to make fairly effective the great grant of freedom.” 
Id. at 2779.

35 Id. at 2773.
100 Id. at 2878, 3413, 3524, 35G2.
101 V III M essages and P apers op t iie  P residents, op. cit. 3G20.

103 Id. at 3623.
103 Ilid.

39

men since the first proposals in 1864, once again objected 
to the bill’s preferential treatment for blacks.

“What is the principle involved! No less a principle 
than this: has the Congress of the United States the 
power to take under its charge a portion of the people, 
discriminating against all others, and put their hand 
in the public Treasury, take the public money, appro
priate it to the support of this particular class of in
dividuals, and tax all the rest of the people of the 
country for the support of this class! . . .
Not only are the negroes of the South set free, by 
which the object and the aim of all abolitionists in the 
land was accomplished as we supposed, but a bill is 
passed by Congress conferring upon them all civil 
rights enjoyed by white citizens of the eountiy, and 
they are now selected out from among the people of 
the United States, the public Treasury put at their 
disposal, and the white people of the country taxed for 
their support. Lands to which you claim title . . . you 
take and given to the negroes in South Carolina. You 
give those lnnds to no white person. . . •
I never believed that Congress had any right to estab
lish any such bureau to take under its charge any 
particular portion of the people of the United States 
and to provide for them out of the public Treasury or 
out of the public lands.” 104

Congress, which had consistently rejected such arguments, 
did so again.

The House voted 104 to 33 to override the veto, and the 
Senate voted the bill into law by a margin of 33 to 12.106

104 Glode 3840-3841.
los J(i  ilt 3842, 3850. The 1866 Frcedinen’s Bureau Act is codi

fied as Act of July 16, 186G, c. 200, 14 Stat. 173-177.



40

(4) Freedmen’s Bureau Legislation, 1868-14570

Although General Howard had believed the Freedmen’s 
Bureau should he allowed to expire in July, 1868, as the 
1866 Act provided,106 he discovered that the consequence 
of withdrawing Bureau agents from the Southern States 
was:

“ to close up the schools; to intimidate Union men and 
colored people, and, in fact, to paralyze almost com
pletely the work of education which, until then, was in 
a healthful condition and prospering.” 107

Accordingly, Howard wrote to Congress on February 8, 
1868, recommending continuation of the Bureau for an
other year.108

Congressman Eliot introduced such legislation to extend 
the Bureau, emphasizing the importance of its educational 
work:

“ [I ]f  the protecting care of the General Government, 
feared by those whose hearts are rebel as their hands 
were hostile during the war, should he removed, there 
is no doubt at all that schools would be abolished and 
a war upon the freedmen begun. There are now two 
hundred and thirty-eight thousand three hundred and 
forty-two scholars receiving instruction in these 
schools. The teachers are chiefly supplied and paid

106 In his report of December, 1867, General Howard noted that,: 
while other Bureau activities had generally declined since its crea
tion, the operation of schools for freedmen had continued to ex
pand. For the year ending September 1, 1867, educational activi
ties accounted for $208,445 of the Bureau’s $284,117 in expendi
tures. R eport op the Commissioner of tiie B ureau op R efugees, 
F reedmen and A bandoned L ands 36 (1867).

107 Cong. Globe, 40th Cong., 2d Scss., 1S17 (1868).

109 Ibid.

41

by northern and western benevolent associations. The 
school houses are mainly built from private funds of 
freedmen and contributions from loyal men. School- 
houses are in some places rented and everywhere pro
tected by the Government and it is this protection 
which is needed, and without which they cannot be 
continued.” 109

This extension of the Bureau was opposed on the grounds 
urged in past years. Congressman Adams objected to 
legislation “ to feed, clothe, e'ducate and support one class 
of people to the exclusion of all others equally as destitute 
and much more deserving” .110 Congressman Wood objected 
to taxing white men for the aid of blacks.111 Senator 
Hendricks attacked the Bureau for placing freedmen “ in 
supremacy and in power over the white race” .112 Congress 
again rejected these arguments by a decisive margin,113 * * 
and in June, 1868, renewed the Bureau for another year.116 
In July of 1868, without significant additional debate, 
Congress passed over the President’s veto,116 a new statute 
continuing indefinitely “ the educational department of said 
Bureau and payment of moneys due the soldiers, sailors, 
and marines,” and terminating other Bureau functions as

103 Id. at 1816.
110 Id. at App. 292.
111 Id. at 1994.
112 Id. at 3054.
113 The House vote was 97 to 38. Id. at 1998. The Senate vote 

was not recorded. Id. at 3058.
111 The law is set out at 15 Stat. 83, c.135 (1868). The bill be

came law without the President’s signature. Id. at 84.
116 The veto was based on limitations placed by the new statute 

on the President’s authority to appoint Bureau personnel. G. 
B entley, A H istory of the F reedmen’s B ureau 202 (1955).



42

of January 1, 1869.116 Congressional appropriations for 
freedmen’s hospitals in Washington, D. C. and elsewhere 
continued for many years, thereafter.117

116 Cong. Globe, 41st Cong., 1st Sess., 193-194 (1870).
117 Except for a single appropriation in 1866, the Bureau had 

been largely self-supporting, paying for its education and other 
programs in part with funds received from the rental of abandoned 
property and other activities. With the termination of all but the 
education and colored servicemen programs, however, these sources 
of income were lost, and after continuing on cash reserves for two 
years the Bureau ran out of funds in the spring of 1870. This de
velopment forced Congress to consider whether or not to follow 
General Howard’s recommendation that federal assistance to or 
operation of local educational facilities be continued and funded on 
a permanent basis. In March of 1870, Congressman Arnell intro
duced legislation to create an Office of Education “ to exercise the 
same powers of those hitherto exercised by the Freedmen’s Bureau 
in its educational division.” Id. at 2295. The measure passed the 
House by a vote of 104-55 on April 5, 1870, id. at 2430, but never 
reached a vote in the Senate, and thus died. Id. at 5286, 5287. 
While the basis of Senate opposition cannot be determined, since 
the bill was never debated, the primary objection to the measure in 
the House was that providing for education was a matter for the 
states. Congressman McNeely argued that all the Southern States 
had or would make “suitable provision by their constitutions for 
the education of the children of freedmen,” and if they failed to 
do so Congress could as easily intervene then as now. Id. at 2317. 
He therefore urged Congress:

“ to end this Federal interference in educational affairs and 
leave their exclusive regulation to the States and the people 
directly interested. What would suit one State might not suit 
another, and that system of teaching or character or qualifica
tion of teachers, or kind of school books, or set of rules for 
school discipline, which might suit the people of one county or 
school district might not suit another.”

Id. at 2319. Congressman Lawrence argued that:
“ this bill opens up a subject vastly more important than many 
members of this House have as yet supposed. It presents the 
question whether we shall embark in the general business of 
taking charge of the educational interests of the States. For 
if we may in this way provide the means of education in the 
States of this Union, we may do it to the exclusion of the com
mon schools already existing in the States; and we may sub-

43

(5) 1867 Relief Legislation

In March, 1867, Congress adopted 1 '.vo statutes providing 
food and other aid to the poor whose contrasting provi
sions and legislative histories indicate the care with which 
Congress designated by race the intended recipients.

The first measure, which became law on March 16, 1867, 
appropriated funds “ for the rehof of freedmen or destitute 
colored people in the District of Columbia, the same to be 
expended under the direction of the commissioner of the 
bureau of freedmen and refugees.” 118 119 Senator Morrill 
urged “ the necessities of this class of people in the district 
commend themselves very strongly to [the Senate’s] sense 
of humanity and charity.” 113 Congressman Holman argued 
for its adoption on the ground “ that great destitution 
exists among the colored population here, and that an 
appropriation of this kind is imperatively demanded by 
considerations of common humanity.” 120

Two weeks later, Congress enacted “ a Resolution for 
the Relief of the Destitute in the Southern and South
western States.” This measure, growing out of crop fail
ure and resulting famine, authorized the Secretary of 
War, “ through the commission of the freedmen’s bureau,” 
to provide from funds previously allocated to the Bureau 
“ supplies of food sufficient to prevent starvation and

vert the educational systems which have been established in 
every State of this Union.”

Id. at 2320. The arguments of past years regarding special aid 
to freedmen were not, however, raised again. With the defeat of 
the Arnell bill the educational activities of the Bureau came to an 
end as did most of the freedmen’s schools. The Bureau itself, 
moribund except for the payment of colored servicemen s claims, 
was finally abolished in 1872.

118 15 Stat. lies. 4, 20 (1867).
119 Cong. Globe, 40th Cong., 1st Sess., 28 (1867).

120 Id. at 76.



44

extreme want to any and all classes of destitute or help
less persons.” 121 The decision to give indigent whites equal 
access to Bureau food supplies originally intended for 
freedmen was a matter of great controversy. Congress
man Butler objected to this plan to aid “ the white men 
at the expense of freedmen.” He asked, rhetorically, for 
whom they were asked to encroach “upon the provision 
made for the freedmen,” and concluded that the food 
would go to “ [n]ot merely the women and children, not 
merely the sick and disabled, but the able bodied rebel 
who, lounging at the corner grocery, refuses to work,” 
while the “mudsills of the North are obliged to work 
in order that they may pay taxes for the support of the 
Government.” 122 Others renewed their criticism of the 
general exclusion of whites from the Bureau’s aid pro
grams,123 and urged that the statute be modified to include 
whites for other purposes.12*

12115 Stat. Res. 28, 28 (1867).

122 Cong. Globe, 40th Cong., 1st Sess., 257 (1867); see also id. at 
83-84.

123 Id. at 85 (remarks of Rep. Chanler).

124 Id. at 237 (remarks of Rep. Pile). Such modifications were 
not enacted. The sense of Congress was expressed by Ohio Con
gressman John A. Bingham, the author of the Fourteenth Amend
ment, who saw no objection to the general limitation in the Freed- 
men’s Bureau Act for which he had voted in 1866, id. at 235-236, 
but urged that no such distinction should be made in a case of 
actual starvation:

“ [T]he war’s dread alarm has ended, as happily as it had with 
us, when the broken battalions of rebellion have surrendered 
to the victorious legions of the Republic, let no man stand 
within the forum of the people and utter the horrid blasphemy 
that you shall not have regard for the famishing poor. Do not 
then, I pray you, ask that this Government shall degrade itself 
in the presence of the civilized world by refusing supplies to 
its own citizens who are famishing for bread, and stop to in
quire of the starving thousands whether they were friends or 
enemies. Sir, you cannot discriminate, if  you would, between 
friends and enemies when famishing men ask for bread.”

Id. at 90.

45

(6) The Colore. 1 Servicemen’s Claim Act

During the war special bounties and other payments 
were authorized for soldiers who enlisted in the Union 
forces, the funds, at least in part, only payable at the 
conclusion of hoitilities or completion of the period of 
enlistment. In the following years unscrupulous claim 
agents, offering to represent black servicemen in obtain
ing such sums, pensions, or back pay due to them, took 
unfair advantage of their often uneducated and unsophis
ticated clients and pocketed unwarranted portions of the 
funds ultimately obtained. To protect the black soldiers, 
Congress in 18GG established a schedule of maximum fees 
payable to agents or attorneys handling such claims for 
colored soldiers.125 This measure having proved inade
quate, Senator Wilson proposed in 18G7 that all claims 
of black servicemen from Southern states handled by 
agents or attorneys be paid to the Commissioner of the 
Freedmen’s Bureau, who was to pay to each claimant 
and agent or attorney the sum authorized by law.126

This proposal, like other legislation pertaining to the 
Freedmen’s Bureau, was opposed as a form of discrim
inatory legislation. Senator Grimes urged that he had 
long maintained that such:

“ class legislation was a great error, that it was wrong, 
that it was wicked; that we should not single out one 
class and say that the nation should take the guard
ianship of that class to the exclusion of another class; 
that we should not single out one class and confer 
upon them a consequence which we would not confer

12B14 Stat. Res. 86 .at 368 (1866).
126 The Bureau had, since July, 1865, been attempting to pro

tect colored servicemen from such abuses by assisting them, without 
charge, to collect money owed them. G. Bentley, A  History of 
the Freedmen’s Bureau 87 (1955).



46

upon another class. I had thought and hoped that 
that time had gone by; that we were successful; that 
we had triumphed in this regard; and that we were 
to see and hear no more of class legislation. But 
what is this proposition but placing, by an act of 
Congress, the business affairs of all the colored men 
who have been in the Army and Navy and Marine 
Corps of the United States under the guardianship 
of the Government. . . . ” 127

Senator Henderson objected

“ My impression is that the negroes understand their 
rights as well as anybody; and I protest against the 
idea that we must bo eternally legislating for the 
negro in order to protect his interest and regarding 
him as a ward of the Government. All we need do 
is confer upon him the rights, civil and political, that 
we confer upon other men, and then I guaranty that 
the negro will take care of himself; and so far as his 
money rights are concerned he will look out for them 
with the same diligence and the same care that white 
men do.” 128 * * * *

127 Cong. Globe, 40th Cong., 1st Sess., 79 (1867).
128 Id. at 80; see also id. at 444 (remarks of Rep. Chanter).

Congressman Holman could see so basis for treating blacks less
than self-sufficient in financial matters if Congress believed them 
qualified to vote:

“ If, as you assert, the colored man is competent to control the 
affairs of the nation, I insist that all public laws and regula
tions which are made applicable to any class of our citizens 
who participate in controlling public affairs should be alike 
applicable to all who are invested with that high right; and 
that all our laws should be sufficiently effective in their pro
vision to protect all men in their just rights of property.”

