Bakke v. Regents Brief for the United States as Amicus Curiae

    No. 76-811

JAMES M. NAIRfT, III
ASSOCIATE-COUNSEL

Jit the Supreme <£ourt of the 'fimtei states
O ctober T erm , 1977

T h e  R egents of t h e  U niversity of C alifornia ,
PETITIONER

V.
A llan  B aickb

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF CALIFORNIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

GRIFFIN B. BELL,
Attorney General,

WADE H. McCREE, Jr.,
Solicitor General,

DREW S. DAYS, III,
Assistant Attorney General, 

LAWRENCE G. WALLACE,
Deputy Solicitor General, 

FRANK H. EASTERBROOK,
Assistant to the Solicitor General,

BRIAN K. LANDSBERG,
JESSICA DDNSAY SILVER,

Attorneys,
Department of Justice, 

Washington, D.C. 20530.



I N D E X

Page
Questions presented________________________________ 1
Interest of the United States________________________  1
Statem ent--------------------------   3

A. F ac ts_____________________________________  3
1. The regular admissions process--------------- 5
2. The special admissions program._________  7

a. Facial composition of applicants and
students _____________________ 9

b. Eligibility for the special admissions
program ____________________  10

c. The process of selection__________  12
d. Purpose of the program_________  11

3. Respondent’s application_______________  15
B. The state courts’ opinions_____________________ 17

1. The Superior Court____________________ 17
2. The Supreme Court of California________ 18

Introduction and summary of argument_______________  23
Argument _______________________________________  30

I. Race may be taken into account to counteract the
effects of prior discrimination______________  30

A. This Court has held that minority-
sensitive decisions are essential to 
eliminate the effects of discrimination 
in this country__________________ 30

B. Both the legislative and executive
branches of the federal government 
have adopted minority-sensitive pro­
grams for the purpose of eliminating 
the effects of past discrimination___  33

(i)

245—950— 77- 1



II

Argument—Continued
II. The University could properly conclude that 

minority-sensitive action was necessary to 
remedy the lingering effects of past discrimi- page 
nation --------------------------------------------------  38

A. Minority-sensitive relief is not limited
to correction of discrimination perpe­
trated by the institution offering 
relief _________________________  38

B. Discrimination against minority groups
has hindered their participation in the
medical profession---------------------— 41

III . The central issue on judicial review of a minority- 
sensitive program is whether it is tailored to 
remedy the effects of past discrimination---------- 50

A. A program is tailored to remedy the
effects of past discrimination if it 
uses race to enhance the fairness of 
the admissions process--------------  —  55

B. There is no adequate alternative to the
use of minority-sensitive admissions
criteria________________________  68

IV. The Supreme Court of California applied incor­
rect legal standards in evaluating the constitu­
tionality of the special admissions program—  66

A. The declaratory judgment forbidding
the use of minority-sensitive admis­
sions programs should be reversed—  66

B. Whether respondent was wrongfully
denied admission to the medical 
school should not be decided on the
present record___________________  67

Conclusion---------------     <4
Appendix A------------------------------------------   1A
Appendix B---------------------------------------------------------- 3A
Appendix C_________________________      4A
Appendix p ______________________________________  9-4.



Ill

CITATIONS

Cases: page
Albemarle Paper Go. x. Moody, 422 U.S. 405_______24,32
Anderson x. Martin, 375 U.S. 399________________  30
Associated General Contractors of Massachusetts, Inc. 

x. Altschuler, 490 F. 2d 9, certiorari denied, 416 U.S.
957 ________________________________________  37

Boston Chapter, N.A.A.C.P., Inc. x. Beecher, 504 F.
2d 1017, certiorari denied, 421 U.S. 910___________  30

Brown x. Board of Education, 347 U.S. 483_________ 41
Galifano x. Webster, No. 76-457, decided March 21,

1977 --------------------------------------------------- 28,39, 64-65
Castaneda x. Partida, No. 75-1552, decided March 23,

1977 _______________________________________  54
Contractors Association of Eastern Pennsylavina x. 