Id. at 445.

47

Senator Howe thought the bill covered too many blacks, 
since it did not “ discriminate at all between . . . those who 
are educated and those who are not.” 128

Proponents of the legislation based their arguments on 
the special needs of black servicemen.120 Congressman 
Scofield argued that conditions requiring special treatment 
for colored servicemen were the result of past disciim- 
ination.

“ The object of [the bill] is to protect the  ̂ colored 
soldiers against the fraudulent devices by which their 
small bounties are taken away from them. We have 
passed bills for the protection of white soldiers, not 
exactly like this, but having the same end in view, 
for the protection of men who from infancy have had 
the benefit of our common schools, and have acquired

129 Id. at 81.
780 Congressman Garfield responded to Congressman Holman’s 

argument, see note 128 supra:
“ I perfectly agree with the gentleman that we ought to have 

general rules operating uniformly upon all classes of eases that 
are similar; but I call his attention and the attention of the 
House to the marked difference between the condition of the 
soldiers and sailors from the States lately in rebellion— the 
colored soldiers and sailors—and the position of other soldiers 
and sailors. Our soldiers and sailors, enlisted from northern 
States came from States . . . that had their military State 
agents here at Washington to take care of the interests ot their 
soldiers. These soldiers from the South had no such protection 
or care. Their State authorities were hostile to them.

Id. at 445. Senator Wilson contended for the bill on this basis;
colored servicemen, he urged,

“ have scattered about; there is nobody to watch for or take care 
of them; and there are a great many agents who are plunder
ing them and getting all they can out of them . . . .  This 
proposition is made for no other purpose on earth than to 
provide the necessary precautions so that the money paid by 
the Government shall go into the hands of those to whom the 
Government intends to pay it.”

Id. at 79.



48

all that sharpness and self-reliance that come from 
the rough and tumble of American life. . . .  I say we 
have passed laws for the protection of white soldiers, 
but not going quite as far as this, because, unlike the 
blacks, they have not been excluded from our schools 
by legal prohibition, nor have they all their lives been 
placed in a dependent position. I know the colored 
people are ignorant, but it is not their own fault, it 
is ours. We have passed laws that made it a crime 
for them to he taught and now, because they have not 
the learning that the white man has, gentlemen say 
we must not pass laws to protect them against plunder 
by the sharks that hang around the bounty offices.” 131

Congress found these arguments for special treatment per
suasive, and passed the hill by a substantial margin.132

B. The Adoption of the Fourteenth Amendment

The Fouiteenth Amendment was fashioned and approved 
by the same Congress that deliberately enacted race-con
scious remedies for the exclusive or primary benefit of 
blacks. This is hardly coincidental, for one of the chief 
purposes of the Fourteenth Amendment was to consti
tutionalize the remedies which the Thirty-Ninth Congress 
had already adopted.133 134

131 Id. at 444.

132 Id. at 294, 445. The House vote was G2 to 24; the Senate vote 
Va0s “ ot recorded. The statute is set out at 15 Stat. 26, Res. 25 
( m , '  ‘In five years the Bureau paid to Freedmen from Boston 
to Galveston over seven and a half million dollars.” G. Bentley 
A  H istory op the Freedman’s Bureau 148 (1955).

3 See. II. Flack, The Adoption of the Fourteenth A mend
ment 11 (1908) :

the legislation preceding the adoption of the Amendment will 
piobably give an index to the objects Congress was striving 
to obtain or to the evils for which a remedy was being sought

49

“The one point upon which historians of the Four
teenth Amendment agree, and, indeed which the 
evidence places beyond cavil, is that the Fourteenth 
Amendment was designed to place the constitutionality 
of the Freedmen’s Bureau and civil rights bills . . . 
beyond doubt. . . . [T]he new amendment was written 
and passed, at the very least, to make certain that 
that statutory plan was constitutional, to remove 
doubts about the adequacy of the Thirteenth Amend
ment to sustain it, and to place its substantive provi
sions in the Constitution.” 131

When President Johnson vetoed on February 19, 18(16 
the first Freedmen’s Bureau Bill of 1866, he had questioned 
whether the measure was “warranted by the Constitution” 
and challenged in particular the authority of Congress to 
spend funds, at least outside the District of Columbia, for 
the assistance of any class of the needy. In that month, 
Congress was already debating an early draft of the Four
teenth Amendment, H.R. 63, which gave Congress the au
thority similar to that now contained in Section 5.135 * On 
February 28, 1866, nine days after the veto, Congressman 
Woodbridge, after reciting the need for federal aid to 
destitute freedmen, argued:

. . . .  This legislation, together with the debates in Congress, 
while being considered by that body, as well as the debates on 
the Amendment itself, should afford . . . sufficient material 
and facts on which to base a fairly accurate estimate of what 
Congress intended to accomplish by the Amendment.”

134 J. tenBroek, Equal Under Law 201, 203 (1965).
135 The Amendment then before the House provided, “ The Con

gress shall have power to make all laws which shall be necessary 
and proper to secure to the citizens of each State all privileges and 
immunities of citizens in the several States, and to all persons in 
the several States equal protection in the rights of life, liberty, and
property.”  H.R. 63, 39th Cong., 1st Sess. (1866) Globe 1034.



50

“Cut it may be said that all this may be done by legisla
tion. I am rather inclined to think that most of it may 
be so accomplished. But the experience of this Con
gress in that regard has been most unfortunate. Sir, 
I cast no imputation upon the President of the United 
States . . . .  But inasmuch as the President, honestly, 
I have no doubt, has told us that there were constitu
tional difficulties in the way, I simply suggest that we 
submit the proposition to the people, that they may 
remove these objections bv amending the instrument 
itself.” 137 138

Later in the debate on the same day Congressman Bing
ham, the sponsor of H.R. 63, placed in the record a news
paper article describing the “rejoicing of the people of the 
South” at news “ that the President had vetoed the Freed- 
men’s Bureau bill.” When opponents objected to the rele
vance of this article, the Speaker ruled it was pertinent 
since related to the purpose and effect of the proposed 
Amendment:

“This constitutional amendment proposes to give Con
gress ‘power to make all laws which shall be necessary 
and proper to secure to the citizens of each State all 
privileges and immunities of citizens in the several 
States and to all persons in the several States equal 
protection in the rights of life, liberty, and property.’ 
And if the Chair is correctly informed by the remarks 
of the gentleman from Ohio as to what this extract is, 
it relates to the veto by the President of a bill passed 
by Congress in regard to the rights of certain persons, 
and if that is the case, it may be within the province 
of Congress to pass a constitutional amendment to 
secure those rights and the rights of others generally,

•v » r - r  * r x*i-«rr?:

136 Id. at 1088.

51

and therefore, as a part of the remarks of the gentle
man from Ohio, this is certainly in order.” 137

The Freedmen’s Bureau Act of 1866, the Reconstruction 
measure which probably contained the most race-specific 
remedial legislation, was considered simultaneously in Con
gress with the Fourteenth Amendment. The House passed 
the Amendment on May 10, 1866, the Senate voted a modi
fied version on June 8, 1866, and the House acquiesced in 
the Senate changes on June 13.138 The House approved the 
second Freedmen’s Bureau Act on May 29, 1866, the 
Senate voted a modified version on June 26, 1866,139 and 
the Conference Report was adopted on July 2 and 3, 1866. 
On several occasions the Act was debated in one House at 
the same time the Amendment was being debated in the 
other.140

Moreover, the same legislators who comprised the two- 
thirds majority necessary to override President Johnson’s 
second veto of the Freedmen’s Bureau Act of 1866 also 
composed the two-thirds majority who approved the Four
teenth Amendment.141 * The sponsors of the Amendment, 
Congressman Stevens and Senator Wade, as well as its 
apparent author, Congressman Bingham, all voted for the 
Freedmen’s Bureau Act. The sponsors of the Act, Senator 
Trumbull and Congressman Fdiot, voted for the Amend

137 Id. at 1092.
138 Id. at 2545, 3042, 3149.
139 Id. at 2773, 3413, 3524, 3562.
140 See, e.g., at 2799, 2807, 2869, 2977.
141 Of the 33 Senators and 104 Representatives who voted to

override President Johnson’s second veto of the Freednien’s Bureau 
Act, all who were present for the vote on the Fourteenth Amend
ment voted for it. Of the 33 Senators and 120 Representatives who 
voted for the Amendment, all but 4 representatives who were 
present for the vote or the veto voted to override it. Id at 3042 
3149, 3842, 3850.



52

ment; Eliot spoke at length in support of the Amend
ment,143 and Trumbull wrote and sponsored the 18G6 Civil 
Eights Act whose substantive provisions were the basis of 
section 1 of the Amendment.143

Congressman Stevens, introducing the Fourteenth 
Amendment to the House, described its basic purpose as 
providing for “ the amelioration of the condition of the 
freedmen.” 144 * These are exactly the same words which 
Congressman Moulton used only three months earlier to 
describe the object of the first Freedmen’s Bureau bill of 
1866.146 This identity of phrasing reflects the similarity of 
purpose underlying the two measures. The supporters of 
the Act and Amendment regarded them as both consistent 
and complementary, while opponents viewed the two, to
gether with the Civil Eights Act of 1866, as part of a single 
coherent, though in their view, undesirable, policy.143 No 
member of Congress intimated he saw any inconsistency 
between the provisions of the Act and the Amendment; or 
between the Thirteenth Amendment, which advocates of the 
bill contended provided authority to establish and continue 
the Bureau, and the Fourteenth Amendment. During the 
debates on the Amendment, opponents frequently went out 
of their way to criticize the Freedmen’s Bureau,147 while 
supporters of the Amendment praised the Bureau.148

143 See, e.g., id. at 2511-12.
143 See Flack, op. cit., at 55-97.
144 Globe 2459.
146 Id. at 632.
148 Id. at 2501 (remarks of Rep. Shanklin); 2537-8 (remarks of 

Rep. Rogers); 2941 (remarks of Sen. Hendricks); App 239-40 
(remarks of Sen. Davis).

GL°o.E a,t ,2472 (remarks of ReP- W. B lack ); 2501 (remarks of Rep. Shanklin).
148 Id. at 1092 (remarks of Rep. Bingham); 3034-35 (remarks of 

Sen. Henderson).

53

The Thirty-Ninth Congress, which was fully aware of 
the race-conscious remedies and limitations contained in 
the Freedmen’s Bureau Acts it had passed in February and 
July of 1866, cannot conceivably have intended by its ap
proval of the Fourteenth Amendment on June 12, 1866, to 
have invalidated or forbidden such remedies. The debates 
in that Congress have an uncannily modern reverberation: 
the opposition to the Freedmen’s Bureau Acts and other 
race specific remedies was expressed in much the same 
terms as contemporai'y argument against such measures as 
petitioner’s special admission program. Moreover, the 
post-Civil War remedies cannot be distinguished from peti
tioner’s program on the ground that they provided general 
services to a particular racial group without denying ser
vices to another racial group, since the services provided 
to freedmen were not at the time available to whites in the 
affected areas and were usually not authorized to be pro
vided to them by the legislation aimed at the freedmen. 
As the debates just reviewed indicate, the “ scarcity of re
sources” argument was frequently voiced by opponents of 
the Eeconstruction measures—the freedmen’s legislation 
was undesirable and unconstitutional, it was contended, 
because affording programs to blacks meant denying such 
programs to whites. These opponents—and respondent— 
have contended that abstract principles of equality and 
racial justice preclude special assistance for racial groups 
whose members have for generations suffered invidious 
discrimination, although the lack of remedial treatment is 
likely to perpetuate the exclusion of these groups from 
important areas of American life. This social theory was 
repeatedly and overwhelmingly rejected over a hundred 
years ago, and insofar as respondent’s arguments in this 
case assume the Fourteenth Amendment is founded upon 
such a theory, these arguments do not withstand analysis.



54

C. Discrimination in Medical Education During the 
Last Century

The most significant achievement of the Freedmen’s Bu
reau was in the area of education,148 although the progress

148 General Howard had contended that “ the most urgent want 
of freedmen was a practical education; and from the first I have 
devoted more attention [to that] than to any other branch of my 
work.” II 0 . Howard, Autobiography 368 (1907). See also G. 
Bentley, A History op the Freedmen’s Bureau 63, 169, 257 n. 
101 (1955). In most years, more than two-thirds of all funds spent 
by the Bureau were used for the education of freedmen. Commis
sioner op Bureau of Refugees, Freedmen, and A bandoned 
Lands Report 12 (1866); id. at 33, 36 (1876); id. at 7 (1868); 
id. at 21 (1869) ; id. at 14 (1870). Over three million dollars was 
spent on freedmen’s schools from 1868 to 1870. W. DuBois, Black 
Reconstruction 648 (1935). The Bureau provided funds, land, 
or other assistance for the establishment of more than a dozen col
leges and universities for the education of black students. Howard, 
supra, at 390-422; Bureau op Refugees, Freedmen and Aban
doned Lands, Sixth Semi-Annual Report on Schools for Freed
men, 60-63 (July 1, 1868); Eighth Semi-Annual Report on 
Schools for Freedmen, 75-80 (July 1, 1869); Ninth Semi- 
A nnual Report on Schools for Freedmen, 61-63 (January 1, 
1870). Provision was also made for normal schools to educate black 
teachers. Only one institute of higher education for white refugees, 
the Lookout Mountain Educational Institute, was ever assisted by 
the Bureau. Bentley, supra, at 255 n.43. In 1867, following the 
incorporation of Howard University, the Bureau provided it with 
the down payment for the property on which the University is lo
cated and then constructed for it buildings at a cost of half a mil
lion dollars. Howard, supra, at 398-401. Underlying the decision 
to establish and assist the University and to establish graduate and 
professional schools there, was General Howard’s view that, follow
ing the Civil War, “Negro pharmacists and other medical men were 
soon required, and contentions with white men in courts demanded 
friendly advocates at law.” Id. at 394. Howard was open to whites, 
Logan, Howard University: The F irst Hundred Years, 1867- 
1967, 34 (1969), but the Bureau required as a condition of its aid 
that the University make “special provision for freedmen.” Bureau 
of Refugees, Freedmen, and Abandoned Lands, Sixth Semi-An
nual Report on Schools for Freedmen 60 (July 1, 1868).

In 1870 General Howard’s conduct of the Bureau was investi
gated by the House Committee on Education and Labor, following 
charges of misconduct made by Congressman Fernando Wood. The 
first of the fifteen specific accusations considered was that the

55

made was limited, and although many of the educational 
institutions were abandoned or abolished after other Bu
reau programs were terminated in 1869 and after federal 
aid to freedmen’s education was ended in 1870. Congress 
apparently believed that such education should be left to 
the States, but the Hayes-Tilden compromise after the 
election of 1876 and the end of military reconstruction 
ushered in an era which was marked by vicious racism :,6° 
the neglect of black educational problems by the federal * 174

Bureau’s aid to Howard University was “ without authority of law.” 
II.R. Rep. No. 121, 41st Cong., 2d Sess., 2 (1870). General How
ard defended that assistance, inter alia, by reference to this special 
provision, “ If it be claimed that the University charter does not call 
for the education of refugees and freedmen, or their children, the 
answer is, that its charter is not limited; that in the reception of 
all the funds derived from the government the University Corpora
tion formally accepted the conditions expressed in the order of 
transfer and in the contracts for building. The deeds of transfer 
of the buildings also expressly demand and secure the fulfillment 
of this important condition.” Statement of Br. Maj. Gen. O.O. 
Howard Before the Committee on Educational Labor in Defense 
Against tbe Charges Presented by Hon. Fernando Wood, id. at 
517. The committee found persuasive Howard’s explanation of 
this and other disputed conduct, and exonerated him. H.R. Rep. 
No. 121, 41st Cong., 2d Sess. (1870). On March 2, 1871, the House 
adopted a resolution from the Committee formally acquitting 
Howard of the charges and praising his administration of the Bu
reau. Cong. Globe 41st Cong., 3d Sess., p.1850-51 (1871).

Approximately 100,000 students were educated each year during 
the existence of the Bureau’s schools, with enrollment limited al
most exclusively to blacks. General Howard “ refused to spend 
Bureau money on [school] buildings unless they were on sites 
secured by deed for Negro education forever.” Bentley, supra, at
174. Among black students, no distinctions were made according 
to degree of past disadvantage. During this period, comparable 
free public education was not generally available in the South. 
R. Henry, The Story of Reconstruction 129, 243 (1938); H. 
Carter, T iie A ngry Scar 57 (1959). A  Georgia editor complained 
in 1871 that “ [t]he colored people of Georgia are receiving more 
educational advantage than the poor whites.”  II W. F leming, 
Documentary History of Reconstruction 203 (1906).

168 See generally C. V an W oodward, The Stranoe Career of 
Jim Crow (3rd ed. 1974).

nwxm K’qrjnrT-ygWT’



56

and state governments, the forcible segregation of the 
black population, and the denial to that population of 
equivalent medical training and care.

In no area was this invidious discrimination more 
marked than in medical education and health facilities. 
We set forth this dreary history at length in Appendix A, 
infra, and only a few highlights need he recounted here. 
During the past century, medical education has been al
most entirely segregated, and 90% of the nation’s black 
physicians have been trained at the medical schools of 
Howard and Meharry Universities, institutions expressly 
created for blacks and financed with federal funds.161 As 
late as 1948, a third of the approved medical schools in 
this country (26 out of 79) had an official policy of deny
ing admission to black applicants solely on account of 
their race.162 * The effects of this invidious discrimination 
are reflected in the disproportionately small number of 
black doctors now practicing in this country. While there 
is one white doctor for every 477 whites, there is only one 
black doctor for every 2779 blacks,162 and a mere 2.2% 
of the nation’s physicians are black.164 Even when black 
medical students have gained admission to medical schools, 
their professional advancement and, indeed, their ability 
to treat the sick has often been impeded or actually

161 J. Blackwell, The Black Community 127-128 (1975). 
See also H. Morais, The H istory op the Negro in Medicine 93-94, 
134-138, 174 (1967); J. Curtis, Blacks, Medical Schools and 
Society 13-14 (1971).

162 Johnson, History of the Education of Negro Physicians, 42 J. 
Med. Educ. 439, 441 (1967).

165,U.S. Bureau op the Census, Statistical Austract op the 
United States, 1976, 25; C. Odegaard, Minorities in Medicine 
18 (1977) (population as of 1975).

164 Odegaard, id.

57

thwarted by racial discrimination in training programs, 
the use of hospital facilities, and in medical associations.

The attempt since 1969 to expand medical educational 
opportunities for blacks and other minority students166 and 
petitioner’s special admissions program reflect the recog
nition that the invidious discrimination which prompted 
federal legislation in the 1860’s continues to plague the 
nation and that programs such as those enacted by Con
gress in the Reconstruction Era are still needed a century 
later to alleviate the injuries suffered by blacks and other 
minorities in the health area.

III.

De Jure Segregation in California Public Education

Just as the court below considered the constitutionality 
of petitioner’s special admission program without regard 
to the history of the Fourteenth Amendment, so also did it 
ignore judicially notioeable materials which establish that 
this program is a remedial response to historical de jure 
educational segregation in California.166 This Court has

166 See Association op American Medical Colleges Task F orce 
to the Inter-Association Committee op Expanding Educational 
Opportunities in Medicine for Blacks and Other Minority 
Stupents (1970).

i6« “ There is no evidence in the record to indicate that the Uni
versity has discriminated against minority applicants in the past 

Neither party contended in the trial court that the Univer- 
sitv had practiced discrimination, and no evidence with regard to 
that question was admitted below.23 Thus, on the basis of the 
record before us, we must presume that the University has not en
gaged in past discriminatory conduct.” Bahke x. Regents of Uni
versity of California, supra, 553 P.2d at 1169. In note 29, the 
court conceded: “ Admittedly, neither the University nor Bakke 
would have an interest in raising such a claim [of de jure segrega
tion], But this fact alone would not justify us m making a finding 
on a factual matter not presented below.”



ruled that “ the differentiating factor between de jure seg
regation and so-called de facto segregation . . .  is purpose 
or intent to segregate,” Keyes v. School District No. 1, 413 
U.S. 189, 208 (1973) (emphasis in original), whether this 
latter element is manifested by legislative or administra
tive action. As we demonstrate in Appendix B, infra, 
California schools were segregated by statute until 1947, 
and since that time there have been a large number of judi
cial and administrative decisions, see, e.g.t Pasadena City 
Board of Education v. Spangler, 427 U.S. 424 (1970), find
ing “ racial discrimination through official action,”  Sivann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 
32 (1971). We also show in Appendix B that an over
whelming proportion of black children attend virtually all 
minority public schools in California, and most attend 
schools in districts that have been adjudicated in violation 
of federal and state law in the last decade. In the past ten 
years, the fact that minority groups “are underrepresented 
in our institutions of public higher education as compared 
to the proportion of these groups among recent California 
high school graduates,” (Assembly Concurrent Resolution 
No. 151 (1974)), due to the lingering effects of historical de 
jure segregation, has been frequently recognized by the 
California legislature, which has mandated petitioner and 
other State educational institutions to undertake “affirma
tive action” programs to eradicate the continuing problems 
of invidious discrimination.

We describe these judicial and legislative materials in 
detail in Appendix B, and we submit that they are sufficient 
to establish the existence of a condition of de jure segrega
tion in minority education in California167 * which justifies—

167 In Keyes v. School District No. 1, supra, 4] 3 U.S. at 197, the
Court noted a 1971 Report of the United States Commission on
Civil Rights “ ff Reusing on students in . . . California” and other 
Southwestern States which concluded:

:*..K 7.

59

if it does not mandate—a special medical school admission 
program such as petitioner’s.

IV.

Minority Health Problems and Petitioner’ s 
Special Admissions Program

Petitioner’s plan to increase the number of minority 
doctors is a rational response to the serious health prob
lems of minority communities. It is well established that 
blacks and other minorities have more illnesses and die 
younger than white Americans, but a review of mortality 
and disease statistics, which are set forth in detail in Ap
pendix C, shows that the problems are truly grave and 
justify a decisive and meaningful response by those who 
are responsible for medical care and medical education.

Measures of life expectancy,166 infant mortality,169 * ma
ternal deaths,160 fetal death rates,161 and deaths among 
young children162 show a horrendous gap between the 
health of black and white Americans. Blacks suffer from

“  ‘The basic finding of this report is that minority students in 
the Southwest—Mexican Americans, blacks, American Indians 
— do not obtain the benefits of public education at a rate equal 
to that of their Anglo classmates.’ ”

413 U.S. at 197 n.8 .
168 U.S. Bureau op the Census, Statistical Abstract of the 

United States, 1976, 60.
169 Id. at 64; A merican Public Health A ssociation, Minority 

Health Ciiartbook 36 (1974).
160 U.S. Bureau op the Census, Statistical A bstract op the 

United States, 1976, 64.
161 Id.
162 National Center for Health Statistics, Department op 

Health, Education and W elfare, Monthly V ital Statistics Re
port, Summary Report F inal Mortality Statistics, 1973, Table 3.



60

serious disease at a higher rate,163 and when blacks do get 
ill the incidence of death from disease far surpasses the 
white mortality rate for the same disease.164 165

Although morbidity and mortality rates among the black 
population are attributable in part to poor housing, nutri
tion, and other incidents of poverty, studies have estab
lished that illness and death among blacks is directly re
lated to lack of health care,166 and that with adequate 
facilities and doctors the high incidence of infant and ma
ternal death and illness is dramatically reduced.166 Yet 
although access to doctors directly correlates with im
proved health, minorities have fewer opportunities to re
ceive medical attention, and in fact visit doctors much less 
frequently that the white population.167

163B. Tunley, The American Health Scandal 40-41 (1966).
164 Darity, Crucial Health and Social Problems in the Black 

Community, Journal of Black Health Perspectives Table 13 at 
46 (June/July 1974).

165 puujjo Health Service, U.S. Department of Health, Edu
cation and W elfare, Selected V ital and Health Statistics in 
Poverty and Non-Poverty A reas of 19 Large Cities, United 
States, 1969-71 13; see Iba, Niswander & Woodville, Relation of 
Prenatal Care to Birth Weights, Major Malformations, and New
born Deaths of American Indians, 88 Health Services Reports 
697-701 (1973); Weiner & Milton, Demographic Correlates of Low 
Birth Weight, 91 A m. J. Epidemiol. 260-272 (Mar. 1970) ; D. Iyess- 
ner et al., Contrasts in Health Status, Volume I, Instant 
Death : A n A nalysis by Maternal Risk and Health Care 
(1973).

166 E.g., Maternal and Child Health Service, U.S. Depart
ment of Health, Education and Welfare, Promoting the 
Health of Mothers and Children, Fiscal Y ear, 1972, 6 ■ Hoeh- 
heister, et al., Effect of the Neighborhood Health Center on the 
TJse of the Pediatric Emergency Departments in Rochester, N.Y., 
285 New England Journ. of Med. (July, 1971).