Secretary of Labor, 442 F. 2d 159, certiorari denied,
404 U.S. 854 ________________________________ 34

Craig x. Boren, 429 U.S. 190_____________________ 54, 65
Cypress x. Newport News General and Nonsectarian

Hospital Association, 375 F. 2d 648_____________  48
Dayton Board of Education x. Brinkman, No. 76-539,

decided June 27, 1977_________________________  31
DeFunis x. Odegaard, 82 Wash. 2d 11, 507 P. 2d 1169,

vacated as moot, 416 U.S. 312___________________  19
Dothard x. Rawlinson, No. 76—422, decided June 27,

1977 ------------------------------------------------------------ 40
Drummond x. Acree, 409 U.S. 1228____ ____________ 53
Endo, Ex parte, 323 U.S. 283____________________  47
Franks x. Bowman Transportation Co., 424 U.S. 747__24, 31
Gaston County x. United States, 395 U.S. 285________ 56
Georgia x. United States, 411 U.S. 526____________  32
Green x. County School Board, 391 U.S. 430________ 30,54
Griggs x. Duke Power Co., 401 U.S. 424____________  32
Hazelwood School District x. United States, No. 76-255,

decided June 27, 1977__________ _______________  61
Hernandez x. Texas, 347 U.S. 475________________  41
International Brotherhood of Teamsters x. United

States, No. 75-636, decided May 31,1977_______31,40, 55
Kahn x. Shevin, 416 U.S. 351____________________  40
Keyes x. School District No. 1, Denver, Colorado, 413 

U.S. 189. 41



IV

Cases—Continued Page
Lav v. Nichols, 414 U.S. 563---------------------------------  41
Limnark Associates, Inc. v. Township of Willingboro,

No. 76-357, decided May 2,1977_________________ 25,39
Lucas v. Forty-Fourth General Assembly of Colorado,

377 U.S. 713_________________________________  54
Mathews v. Lucas, 427 U.S. 495-----------------------------  26,51
McDaniel v. Barresi, 402 U.S. 39__________________  40
McDonald v. Sante Fe Trail Transportation Co., 427

U.S. 273____________________________________  52
MilliJcin v. Bradley, No. 76-447, decided June 27,1977_ 56
Missouri ex rel. Gaines v. Canada, 305 U.S. 337-------- 44
Morales v. New York, 396 U.S. 102-----------------------  23
Morton v. Mancari, 417 U.S. 535---------------------------  54
Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 274________________________  72
North Carolina State Board of Education v. Swann,

402 U.S. 43__________________________________24,31
Northeast Construction Co. v. Romney, 485 F. 2d 752_ 34
Otero v. New York City Housing Authority, 484 F. 2d

1122_______________________________________  37
Porcelli v. Titus, 431 F. 2d 1254, certiorari denied, 402

U.S. 944____________________________________  37
Rios v. Enterprise Association, 501 F. 2d 622----------  53
Rossetti Contracting Co. v. Brennan, 508 F. 2d 1039_ 34
Simpkins v. Moses H. Cone Memorial Hospital, 323 F.

2d 959, certiorari denied, 376 U.S. 938___________  47
South Carolina v. Katzenbach, 383 U.S. 301________ 33
Spring-field School Committee v. Barksdale, 348 F. 2d

261________________________________________  37
Strauder v. West Virginia, 100 U.S. 303___________  37
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1__________________________________  30
Trafficonte v. Metropolitan Life Insurance Go., 409

U.S. 205____________________________________  39
Trans World Airlines, Inc. v. Hardison, No. 75-1126,

decided June 16,1977--------------------------------------- 52
United Jewish Organizations of Williamsburgh, Inc.

v. Carey, 430 U.S. 144_____________  24,32,40,50, 51, 60
United States v. Antelope, No. 75-661, decided April 19,

1977 54



V

Cases—Continued
United, States v. Montgomery County Board of Educa- page

tion, 395 U.S. 225____________________________  30
Weinberger v. Weisenfeld, 420 U.S. 636------------------- 50
Wheeler v. Barrera, 417 U.S. 402__________________  23
Tick Wo v. Hopkins, 118 U.S. 356________________  47