167 R eissman, The Use of Health Services by the Poor, Social
Policy 41 (May/June 1974); National Center for Health
Statistics, V ital and Health Statistics, Volume of Physician
V isits, U.S., July, 1966-June, 1967 (1968). One in every 20 blacks

61

Lack of access to health care is due in part to the gross 
maldistribution of physicians in the United States today, 
which leaves many areas and communities devoid of ade
quate health manpower, and the discrepancies have wors
ened in the past decade.168 * Whether in inner cities or rural 
areas, not only blacks as a whole but other underrepre
sented minorities have poorer access to health care.168 
Studies demonstrate that ghetto areas have significantly 
fewer doctors than white areas of the same city.170

The lack of adequate health manpower to serve low- 
income minorities is also attributable to the growth of 
specialization and the decline in the supply of general 
practitioners, a trend that has characterized American 
medicine in the twentieth century. Between 1931 and 1963, 
the number of general practitioners fell from 112,000 to

has never seen a physician; this is true of only 1 in every 100 
whites. Fein, An Economic and Social Profile of the Negro Amer
ican, in K. Clark & T. Parson eds., The Negro American (1966). 
While much of the health difference is due to poverty, the National 
Health Survey found that black-white health and health service 
differences fail to disappear when income groups were examined 
separately. Melton, Health Manpower and Negro Health: The 
Negro Physician, 43 J. Med. Ed. 798, 801 (1968).

168 1976 U.S. Code Cong. & Admin. News 5390 shows that doctors 
are clustered in urban centers in the New England, Atlantic and 
Pacific shores. See also A Report of the Carneqie Council on 
Policy Studies in H igher Education, Progress and Problems in 
Medical and Dental Education 35-36 (1976).

169 Odeoaard, supra at 44.
170 p or example, the black ghetto of Watts in Los Angeles, Cali

fornia has 1 physician for every 4,200 persons, although the aver
age number of physicians in urban areas was 1 per 620. Melton, M. 
Health Manpower and Negro Health: The Negro Physician, 43 J. 
Med. Ed. 798, 810 (1968): see, Report of the National A dvisory 
Commission on Civil Disorders 136 (1968); Cherkasky, Medical 
Manpower Needs in Deprived Areas, 44 J. Med. Ed. 126 (1969). 
See study of metropolitan areas in 1976 U.S. Code Cong. & Admin. 
News 5392-5393 (Study Conducted in 1973).



62

73,000, or from 72% to 28% of all physicians.” 1 In 1973, 
general practitioners were an even smaller 14.9% of all 
doctors.172 * Yet, as those physicians who offer the point of 
entry into the health system and continuing contact with it, 
primary care doctors dispense preventative and ambula
tory care, and can best ameliorate the needs of underserved, 
low-income minorities.175

An increase in the number of black physicians is crucial 
not only to remedy the past effects of discrimination in 
medical education and institutions, but also to expand the 
supply of doctors who will serve blacks and to provide 
greater access to health care for the black community.

Studies over the past thirty-five years have confirmed 
the well-recognized fact that black doctors in the United 
States serve as primary care providers to an overwhelm
ingly black patient group.1751 A study in 1942 found that'

171R. Fein, The Doctor Shortage: A n Economic Diagnosis 
68-72 (1967).

172 U.S. Public Health Service, The Supply op Health Man
power: 1970 Profiles and Projections to 1990, 60 (1974). I f  one 
includes doctors in family practice, internal medicine, pediatrics 
and obstetrics-gynecology as those who provide primary cax-e, the 
percentage fell from 54.5% in 1963 to 48.4% in 1973. Id.

172 Rodgers, The Challenge of Primary Care, Daedalus 82 (Win
ter 1977). The AMA has recognized the need for primary care 
medicine. Citizens Commission on Graduate Medical Education, 
The Graduate Education op Physicians, 1960 (Millis Commis
sion) ; Committee on Education for Family Practice, Meeting the 
Challenge op Family Practice, 1966 (Willard Commission). To 
encourage greater emphasis on primary care, the AMA Council on 
Medical Education approved a certifying board for family practice 
in 1969. Odegaard, supra at 149.

1731 See in general, T. Thompson and S. Barrely, A Study op 
the Distribution and Characteristics op Black Physicians in 
the United States, 1972, The NMA Foundation 1973; Jackson, 
The Effectiveness of a Special Program for Minority Group Stu
dents, 47 J. Med. Ed. 620-624 (1972) ; Richard, The Negro Physi
cian: A  study in Motility and Status Inconsistency, 61 JNMA 
278-279 (May, 1969).

63

black doctors, educated at Howard and Meharry medical 
schools moved to urban communities to serve the health 
needs of blacks who had migrated there from the South.174 
A 1946 report showed that 88% of black physicians inter
viewed dispensed primary care, and two-thirds were full 
time general practioners.176 In 1966, black doctors in four
teen cities surveyed had predominately black patients, 
and the health of the black communities were found to be 
related to tlie numbers of black doctors in all but one 
city.176 In a survey conducted by the AMA in 1970, 45% 
of the physicians interviewed indicated they were prac
ticing in or around the town in which they were raised;177 178 
given the pervasive segregation in housing in this country, 
this data supports the findings of the other studies that 
black doctors practice in black communities. The highest 
concentration of black doctors in 1970 were in California, 
the District of Columbia, and New York, the same three 
areas that had shown among the largest increase in black 
population during those years.176 In a 1972 random sample 
of 200 doctors and dentists in New York, less than 5% 
served a predominately white patient group.179 In 1974, Na

114 Comely Distribution of Negro Physicians in the United 
States in 1912, 124 JAMA 826-830 (1944). In 1942 black doctors 
were confined to a nationally dispersed professional ghetto, Ihomp- 
son, Curbing the Black Manpower Shortage, supra.

116 Comely The Economics of Medical Practice and the Negro
Physicians, 43 JAMA 84-88 (1951) (Questionnaires were returned
by 417 black doctors.)

ns d . R ietzes, Negroes and Medicine (1958).
177 Hearing on S. 3585, Health Manpower Act Before the Sub

committee on Health of the S. Comm, on Labor and Public W el
fare, 93rd Cong., 2d Sess. 229 (1974).

178 Haynes Distribution of Black Physicians in the United 
States 1967’ 210 JAMA 93 (1969). Black doctors in California 
mirrored the rise in that State’s population where the number of 
blacks increased ninefold since 1942. Id.

179 Curtis, Blacks, Medical Schools and Society, supra at 149.



64

tional Medical Fellowships, Inc., an organization dedicated 
to increasing the number of black and minority physicians 
and to breaking racial barriers in medicine, sent a ques
tionnaire to all 471 recipients of NMF scholarships (all 
black )who had graduated from medical school in 1970 or 
before and to one-third (1,777) of all National Medical 
Association members (who are black) to determine, inter 
alia, who their patient populations were. Of the 166 NMF 
black doctors who responded, 94% reported that they 
served black patients; 55% stated that they served ex
clusively blacks. Of the 259 NMA doctors, 88% said they 
served black patients; 79% served only blacks.180

Despite the overwhelmingly predominance of black doc
tors in black communities, the meager number of black 
doctors as a whole prevents the black community from re
ceiving anywhere near its share of health resources. In 
the three areas that have the largest percentage of black 
physicians, the ratio of black doctors to black population 
were: District of Columbia, 1:1,100; California, 1:1,800; 
New York, 1:3,000,181 although the national average physi
cian to population rate is 1 :750.182 Nationwide, there is one 
black physician per 2,779 blacks in contrast to one white 
physician per 599 whites, a difference of 463%.183

White physicians are obviously needed to serve the black 
community, but researchers have reported that white doc-

180 Reitzes & Elklianialy, Black Physicians and Minority Group 
Health Care— The Impact of NMF. 14 Medical Care 1052 1058 
(1976).

181 Thompson, Curling the Black Manpower Shortage, 49 J Med 
Ed. 944, 949 (1974).

182 Johnson, History of the Education of Negro Physicians, 42 
J. Med. Ed. 439, at 443 (1967) (data as of 1967).

182 Population figures and numbers of doctors derived from U.S. 
Bureau op the Census, Statistical Abstract op the United 
States, 1976, at 25, 78 (as of 1974); percentage of black doctors to 
all doctors, Odeqaard, supra at 18.

65

tors and dentists are reluctant to practice in ghetto areas,184 * 
and leave areas as the racial population turns from white 
to black.188 Economics is undoubtedly one of the reasons 
for this pattern. Even within comparable income groups, 
non-whites spend significantly less than whites on medical 
care.186 * In some instances, however, racism is the reason 
for the refusal of white doctors to treat black patients.181 
In general, the decision to serve the black community as 
primary care providers involves a financial sacrifice.188 
Nevertheless, interviews of black medical students indicate 
that, they intend to return to black areas as primary care 
providers.189

The effect of the shortage of health manpower on the 
ill health of blacks and other minorities is aggravated by

184 Melton, supra, at 798, citing Tufts University School of 
Medicine, Comprehensive Community Health Action Program, A p
plication written for the Office of Economic Opportunity, 1966 
(mimeographed) ; University of Southern California School of 
Medicine, Neighborhood Family Health Service Center, Applica
tion written for the Office of Economic Opportunity, 1966 (mimeo
graphed).

188 E.g., Cherkasky, Medical Manpower Needs in Deprived Areas. 
44 J. Med. Ed. 126 (1969) (Study of the Bronx).

186 Curtis, Blacks, Medical Schools and Society, supra, at 
159-160.

181 See, e.g., eases concerning the refusal of health professionals 
to treat Negro patients. Washington v. Blampin, 38 Cal. Rptr. 235 
(Calif. Dist. Ct. of Appeals 1964), 9 Race Rel. L. Rep. 899 (dam
age suit versus doctor who refused to treat black child under state 
civil rights la w ); Buefort v. Elias, No. P-242 (Pa. Human Rel. 
Commissioner Jan. 26, 1965), 11 Race Rel. L. Rep. 2186 (similar).

188 Melton, supra at 807. On the average, non-white physicians 
earn less than half the amount earned by white doctors. Id.

189 Curtis, Blacks, Medical Schools and Society, supra at 
147; Curtis, Minority Student Success and Failure with The 
National Intern and Resident Matching Program, 50 J. Med. Ed. 
563, 566-567 (1975). (Less than one-fifth of the students inter
viewed sought training in other than primary care areas.)



66

the underutilization by low-income minorities of those ser
vices which are available. Long waits at clinics, bureau
cratic procedures and the extreme impersonality of en
counters between physicians and patients account for some 
of the resistance of these groups seeking health care.190 
In the area of psychiatry, blacks are generally subject to 
treatment inferior to that received by whites under similar 
circumstances.191 192 An increase in black and other minority 
physicans to serve these groups can minimize the accessi
bility problems in obtaining medical care due to cultural 
and life style barriers.191

If  blacks and other minorities are to have greater access 
to health care, more doctors are needed to serve minority

190 Strauss, Medical Ohettoes, in Patients, Physicians and Ill
ness 381-388 (E. Jaco, ed. 1972); Coe & Wesson, Social Psycho
logical Factors Influencing the Use of Community Health Re
sources, 55 A m. J. Pun. Health 1024-1031 (1965); Reissman, The 
Use of Health Services by the Poor, Social Policy 41, 42-43 (M av/ 
June 1974).

In comparison with the white population, blacks are more 
likely to be placed in mental hospitals (Rabkin & Struening, 
Ethnicity, Social Class and Mental Illness (1976); Ilollings- 
head and Redlich, Social Stratification and Psychiatric Disorder 
18 A meii. Soc. Rev. 163 (1953) while less likely, along with other 
lower-class patients, to receive outpatient psychotherapy (Schaffer 
& Myers, Psychotherapy and Social Stratification, 17 Psychiatry 
83 (1954) ; given only drugs or custodial care while in a hospital 
(Singer, Some Implications of Differential Psychiatric Treatment 
of Negro and. White Patients, Social Science and Medicine 1 
(1967); Hollingshead & Redlich, supra; kept in hospitals longer 
than whites (Crawford, Rollins & Sutherland, Variations between 
Negroes and Whites in Concepts of Mental Illness and its Treat
ment, 84 A nn. N.Y. A cad. Sci. 918 (1963); Chassan, Race, Age 
and Sex in Discharge Probabilities of First Admissions to a Psy
chiatric Hospital, 26 Psychiatry 391-393 (1963) ; treated by lower- 
ranking personnel (Schaffer & Myers, supra) ; and treated for 
lesser periods of time on an outpatient basis (Schleifler, et al. 
Clinical Change in Jail-Referred Mental Patients, 18 Archives of 
General Psychiatry 42 (1968).

192 Thompson, supra, at 949.

67

communities. The efforts of petitioner and other medical 
schools to increase the percentage of minority physicians 
is a rational strategy to ameliorate the paucity of health 
manpower in such communities.

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment of the court below should be reversed.

Respectfully submitted,

J ack  G reenberg 
J ames M. N abrit, I I I  
C harles S. R alston 
E rio S ohnapper 
D avid E . K endall 
B ill  L ann  L ee 
B eth  J . L ief 
K ellis P arker

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Amicus Curiae



la

APPENDIX A

Discrimination in Medical Education 1870-1977

Petitioner’s special admission program represents one 
of the first successful attempts by a medical school not only 
to increase the actual numbers of black physicians it pro
duces hut also to racially integrate the medical education 
it provides. Prior to 1969, when the Association of Amer
ican Medical Colleges began efforts to expand educational 
opportunities for blacks and other minority students,1 
tivo institutions provided the Vast majority of black physi
cians trained in this country: Howard University College 
‘of Medicine and Meharry Medical College.2 * Each was 
expressly created for blacks and financed with federal 
funds.2

Pervasive segregation has characterized medical educa
tion in this country. By 1948, a third of the approved 
medical schools in this country (26 out of 79) did not admit 
black students.4 Efforts to segregate medical education 
were not the individualistic expression of isolated schools;

1 See Association op A merican Medical Colleges Task Force, 
Report to the Inter-Association Committee on Expanding Edu
cational Opportunities in Medicine for Blacks and Other 
Minority Students (1970).

2 During the past century, 90% of the Nation’s black physicians 
have been trained at Howard and Meharry. J. Blackwell, T iie 
Black Community, 127-128 (1975).

2 H. Morais, The History op the Negro in Medicine, 93-94, 134- 
138, 174 (1967); J. Curtis, Blacks, Medical Schools and Soci
ety, 13-14 (1971). Seven other small black medical schools oper
ated for short periods of time, but bad ceased to operate by the 
1920’s. Johnson, History of the Education of Negro Physicians, 
42 J. Med. Educ. 439, 440-441 (1967).

* Johnson, History of the Education of Negro Physicians, supra 
at 441.



2 a

Appendix A

segregation lias been legislatively mandated and financed.
n February 8, 1948, the governors of fourteen southern 

states entered into an interstate compact for regional 
education, winch included a plan for joint support of 
Meharry Medical College to finance the medical education 
of blacks from their states who were barred from admis
sion to the medical schools in their borders. At least 
sixteen states finally participated in the program and 
adopted implementing legislation which included laws pro
viding for the payment of tuition of blacks to attend out- 
ot-state schools.6

The obvious effect of systematic exclusion was to limit 
le production of black graduates to the number of seats 

at Meharry and Howard. Even as black students gained 
access to increasing numbers of white medical schools, they 
remained a minuscule percentage of all students.

016 ^ , MVrtIlAY> States’ Laws on Race and Color 23 2ft

3a

Appendix A

TABLE I 1 01

Black Student Enrollment in 
V.S. Medical Schools for Selected Tears 

1938-39 to 1969-70
% o f  T o ta l B lack  

E n ro llm en t in

Y ea r
T ota l

E n rollm en t
N u m b er  o f  

B lack  S tu d en ts
%  B lack  
S tu d en ts

P red o m in a n tly  
W h ite  S chools

1938-1939 21,302 350 1.64 12.9
1947-1948 22,739 588 2.59 15.8
1948-1949 23,670 612 2.59 19.1
1949-1950 25,103 651 2.59 21.2
1950-1951 26,186 661 2.52 21.6
1951-1952 27,076 697 2.57 23.2
1952-1953 27,135 715 2.63 26.7
1955-1956 28,639 761 2.66 31.0
1968-1969 35,828 782 2.18 37.3
1969-1970 37,756 1,042 2.75 52.4

1J . Curtis, Blacks, Medical Schools and Society 34 (1971) 
Source: (1 ) Dietrich C. Reitzes, Negroes and Medicine, Harvard 
University Press 1958; (2 ) A.A.M.C. Fall 1969 Enrollment Ques
tionnaire. While the percentage of black students remained fairly 
constant during the years through 1969 and 1970, the actual num
bers of students showed an increase due at least in part to the 
decreasing number of schools which refused to admit blacks.

Negro Medical Student Distribution

Tear

Total Negro 
Students 
Enrolled

Negro Enroll
ment in White 

Schools

White Schools 
With Negro 

Students
1947-1948 588 93 20
1955-1956 761 236 48
1969-1970 1,042 546 84



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8a

Appendix A

fifteen states.1" Despite the fact that white hospitals were 
more modern, better equipped and thus capable of pro
viding better health care, black doctors and dentists were 
barred from their staffs and were unable to admit their

The States with hospital segregation laws were:

m!'nf 1 iAca-- C?d»e t’-t' 45 §4 (tubercular hospitals); §248 
46’ 5189 (white

A£ “ L Pftalj'.SMs' An" §57'401' 7402’ 7-404
Delaware: Del. Code Ann. tit. 16 §155 (1953).

G(S | -  nqr,7 ° ?  A " n' § 35 '225 (1935) (mental hospital); §85-308 (1957 Supp.) (mental defectives)

§205Ci 80 StaM 215'078 (tubercular hospitals) and§205.180 (1953) (mental hospitals) (both repealed in 1954)
Louisiana: La. Rev. Stats. Ann §46181 nq'Sni t

« „d  infirm ), A c* . 11)04 ( C o S d  a S )  ‘

» S ” 'k a B M iw  A" \ 59; i §61'C3 (s,al'  1,osPi“ to t i»-sane;, §§285-286 (separate tubercular hospital) 
fStatTrii MfiSSTTC° de ^ nn’ 56883 (mental hospital); §6927
(separate^u^e^)°SP,ta ! §69?3 (Separate ^ 7 4

MlS °n d ed )M0' ReV' StatS‘ 59390 (1939  ̂ (sch001 feeble

^hospHaO0^ 131 R a  Gen- StatS- §122' 3 (1857 supp.) (mental 
Oklahoma: Okla. Stats. Ann. tit. 10 §§201-206 1 n o i n  rn

s t w S T A s a ? )1 * • 3g' » 251-256 s
i " " ; ” ;  Te,,n- A" " -  SS3-G02 (1955) (hospital for 

Texas: Tex. Civ. Slats. Ann. art. 324a (1952) (TB hospital) 

v= »  ,o 37-G (i95° ’

See P. Murray, States’ Laws on Race and Color (1951).

9a

Appendix A

patients.17 Where black patients were admitted, they were 
often placed in segregated wards and rooms.18

17 SimJcins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th 
Cir. 1963), cert, denied 376 U.S. 938 (1964).

18 A substantial number of courts have ruled on claims that both 
publicly-owned and nongovernmental facilities have excluded or 
segregated black patients and health professionals. See, e.g., Eaton 
v. Board of Managers, 261 F.2d 521 (4th Cir. 1958), cert. den. 359 
U.S. 984; Raclcley v. Board of Trustees, 310 F.2d 141 (4th Cir.
1962) ; Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Flagler 
Hospital, Inc. v. Hayling, 344 F.2d 950 (5th Cir. 1965); Smith v. 
Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 
1966); Cypress v. Newport News General and Nonsectarian Hospi
tal, 375 F.2d 648 (4th Cir. 1967) ; Johnson v. Crawfis, 128 F. Supp. 
230 (E.D. Ark. 1955); Wood v. Hogan, 215 F. Supp. 53 (W.D. Va.
1963) ; Porter v. North Carolina Bd. of Control, No. C-123-D-62 
(M.D. N.C. Mar. 28, 1963); Addison v. High Point Memorial Hos
pital, No. C-96-C-64 (M.D. N.C. Aug. 28, 1964) ; Clayton v. Person 
County Hospital, No. C-137-D-64 (M.D. N.C. Oct. 28, 1964) ; 
Rogers v. Druid City Hospital, 10 Race Rel. L. Rep. 1273 (1965) ; 
Batts v. Duplin General Hospital, No. 1110 (E.D. N.C. Dec. 23, 
1965), 11 Race Rel. L. Rep. 1427 (1966); Hall v. Roanoke- 
Chowan Hospital, No. 522 (E.D. N.C. Sept. 7, 1975) ; Mangrum 
v. Iredell Hospital, No. 519 (W.D. N.C., Nov. 9, 1965); Racking v. 
Board of Trustees, 238 F. Supp. 512 (E.D. S.C. 1965) ; Bell v. 
Fulton DeKalb Hospital Authority, No, 7966 (N.D. Ga. Feb. 23, 
1965); Lewter v. Lee Memorial Hospital, No. 65-47-Ci. (M.D. Fla. 
Dec. 10, 1965); Reynolds v. Anniston Memorial Hospital, No. 65- 
206 (N.D. Ala., June 21, 1965); Rax v. State Department of Hos
pitals, C.A. No. 3265 (E.D. La. Dec. 23, 1965), 11 Race Rel. L. Rep. 
384; Pringle v. State Tuberculosis Bd., No. 1044 (N.D. Fla. Jan. 
26, 1966) 11 Race Rel. L. Rep. 1427; Burton v. Arkansas Tubercu
lar Sanitorium, No. LII-60-C-51 (E.D. Ark., May 3, 1966), 11 Race 
Rel. L. Rep. 1933; Marable v. Alabama Mental Health Board. 297 
F. Supp. 291 (M.D. Ala. 1969). See a general discussion of dis
crimination in medical care in Meltsner, Equality and Health, 115 
Pa. L. Rev. 22 (1966); and Reitzes, Negroes and Medicine 19^8; 
See also Reports of Detroit Mayor’s Interracial Committee (1956),
1 Race Rel. L. Rep. 1123; Atty. Gen. Opinion, Michigan, July 17, 
1957, 2 Race Rel. L. Rep. 1203 (private nursing home can restrict 
facilities to Caucasians); Chicago Ordinance of March 14, 1956 at
2 Race Rel. L. Rep. 697 (forbidding discrimination by hospitals); 
N.Y. Dept, of Welfare Policy, Dec. 12, 1956, 2 Race Rel. L. Rep. 
511 (policy against exclusion in nursing homes).



10a

Appendix A

Black physicians have faced and still face segregation 
and exclusion not only by hospital facilities but by the 
organized medical profession as well.

In 1868, black physicians first sought, and were re
fused, membership in the American Medication Association 
(AM A).18 In the 1960’s blacks were still faced with the 
problem, especially in the South, of being excluded from 
membership in local affiliates of the AMA. Despite numer
ous attempts to have the AMA revoke the privileges of 
local medical societies which denied membership to blacks, 
the AMA has continued to refuse to adopt such resolu
tions.19 20 Local dental associations have similarly refused 
black membership.21 Denial of membership in these asso
ciations has not only deprived black physicians and den
tists of an important forum for the exchange of ideas, 
techniques and advances but has actually meant denial of 
hospital affiliation and loss of fees.22 * * * * * Absent local medical 
or dental society accreditation, Southern black doctors 
were automatically barred from participation in company

19 Morais, note 3 supra at 52.
20 Id. at 174-175; Melton, Health, Manpower and Negro Health: 

The Negro Physician, 43 J. Med. Educ. 798, 799 (July 1968); 
Johnson, History of the Education of Negro Physicians, 42 J. 
Med. Educ., 439, 444-445 (1967).

21 Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th 
Cir. 1966); Bell v. Georgian Dental Association, 231 F. Supp. 299 
(N.D. Ga. 1964).

22 In many areas of the country, doctors have to be accredited
by their county societies before they can be eligible for hospital
appointments. I f  black doctors wish to hospitalize patients in such
circumstances, they have to do so by referring them to staff phy
sicians, thereby running the risk of losing them forever. Morais,
supra at 179.

11a

Appendix A

and union-backed health-care plans;22 black dentists were 
denied the right to vote for or become members of State 
Boards of Health, medical licensing boards, and state 
hospital advisory boards.21

22 JUd.
u Sce Hawkins v. North Carolina Dental Society, 355 F.2d 718 

(4th Cir. 1966); Bell v. Georgia Dental Association, note 21 supra.



- V i , "

12a

a p p e n d i x  b

De Jure Segregation in California Public Education

1. Elementary and Secondary Public School Segregation

In 1972, three-quarters of California’s black elementary 
and secondary public school pupils attended schools which 
were 50-100% black, Chicano, Asian or Indian; over 40% 
attended public schools which were 95-100% minority,* 5 * * * * * * * * 26 
and numerous judicially noticeable decisions demonstrate 
that official policies have caused, at the very least, a sub
stantial measure of this condition. The following school 
districts have been found to have segregated minority 
school children in violation of the Fourteenth Amendment 
of the federal Constitution and/or in violation of federal 
statutory civil rights guarantees:26 San Francisco,27 Los

25 Bureau of the Census’ Statistical Abstract of tiie United States, 1976, p. 133 (1976). united

pl ®ta^ Stical eI idenceJon the ^ n t  of segregation in California 
elementary and secondary education is available in U. S Depart 
ment OF Health, Education and Welfare, Office for Civil 
Rights, D irectory of Public Elementary and SecondI ry 
Schools in Selected Districts, Enrollment and Staff by

5 i C1'f / llI S  ? r F f \ 1968 <1970)- F all 1970 (1972),d I all 1972 (1974). See also biannual California State De
partment of Education, Racial and Ethnic Survey of Califor-

S S f i m T r  19mG (1967)> FALL 1908 (19" )I ALL j wo (1971) ; Center for National Policy Review Trends 
in Black School Segregation, 1970-1974, Vol. I (1977) and 
Trends in Hispanic Segregation, 1970-1974, Vol. II (1977)

U S r T X l 40 ? ^ ,V I,° TfT the Givil Ri^ t s  Act of 1964, 42S' 1972§ 20 TJ S C ’ 5 Toon Emergency School Aid Act
“ , - W , /  * 1600 et se1-> the Department of Health Ed

ucation and Welfare is given authority to terminate federal as
sistance in cases of, respectively, school segregation generally and 
teacher ass'gnment. IIE W ’s enforcement role Is discussed h lfiZ r  
alia, 3 U.S. Comm, on Civil Rights, The Federal Civil Rights 
Enforcement Effort-1974, To Ensure Equal Educational Op
(See footnote 27 on following page.)