Constitution, statutes, and regulations:
United States Constitution:

Thirteenth Amendment_____________________  37
Fourteenth Amendment________________ 17,18,51,52
Fifteenth Amendment_______________ *______  37

Civil Eights Act of 1964:
Title IV, 78 Stat. 248, 42 U.S.C. 2000c-6_______ 3
Title VI, 78 Stat. 252, 42 U.S.C. 2000d et seq____  34

42 U.S.C. 2000d____________ ____________ 3
42 U.S.C. 2000d - l___ ______ ____________  35-

Title V II, 78 Stat. 253, as amended by the Equal 
Employment Opportunity Act of 1972, 86 Stat.
103, 42 U.S.C. (and Supp. V) 2000e et seq.:

Section 703 (j ), 42 U.S.C. 2000e-2  (j ) _______ 53
Section 715, 42 U.S.C. (Supp. V) 2000e-14— 36

Title IX , 78 Stat. 266, 42 U.S.C. 2000h-2_______ 3
Civil Eights of 1974, 86 Stat. I l l ,  Section 715, as

amended, 42 U.S.C. (Supp. V) 2000e~14___ ______  36
Emergency School Aid Act, 86 Stat. 354, as amended,

20, U.S.C. (Supp. V) 1601 et seq________________  43
Public Works Employment Act of 1977, Pub. L. 95-28,

91 Stat, 116-117-____________________ ________  2,33
42 U.S.C. 1981_______________________________... 52
42 U.S.C. 3766(b)________________    53
41 C.F.E, 60-2.10______________________________ 34
45 C.F.E. Part 80— _________ _________________  35
45 C.F.E. 80.3(b) (6) (i-i)____________ ___________ 2,35
45 C.F.E. 80.5( j)_______________________________ 35

Miscellaneous:
AAMC, Medical School Admission Requirements 1978-

1979 (1977)— ——.___________________________
Association of American Medical Colleges, Medical 

School Admission Requirements 1978-1979 (1977)— 48,49 
Brest, The Supreme Court, 1975 Term, Forward: In  

Defense of the Antidiscrimination Principle, 90 
Harv. Law Eev. (1976)_______________________ 60



VI

Miscellaneous—Continued
Carroll, A 0 omparative Analysis of Three Admission/ 

Selection Procedures (It.E.W. Technical Paper 77- page
D4) (1977)---------------------------------------------------- 66

Comment, The Philadelphia, Plan: A Study on the 
Dynamics of Executive Power, 39 U. Chi. L. Rev.
732 (1972)_________________________________   34

122 Cong. Rec. Sl.7320 (daily ed., September 30,1976) _ 53
123 Cong. Rec. II1430-II 1*137 (daily ed., February 24,

1977) --------------------------------------------------- _____ 33
123 Cong. Rec. H6099-H6106 (daily ed., June 17,

1977) ----------------------------------------------------------- 34
Curtis, Blacks, Medical Schools, and Society (1971)_45,48
Dube, Datagram,: TJ.S. Medical Student Enrollment, 

1968-1969 Through 1972-1973, 48 J. Med. Educ. 293
(1973) -------------------------------------------------------- 46,47

Dube, Datagram: U.S. Medical Student Enrollment, 
1972-1973 Through 1976-1977, 52 J. Med. Educ. 164
(1977) _______________________________    47

Executive Order 11246, 30 Fed. Reg. 12319, as amended
by Executive Order 11375, 32 Fed. Reg. 14303___ 2, 33, 34

41 Fed. Reg. 38814-38815____________ ___________ 2, 36
Gordon, Descriptive Study of Medical School Appli­

cants, 1975-1976 (1977)_________ ____ _________  47
Greenawalt, Judicial Scrutiny of “Benign” Racial 

Preference in Law School Admissions, 75 Colum. L.
Rev. 559 (1975)______        51