13a

Appendix B

Angeles,28 * Pasadena,28 San Diego,30 Oxnard,31 Pittsburg,32 
Richmond,33 Delano,34 * Fresno,36 Sweetwater,36 Watsonville

portunity 49-138 (1975). Recent litigation concerning IIEW ’s 
failure to fulfill its enforcement obligations includes Adams v. 
Richardson, 480 F.2d 1159 (D.C. Cir. 1973); Brown v. Weinberger, 
417 F. Supp. 1215 (D.D.C. 1976); Kelsey v. Weinberger, 498 F.2d 
701 (D.C. Cir. 1974).

27 Johnson v. San Francisco Unified School District, 339 F. Supp. 
1315 (N.D. Cal. 1971), app. for stay denied, Ouey Tleung Lee v. 
Johnson, 404 U.S. 1215 (1971), vacated and remanded, 500 F.2d 
349 (9th Cir. 1974); P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 
1972), affirmed, 502 F.2d 963 (9th Cir. 1974) (14th Amendment 
violation); Lau v. Nichols, 414 U.S. 563 (1974) (Title V I viola
tion found).

28 See, Kelsey v. Weinberger, supra, 498 F.2d at 704 n. 19 (HEW  
determination of violation of Emergency School Aid Act noted).

25 Spangler v. Pasadena City Board of Education, 311 F. Supp. 
501 (C.D. Cal. 1970) (14th Amendment violation).

30 People v. San Diego Unified School District, 19 Cal. App. 3d 
252, 96 Cal. Rptr. 658 (Ct. App. 1971) (14th Amendment viola
tion ).

31 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).

32 Brice v. Landis, 314 F. Supp. 94 (N.D. Cal. 1969) (14th 
Amendment violation).

33 See Kelsey v. Weinberger, supra, 498 F.2d at 704 n. 19 (IIEW  
determination of violation of Emergency School Aid Act noted).

34 See, Brown v. Weinberger, supra, 417 F. Supp. at 1224 (vio
lation of Title VI noticed by IIEW).<

36 See, Brown v. Weinberger, supra, 417 F. Supp. at 1223 (viola
tion of Title VI noticed by IIE W ).

36 See, Brown v. Weinberger, supra, 417 F.Supp. at 1224 (viola
tion of Title VI noticed by H EW ).



14a

Appendix B

(Pajaro Valley),37 Desert Sands,38 Bakersfield,39 Berkeley,40 
and Redwood City (Sequoia).41 In addition, school sys
tems in Los Angeles,42 San Francisco,43 San Diego,44 San 
Jose,46 Pasadena,45 Delano,47 San Bernardino,48 and Santa

37 Id.
38 Id.
39 See, Center for National Policy Review, Justice Delayed, 

IIEW  and Northern School Desegregation 108 (1974) (viola
tion of Title VI noticed by IIE W ).

40 Id .; see also, U.S. Comm, on Civil Rights, Fulfilling the 
Letter and Spirit of the Law 50-54 (1976) (discussion of Berke
ley’s voluntary desegregation effort).

41 See, Center for National Policy Review, Justice Delayed, 
H EW  and Northern School Desegregation 108 (1974) (viola
tion of Title VI noticed by H EW ).

Also, the State Department of Education agreed to remedy dis
proportionate representation of Mexican-American children in 
classes for educable mental retarded classes by a consent decree 
in Diana v. State Board of Education, N.D. Cal. Civ. Act. No. 
C-70-37 REP, stipulation dated June 18, 1973.

42 Crawford v. Board of Education, 17 Cal. 3d 280, 130 Cal 
Rptr. 724, 551 P.2d 28 (1976).

43 See, San Francisco Unified School District v. Johnson, 3 Cal 
3d 937, 943, 92 Cal. Rptr. 309, 311, 479 P.2d 669, 671 (1971) 
(en banc), cert, denied, 401 U.S. 1012 (1971).

44 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).

46 Carlin v. San Jose Unified School District, ------  Cal. App.
Supp. 3 d ------ , ------  Cal. Rptr. ------  (Super. Ct., County of San
Diego, No. 303800, filed March 9, 1977).

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

47 Pena v. Superior Court, 50 Cal. App. 3d 694, 123 Cal. Rptr 
500 (Ct. App. 1975).

48 NAACP  v. San Bernardino City Unified School District, 17
Cal. 3d 311, 130 Cal. Rptr. 744, 551 P.2d 48 (1976).

15a

Appendix B

Barbara49 have been found in violation of State school 
segregation and racial imbalance prohibitions. While nec
essarily an estimate, it appears that fully 59% of black 
and 43% of all minority public school pupils in 1970 at
tended schools in districts that have been found in viola
tion of federal or State laws prohibiting school segre
gation.60 It also should be noted that a substantial propor
tion of California’s black population received some part of 
its schooling under de jure segregation conditions in the 
southern states.61 *

Moreover, the recent school desegregation decisions in
dicate that California has not fully dismantled its historic 
separate school system, which has been characterized as a 
“ classic case of [the] de jure segregation involved in Brown 
v. Board of Education, 347 U.S. 483, relief ordered, 349 
U.S. 294,” Guey Tleung Lee v. Johnson, 404 U.S. 1215,1215-

49 See, Santa Barbara School District v. Superior Court 13 Cal 
3d 315, 319, 118 Cal. Rptr. 637, 642, 530 P.2d 605, 609-610 (1975)

60 Statistics derived from enrollment statistics by school district 
and projected universe statistics for all California districts in U.S. 
Department of Health, Education and Welfare, Office of 
Civil Rights, Directory of Public Elementary and Secondary 
Schools in Selected Districts, Enrollment and Staff by 
Racial/E tiinic Groups, Fall 1970 (1972).

61 Fully 42% of California’s black population was born in the 
South, see U.S. Bureau of the Census, 1970 Census of Population, 
Series PC(2)-2A, State of Birth 55, 61 (1973); see also U. S. Bu
reau of the Census, Current Population Reports, Series P-23, No. 
46 • The Social And Economic Status of the Black Population m 
the United States, 1972 at 12 (1973). Extraordinary black migra- 
tion to California, principally from the South, during and after 
the Second World War, resulted in the black population multiply
ing by 11.3 times from 1940 to 1970, U. S. Bureau of the Census, 
Historical Statistics of the United States, Colonial Times to
1970, Part I 25 (1976). In the same period, the white population 
increased by only 2.7 times).



16a

Appendix B

1216 (1971) (Mr. Justice Douglas, Circuit Justice).62 Soon 
after the first public “colored school” was opened in San 
Francisco for black children, California’s education law 
was formally amended in I86 053 to permit separate schools 
for the education of “Negroes, Mongolians and Indians.” 54 
The constitutionality of the provision subsequently was 
upheld, Ward v. Flood, 48 Cal. 36 (1874),66 but the statute 
was lepealed in 188056 after the closing of separate black 
schools in California’s larger cities for reason of economy.67 
However, recalcitrant districts continue to separate black 
school children,68 and systemic segregation continued into 
the 20th century.69 The most common means of segrega
tion has been through manipulation of student attendance 
zones, school site selection and neighborhood school pol-

In Guey Ileung Lee, Mr. Justice Douglas denied a request by 
Americans of Chinese ancestry to stay a school desegregation plan 
for San Francisco, observing that, “ [s]chools once segregated by 
State action must be desegregated by State action, at least until 
the force of the earlier segregation policy has been dissipated,”  id. 
at 1216.

The history of school segregation in California is reviewed in 
C. \\ OLLENBERG, ALL DELIBERATE SPEED, SEGREGATION AND EX
CLUSION in California Schools, 1855-1975 (1976) and I. Hen
drick, The Education of Non-Whites in California, 1849-1970 
(1977). Pertinent sources and studies are cited. See also M 
Weinberg, A Chance to Learn (1977).

§68* 1860 ^  StatS'’ C' 329, §8’ see als0’ 1863 Cal- stMs., c. 159,

64 See, W ollenberg, supra, at 10-14.

66 Ward v. Flood was later cited with approval in Plessy v Fer
guson, 163 U.S. 537, 545 (1896).

66 General School Law of California, §1662 at 14 (1880).
57 See, C. W ollenberq, supra, at 24-26.

5S See, Wysinger v. Crookshanlc, 82 Cal. 588, 23 P. 54 (1890).
69 See Hendrick, supra, at 78-80, 98-100.

17a

Appendix B

icy.60 Following unsuccessful efforts to exclude Chinese,61 
Japanese62 and Indian children63 from public education 
altogether, specific statutory authority was created for the 
establishment of separate schools for Chinese, Japanese 
and Indian children.64 * The California Education Code 
provided:

“ § 8003. Schools for Indian children, and children of 
Chinese, Japanese, or Mongolian parentage: Estab
lishment. The governing board of any school district 
may establish separate schools for Indian children, 
excepting children of Indians who are wards of the 
United States Government and children of all other 
Indians who are descendants of the original Amer
ican Indians of the United States, and for children 
of Chinese, Japanese, or Mongolian parentage.

“ §8004. Admission of children into other schools. 
When separate schools are established for Indian chil
dren or children of Chinese, Japanese, or Mongolian 
parentage, the Indian children or children of Chinese, 
Japanese, or Mongolian parentage shall not be ad
mitted into any other school.”

60 See, id., at 100, 103-106; see, e.g., Spangler v. Pasadena City 
Board of Education, 311 F. Supp. 501 (C.D. Cal. 1970). Cf. Keyes 
v. School District No. 1, 413 U.S. 189, 191-194 (1973).

See, e.g., Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885).
62 See, e.g., Aolci v. Deane, discussed in W ollenberg, supra, at 

48-68.
63 See, e.g., Anderson v. Mathews, 174 Cal. 537, 163 P. 902 

(1917); Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926 
(1924).

64 1885 Cal. Stats., c. 117, §1662 (Chinese); 1893 Cal. Stats., 
c. 193, §1662 (Indians); 1921 Cal. Stats., c. 685, §1 (Japanese). 
The 1893 Indian provision was amended in 1935, see infra, at p. 
18a, n. 67. See generally, W ollenberg, supra, at 28-107; Hen
drick, supra, at 11-59.



■ . A  — ......—  '

18a 19a

Appendix B Appendix B

These provisions were not repealed until 1947,65 see Guey 
Beung Lee v. Johnson, supra, 404 U.S. 1215.

The repeal of California school segregation statutes 
seven years before this Court’s invalidating decision in 
Brown v. Board of Education, supra, was precipitated by 
Mendez v. Westminster School District, 04 F. Supp. 544 
(C.D. Cal. 1946), affirmed, 161 F.2d 744 (9th Cir. 1947) 
(en banc), involving yet another racial minority. As was 
true of the southwestern states generally, see Keyes v. 
School District No. 1, 413 U.S. 189, 197-198 (1973), de jure 
public school segregation of Mexican-American school chil
dren was tolerated by the State.66 While California law 
did not expressly sanction separate schools, state adminis
trative authorities construed the term “Indian” in the 
school segregation law to include Mexican-Americans.67 * 69 
Mendez v. Westminster School District, supra, held that 
“ the general and continuous segregation in separate schools 
of the children of Mexican ancestry from the rest of the 
elementary school population” in four Orange County dis-

65 1947 Cal. Stats., c. 737, §1.
u See, H endrick, supra, at 60-70, 81-82, 89-92; W ollenberg, 

supra, at 109-118.
67 California’s Attorney General was of the view that, “ the 

greater portion of the population of Mexico are Indians, and when 
such Indians migrate to the United States, they are subject to the 
laws applicable generally to other Indians.”  22 California De
partment of J ustice, Opinions of the A ttorney General, 
Opinion 6735a (January 23, 1930) 931-932 (1930). The legislature 
then amended the separate school law to exclude from coverage 
“ children of Indians who are wards of the United States Govern
ment and children of all other Indians who are descendants of 
the original American Indians of the United States,” 1935 Cal. 
Stats., c. 488, §§1, 2. As a result, most American Indians were ex
cluded from coverage but Mexican-Americans included, see, H en
drick, supra, at 87 ; W einberg, supra, at 166.

tricts was im perm issible under the Fourteenth  Am end- 
ment. A s  was the case with the other racial m inorities, 
segregation  o f  M exican-A m erican children in public schools 
was part and parcel o f  general state-im posed racially d is
crim inatory policies and practices.6*
• The 1940’ s and the 1950’ s w itnessed an accelerated rate 
o f segregation  as a result o f  rap id  in-m igration  o f m inor
ity grou ps and the actions o f  d istricts in draw ing school 
attendance areas .70 Thus, in the State D epartm ent o f  E du 
cation ’ s first statew ide survey o f  racial distribution  m  
school d istricts in 1966, it was concluded that, “ despite 
efforts to im plem ent the policies o f  the State B oard  o f  
E ducation  and the p rogress  m ade by  the D epartm ent o f  
E ducation , the task o f elim inating segregation  and p ro 
vid in g  equal educational opportunities rem ains form id 
able ” 71 A s  the recent cases decided in the decade since 
dem onstrate, supra, “ the fo rce  o f  the earlier segregation  
p o licy  has [n ot] been dissipated,”  Guey Ileung Lee v.
Johnson, supra, 347 U.S. at 1216.