Haug and Martin, Foreign Medical Graduates in the
United States, 1970 (1971)_____________________ 46-47

Johnson, Smith and Tarnoff, Recruitment and. Prog­
ress of Minority Medical School Entrants 1970-1972,
50 J. Med. Educ. 713 (1975 Supp.)____ _____ ___48,49

Kaplan, Equal Justice in A n  Unequal World: Equality 
for the Negro—The Problem, of Special Treatment,
61 Nff. U. L. Rev. 363 (1966)__________________  51

Melton, The Negro Physician, 43 J. Med. Educ. 802
(1968) ____________________ __________________ 47,48

Morals, The History of the Negro in Medicine
(1967) _______________________________  44,45,47,48

Murray, States' Laws on Race and Color (1951)_____  44
Odegaard, Minorities in Medicine (1977)_______  49



VII

Miscellaneous—Continued
O’Neil, Preferential Admissions: Equalizing the Ac­

cess of Minority Groups to Higher Education, 80 pag9
Yale L. J. 699 (1974)_________________________  51

Policy Statement on Affirmative Action Programs for 
State and Local Government Agencies, 41 Fed. Reg.
38811 ________________________________   2

Reitzes, Negroes and Medicine (1958)_____   45
Report of the Task Force to the Inter-Association 

Committee on Expanding Educational Opportu­
nities in Medicine for Blacks and Other Minority
Students (1970)_____________________________  49

U.S. Bureau of the Census, 1970 Census, Yol. I, Char­
acteristics of the Population (1973):

California (Part 6)______________________ 4,43,70
United States Summary_______________  41,42,45,46

U.S. Bureau of the Census, Current Population Re­
ports, Persons of Spanish Origin in the United
States: March 1976___________________________  42

U.S. Bureau of the Census, Current Population Re­
ports, The Social and Economic Status of the Black
Population in the United States 197Jj (1975)______ 42

U.S. Bureau of the Census, 1970 Census, Subject Re- 
. ports'- Final Report PC(2)-7A, Occupational Char­
acteristics; Final Report PC (2)AC, Persons of
Spanish Origin (1973)________________________ 46

U.S. Bureau of the Census, Subject Reports-Japanese,
Chinese, and Filipinos in the United States_______ 42

U.S. Department of Health, Education, and Welfare,
Office of Health Resources Opportunity, Identifica­
tion of Problems in Access to Health, Services and
Health Careers for Asian Americans (1976)______ 46

Waldman, Economic and Racial Disadvantage as Re­
flected in Traditional Medical School Selection Fac­
tors : A  Study of 1976 Applicants to U.S. Medical
Schools (1977)____________ _________________  43

Wellington and GyOrffy, Draft Report of Survey and 
Evaluation of Equal Educational Opportunity in 
Health Profession Schools:

Table I I  (1975)__________ ________________  49
Table V III__________ ________ ____________1 49, 50



Jfit tht ih WnW states
October T erm , 1977 

No. 76-811

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

V.

A llan  B ajcke

ON WRIT OF CERTIORARI TO THE SUPMERE COURT 
OF CALIFORNIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTIONS PR ESEN TED

1. Whether a state university admissions program 
may take race into account to remedy the effects of 
societal discrimination.

2. If so, whether, as applied to respondent, peti­
tioner’s admissions process operated in a constitution­
ally permissible manner.

IN T E R E ST  OP T H E  U N IT E D  STATES

Congress and the Executive Branch have concluded 
that race must sometimes be taken into account in 
order to achieve the goal of equal opportunity. They 
have adopted numerous minority-sensitive programs,

(i)



2

which are collected in Appendix A to this brief. They 
also have established several programs to assist per­
sons handicapped by their language background (see 
Appendix B to this brief). For example, the Depart­
ment of Commerce provides technical and financial 
assistance to promote enterprises owned by members 
of minority groups, and the Department of Health, 
Education, and Welfare provides financial assistance 
to help colleges and universities increase the number 
of minority faculty, students, and investigators en­
gaged in biomedical research. The Public Works Em­
ployment Act of 1977 provides that applicants for 
public works grants must give assurances that at least 
ten percent of each grant will be expended “for mi­
nority business enterprises” (Pub. L. 95-28, 91 Stat. 
116, 117). Moreover, pursuant to Executive Order 
11246, 30 Fed. Reg. 12319, as amended by Executive 
Order 11375, 32 Fed. Reg. 14303, enterprises holding 
federal contracts must take affirmative action to cor­
rect disproportionately low employment of racial mi­
norities. These and other programs might be affected 
by the Court’s disposition of this ease.