Studies have docum ented som e o f  the deleterious effects 
o f  this educational deprivation . See, e.g., Governor’s Com
mission on the L os A ngeles R iots, V iolence in the C ity 
49 et seq. (1 9 6 5 ); California L egislature, A ssembly P er-

Yielc Wo v. napkins, 118 U.S. 356 (1886) ■ Oyama
v. California, 332 U.S. 633 (1948); Takahashi v. Fish and Game
Commission, 334 U.S. 410 (1948).

69 See eg . Lopez v. Seccombe, 71 F. Supp. 769 (S.D. Cal. 1944) 
(exclusion from municipal park and swimming pool) ; Perez v. 
Sharp., 32 Cal. 2d 711, 198 P.2d 17 (1948) (miscegenation).

99 See, H endrick, supra, at 104-106; cf., Romero v. Weakley, 226 
F.2d 399 (9th Cir. 1955).

71 California State D epartment of E ducation, R acial and 
E thnic Survey of California’s P ublic Schools, F all 1966, m
(1967).



■ j'r 't r j.

20a

Appendix B

MANENT SuBCOM. ON POSTSECONDARY EDUCATION, UNEQUAL
A ccess to College (1975). See generally U.S. Civil R ights 
Commission, Mexican A merican E ducation Study, R eports 
I—VI (1971-1974) (comprehensive study of Mexican-Amer
ican public school segregation in the southwestern states, 
including California). “A predicate for minority access 
to quality post-graduate programs is a viable, coordinated 
. . . higher education policy that takes into account the 
special problems of minority students.” 72 It was there
fore appropriate for the University of California-Davis 
medical school in framing its admissions policies “ to con
sider whether . . . educational requirements] ha[ve] the 
‘effect of denying . . .  the right [to public higher ed
ucation] on account of race or color’ because the State 
or subdivision which seeks to impose the requirements] 
has maintained separate and inferior schools for its 
[minority] residents,” Gaston County v. United States,

72 Adams v. Richardson, 480 F.2d 1159, 1165 (D.C. Cir. 1973). 
In Adams, the D. C. Circuit analyzed the requirements of Title VI 
for State systems of higher education, and concluded that,

“ The problem of intergrating higher education must be dealt 
with on a state-wide rather than a school-by-school basis.10 
Ferhaps the most serious problem in this area is the lack of 
state-wide planning to provide more and better trained mi
nority group doctors, lawyers, engineers and other profes
sionals. A  predicate for minority access to quality post grad
uate programs is a viable, coordinated state-wide higher edu
cation policy that takes into account the special problems of 
minority students.

. 10 j s important to note that we are not here discussing 
discriminatory admissions policies of individual institutions. 
. . . This controversy concerns the more complex problem of 
of system-wide racial imbalance.”

Id. at 1164-1165. In the next section, we show that the State of 
California has done precisely this, viz. formulated a state-wide 
higher education policy that seeks to overcome discrimination at 
lower levels of public education.

2 1 a

Appendix B

395 U.S. 285, 293 (1969). Oregon v. Mitchell, 400 U.S. 112, 
1333 (1970).

2. California’s Postsecondary Effort to Overcome the 
Effects of Racial Segregation at Lower Levels of 
Public Education

The entire public higher education system of the State 
of California is under a duty imposed by state law to 
“ [address] and overcom[e'J . . . ethnic . . . underrepre
sentation in the makeup of the student bodies of insti
tutions of public higher education.” 73 This deliberate 
State policy sanctions the race-conscious admissions pro
gram of the University of California-Davis medical 
school.74 75

In 1960, California’s Master Plan for Higher Education 
stipulated that up to two percent of the undergraduate 
body of the University of California, the California State 
University and Colleges, and the California Community 
Colleges be admitted as exceptions to the general admis
sion requirements.76 Pursuant to this authority the Uni
versity of California in 1964-65, and the State Colleges

75 California Assembly Concurrent Resolution No. 151, 1974 Cal.
Stats., Res. c. 209.

74 See, e.g., California F ostsecondary E ducation Commission, 
P lanning for F ostsecondary E ducation in California : A  F ive 
Y ear P lan U pdate 33, n.* (1977).

75 California L egislature, A ssembly, A  M aster P lan for 
H igher E ducation in California, 1960-1975 p. 12 (1960). The 
Master Flan was approved by the State Board of Education and 
the Regents of the University of California December 18, 1959, id. 
at 6 . The Master Flan was formulated pursuant to authority con
ferred by the legislature, 1959 Cal. Stats., Res. c. 160.



22 a

Appendix B

in 1966-19G776 77 78 * * began to establish various undergraduate 
“Equal Opportunity Programs” to increase opportunities 
for “ socio-economically disadvantaged” students71 through 
recruitment, tutoring, financial aid, etc.78 in order “ to re-

76 The California Community Colleges instituted its program in 
19G9-1970, infra.

77 “ Initially, under the terms of the 1960 Master Plan, the 
number of authorized exceptions to the basic state college and 
University admissions rules were limited to the equivalent of 
2 % of the number of applicants expected to be admitted as 
freshmen and as transfer students. The figure of 2 % was 
recommended by the Master Plan Survey Team without any 
particular justification, except that it would provide some re
lease from the basic rule in the case of athletes and others 
whom the state colleges and University might wish to admit.

“As the pressure to admit more disadvantaged students be
gan to increase, the pressure to admit a greater number of 
exceptions also increased. A  careful examination of the way 
the campuses were actually using the allotted 2 % revealed, to 
no one’s surprise, that it was being used primarily for ahtletes 
and others with special talents or attributes which the cam
puses wanted. For 1966 it was found that among the freshmen 
admitted as exceptions by both segments, less than 2 of 10 
could be termed disadvantaged. And the figure was less than 
1 in 10 for those admitted to advanced standing. In the follow
ing year, 1967, as pressure continued to mount for the admis
sion of disadvantaged students, these figures began to show 
some improvement, but the number of exceptions who were 
also disadvantaged remained well below 50%.”

California Legislature, Joint Com. on H igher Education The 
Challenge of A chievement: A Report On Public And Private 
H igher Education In California 77 (1969).

78 California Postsecondary Education Commission Plan
ning For Postsecondary Education In California- A Five 
Y ear Plan Update, 1977-1982, 32-34 (1977) describes the affirma
tive action and related programs of the three branches of Califor
nia s higher education system :

“ University of California: In 1964, the University of Cal- 
established an Educational Opportunity Program 

(EOI ) designed to increase the enrollment of disadvantaged
students at the undergraduate level. Supported by the Uni-

MfiittttiabA • _t -**•.%( i*<!' 1,1 '**

23a

Appendix B

adjust some of the past practices which have contributed 
to the problems of ‘minority and disadvantaged’ popula
tions” and “ to attack one of the root causes of social

versity’s own funds and those from federal financial aid pro
grams, this program has grown from an enrollment of 100 
students and a budget of $100,000 in 1965, to an enrollment 
of over 8,000 students with a budget in excess of $17 million.

“ Dissatisfied with the growth in minority enrollments, the 
University in 1975 initiated an expanded Student Affirmative 
Action program to supplement the activities of campus 
EOPs. . . .

• • •
“ The University also has initiated a variety of programs at 

the graduate and professional level to increase the enrollment 
of students from underrepresented groups. Generally, these 
programs include special recruitment efforts and academic 
support services. As a result, the enrollment of Black and 
Chicano students at the graduate level increased from 3 per
cent in 1978 to 10.7 percent in 1972. Since then, Chicano 
graduate enrollments have continued to increase but Black 
graduate enrollments have declined.

“ Finally, the University is authorized to admit up to 4 per
cent of its entering students under a special program which 
provides for the admission of students who demonstrate po
tential for success but do not fully meet the regular entrance 
requirements.

“ California State University and Colleges: Approximately 
$5.5 million in State funds were allocated to the California 
State University and Colleges in 1974-75 for its Educational 
Opportunity Program, which served 13,585 students that year. 
For 1976-77, the State University projects that it will serve 
19,439 students with a total of $10,182,138 in State appropria
tions ($6,129,041 in grants and $4,053,097 in support services). 
EOP funds provide not only financial aid, but also a number 
of student support services such as personal and academic 
counseling. In addition, the State University is experimenting 
with alternative admissions standards on several campuses. 
The State University system also is authorized to admit up to 
4 percent of its entering freshmen class in exception to reg
ular admission requirements, with a similar percentage for 
lower division transfer students. . . .

“ California Community Colleges: Extended Opportunity 
Programs and Services of the California Community Colleges



iii^ftA.rrwuiihi ,nxw.. MMgBMagg atfcteatmfl ».w.a aMmsae..•fe.'.a

]

24a

Appendix B

inequality—the lack of education.” 79 The systematic un
derrepresentation of minority groups at successive levels 
of California public education was cited as the rationale 
for the programs.80 Reviewing the programs in 19C6, the

reached approximately 37,000 students in 1974-75 with a State 
appropriation of $6.7 million. For 1976-77, those funds were 
increased to $11.4 million. The EOPS program was the re
sult of specific legislation (SB 164, 1969) which identified the 
unique purposes for allocating State funds in this area. The 
Community Colleges report that the State dollars are put at 
the disposal of students either through student support ser
vices (such as academic and personal counseling, tutoring, 
and financial aid counseling), or through direet grants and 
work/study programs.”

Compare California Legislative, Joint Com. of Higher Edu
cation, The Challenge of Achievement: A Report On Public 
and Private Higher Education in California 65-80 (1969); 
California Legislature, Joint Com. on Higher Education, K. 
Martyn, Increasing Opportunities For Disadvantaged Stu
dents, Preliminary Outline (1967).

79 California Coordinating Council For Higher Education,
H. Kitano & D. Miller, A n Assessment of Educational Oppor
tunity Programs in California Higher Education 2 (1970).

80 See, e.g., California Legislature, Joint Com. on Higher Edu
cation, The Challenge of Achievement, supra, at 66 (Table 6.1) :

Racial and Ethnic D istribution of E nrollment for California Public Schools 
and P ublic Higher Education, Fall 1907

Chinese,
Spanish Japanese, American Other Other

Level o f  Enrollment Surname Negro Korean Indian Nonwhite TVhite

Elomontary
Grades (K -8) ............  14.4% 8.6% 2.1% .3% .7% 73.9%

High School
Grades (9-12) .......... 11.6 7.0 2.1 .2 .5 78.6

All Grades, K-12 ..........  13.7 8.2 2.1 .3 .7 75.1
Junior Colleges ............  7.5 6.1 2.9 .1 .8 82.6
California

State Colleges ............  2.9 2.9 1.9 .7 —  90.1
University of

California* ..........................7 .8 4.6 .2 —  93.7

Excludes Berkeley Campus.

25a

Appendix B

California Coordinating Council on Higher Education81 
advised higher education bodies “ to explore ways of ex
panding efforts to stimulate students from disadvantaged 
situations to seek higher education” 82 and, as part of that 
effort, directed that consideration be given to expanding 
the two per cent exception by an additional two per cent 
to accommodate disadvantaged students not otherwise 
eligible.83 Two years later, the Council recommended, and 
the University and State Colleges accepted an expansion 
of the programs by raising the ceiling to four per cent, 
with at least half the exceptions reserved for disadvantaged 
students.84 Criticism of the exception as unduly narrow, 
however, continued.85 After further study,86 the California

81 The Council was renamed the California Postsecondary Edu
cation Commission.

82 California Coordinating Council For Higher Education, 
K. Martyn, Increasing Opportunities in Higher Education For 
Disadvantaged Students, supra at 7 (1966).

33 Id.
84 See, California Legislature, Joint Com. on Higher Educa

tion, The Challenge of Achievement: A Report on Public 
and Private Higher Education in California, supra, 78.

85 For instance, the Joint Committee on Higher Education’s 
report, id., criticized the four per cent ceiling as “arbitrary” and 
limiting, and suggested a ten per cent ceiling that would permit 
“ a real effort on the part of the two four-year segments to expand 
opportunities for disadvantaged students.”  The report also called 
for a general reappraisal of California higher education policies 
and stated that:

“ To many institutions, in the name of maintaining stan
dards, have excluded those who would benefit most from fur
ther education. For these reasons we believe that current ad
missions policies among California’s public institutions of 
higher education should be very carefully and thoroughly 
reexamined."

Id. at 80.
(See footnote 86 on following page.)