The United States has concluded that voluntary ef­
forts to increase the participation of racial minorities 
in activities throughout our society that were form­
erly closed to them should be encouraged. See the 
Policy Statement on Affirmative Action Programs for 
State and Local Government Agencies, 41 Fed. Reg. 
38814. The United States also encourages appropriate 
minority-sensitive efforts in programs supported by 
federal funds (see, e.g., 45 C.F.R. 80.3(b) (6) (ii)).



3

Moreover, several departments and agencies of the 
Executive Branch have the responsibility to enforce 
legislation passed by Congress to protect persons from 
unlawful discrimination on account of race. For ex­
ample, the Attorney General may intervene in actions 
of general public importance involving assertions of 
racial discrimination; he may also sue upon a claim 
that any person has been denied admission to a public 
college because of race, and he may bring suit to 
prevent racial discrimination in federally-assisted 
programs. See the Civil Rights Act of 1964, 78 Stat. 
248, 252, 266, 42 U.S.C. 2000c-6, 2000d and 2000h-2. 
The Court’s decision in this ease could affect that en­
forcement responsibility.1

The United States is committed to achieving equal 
opportunity and preventing racial discrimination. 
.For the reasons discussed in this brief it has con­
cluded that the achievement of both goals can be at­
tained by the use of properly designed minority- 
sensitive programs that help to overcome the effects 
of years of discrimination against certain racial and 
ethnic minorities in America.

STATEM ENT

A. FACTS

The Medical School of the University of California 
at Davis opened in 1968. The entering classes of that 
year and of the following year included one Chicano, 
two black, and 14 Asian-American students out of a

1 Respondent’s claim was based in part upon Section 2000d.



4

total of 100 (R. 215-216).2 This proportion compared 
unfavorably with the aggregate proportion of these 
three groups to the general population of California— 
25.7 percent.3

In  1969 the faculty of the Medical School adopted 
a resolution establishing a special admissions pro­
gram for disadvantaged applicants (R. 216). Under 
that program, sometimes called the “task force” pro­
gram, between 1970 and 1974 the school admitted 
71 minority persons: 26 blacks, 33 Chieanos and 12 
Asian-Americans (R. 216-218). An additional 49 
minority persons, including 41 Asian-Americans, were 
admitted through the regular admissions process dur­
ing those years (R. 216-218). Of the 451 students 
entering between 1970 and 1974, 120 (or 26.6 per­
cent) were members of minority groups.

On June 20, 1974, respondent brought suit in Cali­
fornia Superior Court alleging that as a result of the 
special admissions program the Medical School had, 
in 1973 and 1974,4 denied him admission solely be-

2 “R.” refers to the record that has been filed with the Clerk of 
this Court.

3 U.S. Bureau of Census, 1970 Census, Yol. I, Characteristics of 
the Population, California, Part 6, p. 6-387 (1973). The percent­
ages of the population are: persons of Spanish language or sur­
names, 14.7 percent; blacks, 7.0 percent; Asian-Americans (per­
sons of Japanese, Chinese or Filipino descent), 2.65 percent. 
American Indians made up 0.45 percent of the California popula­
tion in 1970. Spanish language or surnamed persons may be of any 
race. For computation purposes Spanish-speaking or surnamed 
persons are assumed to be white.

4 We refer throughout this brief to medical school classes by the 
year in which the class entered. Applications for an entering class 
are received beginning in July of the year before the one in which 
the class will enter (R. 150).



5

cause of his race. He sought declaratory relief and 
an order to compel his admission (App. 1-4). The 
defendants filed a cross-complaint, seeking a declara­
tion that the special admissions program was lawful 
(App. 9-11).

Counsel agreed to dispense with an evidentiary 
hearing and to submit the ease to the court on the 
facts set out in the pleadings and in the declaration 
and deposition (with exhibits) of George H. Lowrey, 
Chairman of the Admissions Committee and Associate 
Dean of Student Affairs at Davis (R. 282).

1. T H E  REGULAR ADMISSIONS PROCESS

The admissions committee at the medical school 
is composed of faculty and students chosen by the 
Dean of the school (R. 62, 148-149). Several fac­
ulty members screen each application to determine 
whether an applicant shows sufficient promise to be 
invited for an interview (R. 62, 150). An interview 
is a necessary step in the application process; no 
one is admitted without being interviewed. No ap­
plicant in the regular program with a grade point 
average below 2.5 is interviewed (R. 63, 151).5 Al­
though other factors are considered in deciding who 
is interviewed, there are no written standards (R. 
151). Interviews are conducted by one faculty mem­
ber of the admissions committee and, since 1974, one 
student member. The interviewers write summaries 
evaluating each applicant’s potential contribution to

5 Although it is not made explicit, it appears from the record 
that grade point averages are scaled from 0.0 to 4.0 (E. 68).



6

the medical profession. On the basis of the file (in­
cluding grades and test scores) and interview sum­
maries, the interviewers and four other committee 
members each rate each applicant on a scale of 0 to 
100 (R. 155-159).

All committee members attend an orientation ses­
sion in which they discuss the importance of various 
factors, including the basic requirements for admis­
sion, the depth of study in science and the humanities, 
the quality of undergraduate training, and personal 
information including letters of recommendation, 
extracurricular activities, personal comments and 
career plans (R. 62).6 Each numerical rating (also 
called a “benchmark score”) is a subjective evaluation 
of the applicant’s potential contribution to the medi­
cal profession, and the rating is intended to reflect 
all of the salient factors, including not only those 
mentioned above but also character, motivation, con­
templated type of practice, and contemplated location 
of practice (R. 64-65, 180).7 Committee members also 
consider objective criteria such as college grade point 
average and scores on the Medical College Admission 
Test (MCAT), a four-part standardized test taken 
by medical school applicants, in the course of evaluat-

6 The record does not reveal whether there are written guidelines 
for evaluating the applicants.

7 The record indicates that some preference is given to appli­
cants who are from (and expi*ess an interest in returning to prac­
tice in) areas of northern California that are in need of physicians; 
preference is also given to spouses of accepted applicants (It. 64-65, 
183). The record does not indicate what weight these factors carry 
in the selection process.



7

ing each applicant and assigning a benchmark score 
(R. 152). The record does not indicate the relative 
weight of these factors in the selection process.

The combined numerical rating is the “major 
factor” in selection, but it is not rigidly followed 
(R. 63, 182-183). Because acceptance letters are 
sent periodically, a rating that will warrant admis­
sion early in the selection process may not do so 
later (R. 64). In addition, there are two situations in 
which an applicant with a lower numerical rating 
may be chosen over one with a higher score. First, a 
file may be updated with information received after 
the rating is made. The decision to “accept people 
out of the order of their numerical rating” because of 
added information is made by the full admissions 
committee (R. 64, 182-183). Second, a list of those 
whose scores are “very close to admission” is created 
to fill places that may be available because of an 
unexpectedly low rate of acceptance by those offered 
admission, or because of attrition; the Dean of Ad­
missions selects from this list those whom he believes 
will bring “ special skills or balance” to the class (R. 
64). See Pet. App. 8a.

2 . T H E  SPECIAL ADMISSIONS PROGRAM

Sixteen percent of the places in each class are 
reserved for applicants admitted through the special 
admissions program.8 The special admissions pro-

8 Before 1971 the entering class was 52, and eight places were 
earmarked for the special admissions program; in 1971 the enter­
ing class was increased to 100, and the special admissions program 
to 16 (R. 164,215).