26a

Appendix B

Legislature enacted Assembly Concurrent Resolution No.
151 (1974) to provide, in pertinent part, that:

“ W hereas, 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 propor
tion of these groups among recent California high 
school graduates; and

“ W hereas, It is the intent of the Legislature that 
such underrepresentation be addressed and overcome 
by 1980; and

“ W hereas, It is the intent of the Legislature that 
this underrepresentation be eliminated by providing 
additional student spaces rather than by rejecting any 
qualified student; and * *

“ In the 1960 Master Plan for Higher Education, California 
committed itself to provide a place in higher education to 
every high school graduate or eighteen-year-old able and mo
tivated to benefit. California became the first state or society 
in the history of the world to make such a commitment. We 
reaffirm this pledge.

* • •
“ Our achievements in extending equal access have not met 

our promises. Though we have made considerable progress in 
the 1960’s and 1970’s, equality of opportunity in postseeondary 
education is still a goal rather than a reality. Economic and 
social conditions and early schooling must be significantly im
proved before equal opportunity can be realized. But there is 
much that can be done by and through higher education.”

California Legislature, Joint Com. On tiie Master Plan For 
Higher Education, Report 33, 37 (1973). The report recom
mended that, inter alia, “ Each segment of California public higher 
education shall strive to approximate by 1980 the general ethnic, 
sexual and economic composition of the recent California high 
school graduates,”  at 38, and is the principle legislative history of 
Assembly Concurrent Resolution No. 151.

27a

Appendix B

“ W hereas, It is the intent of the Legislature to com
mit the resources to implement this policy; and

“ W hereas, It is the intent of the Legislature that 
institutions of public higher education shall consider 
the following 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 pro
grams.

(d) Improved counseling for disadvantaged stu
dents ;

now, therefore, be it

“Resolved by the Assembly of the State of Califor
nia, the Senate thereof concurring, That the Regents 
of the University of California, the Trustees of the 
California State University and Colleges, and the 
Board of Governors of the California Community Col
leges are hereby requested to prepare a plan that will 
provide for addressing and overcoming, by 1980, 
ethnic, economic, and sexual underrepresentation in 
the makeup of the student bodies of institutions of 
public higher education as compared to the general 
ethnic, economic, and sexual composition of recent 
California high school graduates . . .”

“In adopting Assembly Concurrent Resolution 151 (1974) 
the Legislature acknowledged that additional effort by 
colleges and universities is necessary to overcome under-



28a

Appendix B

representation of ethnic minorities and the poor,” Califor
nia L egislature, A ssembly P ermanent Subcom. on P ost
secondary E ducation, U nequal A ccess T o College 1 
(1975).

California’s public higher education affirmative action 
effort has been predicated on the need to increase educa
tional opportunities of persons disadvantaged by financial, 
geographic, academic and motivational harriers.81 The 
documented effect of such artificial harriers to exclude 
many disadvantaged students, particularly minority stu
dents, from higher education in California was the spur 
to affirmative action.87 88

Moreover, it is evident that individuals of low-income 
minority groups suffer from double discrimination.89 
California’s public higher education system has been char
acterized as “ inherently racist because socioeconomic and

87 California Coordinating Council For Higher Education, 
H. K itano & D. Miller, A n Assessment of Educational Op
portunity Programs In California Higher Education, su p ra , 
at 9; California Legislature, Joint Committee on Higher Edu
cation, K. Martyn, Increasing Opportunities F or Disadvan
taged Students, Preliminary Outline, s u p r a ;  California Co
ordinating Council For Higher Education. K. Martyn, In
creasing Opportunities In Higher Education For Disadvan
taged Students, su p ra , at 10-11.

88 See, e.g., California Legislature, Joint Com. on Higher 
Education, K. Martyn, Increasing Opportunities For Disadvan
taged Students, Preliminary Outline, su p ra , at 3-14; Califor
nia Legislature, Joint Com. on Higher Education, The Chal
lenge of Achievement l A Report on Public and Private 
Higher Education in California, su p ra , at 66-67; California 
Legislature, Assembly Permanent Subcom. on Postsecondary 
Education, Unequal A ccess To College, su p ra ;  California 
Postsecondary Education Commission, Equal Educational Op
portunity In California Postsecondary Education : Part I 4-6 
Appendix B at B-l—B-Il (1976).

89 See, e.g., California Legislature, Joint Com. on the Master
Plan For Higher Education, Report, su p ra , at 37-38.

29a

Appendix B

cultural conditions in the early experience of minority 
persons leave them unable to measure up to the admissions 
standards of the four-year segments.” 90

“ . . . [0]ne of the most serious blocks to participa
tion in higher education for minority students occurs 
in the secondary educational system. Students from 
[black and Mexican-American] minority groups tend 
to be systematically underrepresented at each succes
sive level of educational attainment.” 91

“The importance of the high school experience on the 
[minority] student’s opportunity to attend college cannot 
be too heavily emphasized.” 92 Thus, while the proportion 
of high school seniors eligible for entrance into the Uni
versity of California and State University and Colleges 
(on the basis of grades and test scores) increases Avith 
family income for all students, the proportion of minority 
seniors is consistently lower.93 The percentage of eligible

90 Id., at 47.
91 California Coordinating Council For Higher Education, 

H. K itano & D. Miller, An Assessment of Educational Op
portunity Programs in California Higher Education, supra, 
at 3.

92 California Legislature, Joint Com. on the Master Plan 
For Higher Education, R. Lopez & D. Enos, Ciiicanos and Pub
lic Higher Education in California 14 (1972). This report is 
one of a series that analyzes problems and available affirmative 
action efforts from the perspective of various minority groups. See 
also, California Legislature, Joint Com. on the Master Plan 
For Higher Education, R. Yosktoka, Asian-Americans A nd Pub
lic Higher Education In California (1973); California Legis
lature, Joint Com. on the Master Plan For Higher Education, 
Nairoibi Research Inst., Blacks and Public Higher Education 
in California (1973).

93 California Coordinating Council For H igher Education, 
H. Kitano & D. Miller, A n Assessment of Educational Op-



4

30a

Appendix B

minority race seniors who actually matriculate also is a 
fraction of the percentage of eligible white seniors.* 94 95 Such 
trends persist in the college and post-college careers of 
minority students.96

In a comprehensive review of the State of California’s 
higher education affirmative action programs, the Califor
nia Postsecondary Commission concludes that more rather 
than less is required, E qual  E d ucational  O pp o r tu n ity  In 
C alifo rn ia  P ostsecondary E d u c a t io n : P art  II (publica
tion pending).

i
Ii

i
j

portunity Programs in California Higher Education, supra, 
at 4-5; California Legislature, Assembly Permanent Subcom. 
on Postsecondary Education, Unequal A ccess to College, su
pra, at 7 et seq.; California Postsecondary Education Commis
sion, Equal Educational Opportunity in California Postsecon
dary Education: Part I, supra, at 5-6.

94 Id.

95 California Coordinating Council F or H igher E ducation,
II. K itano & D. M iller, A n A ssessment of E ducational Op
portunity P rograms in  California H igher E ducation, supra,
at viii; authorities cited pupra at p. 29a, n. 92.

31a

APPENDIX C

Morbidity and Mortality Statistics 
of the Black Population

The life expectancy of white males is six years longer 
than black males; white females are expected to live 5.4 
more years than black females.96 There is approximately 
a 200% difference in the infant mortality of whites and 
non-whites.97 Maternal deaths among non-whites are 3V£ 
times that of whites.98 The fetal death rate for non-whites 
is 1% times greater for blacks than for whites and the gap 
between the two groups was greater in 1974 than in I960.99 
According to statistics gathered in 1973, among children 
aged 1 to 4, minority children die at a rate 70% higher

96U.S. B ureau of the Census, Statistical A bstract of the 
United States, 1976, supra at 60. (Statistic is as of 1974).

97 Id. at 64. This statistic represents death in infants under 1 
year old, exclusive of fetal deaths. The incidence of all non-white 
deaths was 28.5 per 1000 live births; infant mortality in 1971 
among blacks 30.3 per 1000 live births; for whites 17.1 deaths per 
live births. A merican P ublic H ealth A ssociation, M inority 
H ealth Chart B ook 36 (1974).

08 U.S. B ureau of the  Census, Statistical A bstract of the 
United States, 1976, id.

99 Id. Neo-natal death (death between birth and 28 days) per
1,000 live births were as follows:

Male Female
blacks 23.3 18.5
whites 14.8 11.2

Death of post-natal infants per 1000 (death between 28 days and 
1 year) in 1971 were:

Male Female
blacks 10.0 8.7
whites 4.5 3.5

Minority Health Clmrtbook, id. at pp. 39-40. Chart is based on 
unpublished data from Division of Vital Statistics, National Center 
for Health Statistics, Dept, of HEW, 1974.



4

V

Appendix C

than white; in the 5 to 9 age group minority children die 
at a rate 40 percent higher than white children.100

Blacks also suffer from serious disease at a far higher 
rate than whites. The incidence of tuberculosis among 
blacks is 31.4 per 100,000; among whites, it is 3.9 per 
100,000.101 Diabetes and cancer of the cervix (both of which 
are controllable) are three times more prevalent among 
blacks.102 Three times as many blacks as whites suffer from 
high blood pressure103 and when blacks do get ill, the inci
dence of death from disease far surpasses the white mor
tality rate for the same disease.104 105

Studies have established that illness and death among 
blacks, notably fetal, infant and maternal morbidity and 
mortality, are directly related to lack of health care.106

100 National Center for Health Statistics, Department of Health, 
Education and Welfare, Monthly Vital Statistics Report, Summary 
Report Final Mortality Statistics, 1973, Table 3.

101 Tunley, T he A merican H ealth Scandal 40-41 (1066).
102 Id.
103 Mills, Each One Teaches One, J ourn. B lack H ealth P er

spectives 5-10 (Aug.-Sept. 1974).
104 Darity, Ilealth and Social Problems of the Black Community, 

J ourn. op B lack H ealth P erspectives (June/July 1974), Table 
13, p. 46.

105 “ For pregnant women, the adverse effects of chronic states
of illness induced by such diseases as syphilis, tuberculosis, and
diabetes, or resulting from poor nutritional status can be mitigated
if these conditions are identified and treated during early preg
nancy. Other adverse conditions . . . may develop later in preg
nancy or immediately before labor. For these reasons, the initiation 
of prenatal care in early pregnancy and the continuous medical 
supervision of the pregnant woman throughout the gestational 
period are needed to ensure both the optimum development of the 
fetus and the well-being of the mother.”  P ublic H ealth Service, 
U.S. D ept, op H ealth, E ducation & W elfare, Selected Vital 
and Ilealth Statistics in Poverty and Nonpoverty Areas of 19

32a 33a i

Appendix C

While the level of inadequate prenatal care is higher in 
poverty areas than in higher income areas for all races, the 
proportion of non-white women receiving no prenatal care 
is greater than that of whites.106 Mothers who have had no 
prenatal care are three times more likely to give birth to 
infants with low birth weights,107 which is associated with 
almost half of infant deaths, and substantially increases 
the likelihood of birth defects.108 With adequate facilities

Large Cities. United States, 1969-71. 13; See, Iba Niswander & 
Woodville, Relation of Prenatal Care to Birth Weights, Major Mal
formations, and Newborn Deaths of American Indians, 8 H ealth 
Services R eports, 697-701 (1973) ; Weiner & Milton, Demographic 
Correlations of Low Birth Weight, 3 A m. J. E pidemiol. 260-272 
(Mar. 1970); K essner, et al., Contrasts in Ilealth Status, Vol. I—  
Infant Death: An Analysis of Maternal Risk and Ilealth Care 
(1973).

106 Selected Vital and Health Statistics in Poverty and Non- 
poverty Areas of 19 large Cities, U.S. 1969-1971, Id.

107 National Center for Health Statistics, U.S. Dept, o f Health, 
Education and Welfare, Monthly Vital Statistics Reports, Sum
mary Report, Final Mortality Statistics 1973, p. 8 .

108 National Foundation, Annual Report 1974, p. 9. See Mon
tague, P renatal Influences (1962).



auaaat tM tasetm ouiudm

v

34a

Appendix C

and doctors, the high incidence of infant and maternal 
death and illness is dramatically reduced.109

109 See studies in Providence (Maternal and Child Care Service, 
U.S. Department of Health, Education & Welfare, Promoting the 
Health of Mothers and Children, Fiscal Year 1972, p. 6 ) ;  Lowndes 
County, Alabama, Bolivar County, Mississippi (Davis, A  Decade 
" f  Policy Developments in Providing Health Care for Low Income 
Families in Ilaveman, R. ed., A  D ecade op F ederal A nti-Poverty 
P o licy : A chievements, F ailures and L essons (1976) 47-48); 
and Boston (Robertson, et al., Toward Changing the Medical Care 
System: Report of an Experiment, in Ilaggarty, The Boundaries 
of Health Care, Reprinted from Alpha Omega Honor Society, 
P haros op A lpha Omega A lpha , Vol. 35, pp. 106-111 (1972) 
which established that greater access to medical care resulted in 
reduction of infant and maternal mortality of 50% even though 
poor housing, nutrition and other incidents of poverty remained 
stable in the population. See also, studies in Denver and Birming
ham discussed in Roger, The Challenge of Primary Care, in 
D aedalus (Winter 1977) p. 88, where results were similar.
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