8

gram is administered primarily by a special admis­
sions committee, comprised principally of faculty and 
students who are members of minority groups (R. 
161-163, 165, 169, 251-252). Applicants referred to 
the special admissions committee could be inter­
viewed even though their grade point averages would 
not have justified interviews by the regular commit­
tee (R. 175). The special admissions committee 
selected applicants that, in its view, should be ad­
mitted, and it referred their files to the regular ad­
missions committee, which made the final admission 
decision (R. 165).

Although there is some evidence that the 16 slots 
earmarked for special admissions could be varied 
when that was justified by unexpected circumstances,9 
Dr. Lowrey stated that the special admissions com­
mittee “ would continue to approve and process Task 
Force applications until 16 had been accepted” (R.. 
168). The trial court found that 16 places were re­
served for minority applicants (Pet. App. 114a- 
115a), and the University did not challenge that 
finding on appeal (id. at 2a n. 1, lO a-lla).

9 Only 15 places were filled from the special admissions program 
in 1971 and in 1974 (Mi. 217-218). Petitioner explains (Br. 3-4. 
n. 5) that in 1974 one person admitted through the special admis­
sions program withdrew after he had accepted the offer of admis­
sion, and that this place was filled by an applicant to the regular 
admissions program even though there was a special admissions 
waiting list.



9
a. Racial composition of applicants and students

The record includes the following corrected sta­
tistics regarding regular and special admissions (R. 
214-215, 216-218, 205, 207, 219) :

Referred
Total to special Interviews Offers Matriculations
appli- commit------------------------- ------------------------  —--------------------

Entering class cants tee Total Special Total Special Total Special

1968_______   564 — — 104 — 48 —
1969-................   1,038 — — 99 — 52 —
1970 ______  1,338 104 — 80 — 52 8
1971 .....  2,433 146 — 160 — 100 15
1972 ...... ..............  1 2,046 169 628 64 192 — 100 16
1973 .....................  2,464 2 297 886 71 s 185 * 20 * 100 16
1974.........................  3,737 628 550 88 157 26 99 * 16

1 This figure is reported as 2,050 as of May 8,1973 (R. 207).
2 This figure is reported as 291 as of May 8, 1973 (R. 205).
3 This figure is reported as 162 as of May 8, 1973 (R. 207).
4 This figure is reported as of May 8,1973 (R. 205). Dr. Lowrey indicated that there were 32 special 

admissions offers (R. 69), and this may reflect later data.
5 But see note 9, supra.

The racial composition of students enrolled in the 
Medical School was (R. 174, 216-218) :

Applications referred to Race of regular admittees
special committee —--------------------------------------

— ------------------------------ Asian-
Entering class Total Minority Black Chicano American

1968 __     — 122 — — 3
1969 ...................................... — 1 34 2 1 11
1970—..............___..................... 104 104 0 0 4
1971 ............................      146 140 1 0 8
1972 .............................................. 169 148 0 0 11
1973 ...........................................  297 224 0 2 13
1974 ....................................  628 456 0 4 2 5

Race of special admittees 
Minority admittees — -------------------------------------

.—.---------------------------— Asian-
Entering class Total Special Black Chicano American

1968........................................... 3 — — — —
1969.................    !4 — — — —
1970....................................   12 8 5 3 —
1971........        24 15 4 9 2
1972.......       27 16 5 6 5
1973-..............    31 16 6 8 2
1974....................................... . 3 26 * 16 6 7 3

1 These figures represent minority applicants prior to institution of the special admissions program.
2 One American Indian was also admitted through the regular process in 1974 (R. 218).
8 The document in the record indicates 25 but appears to reflect an error in addition (R. 218).
* Petitioner contends that there were only 15 special admittees in 1974. See note 9, supra.

245-950— 77------2



10

b. Eligibility for the special admissions program

Each applicant’s interest in the special admissions 
program is initially ascertained from his application 
for admission. The 1973 application form asked each 
applicant whether he wished to be considered by a 
special admissions subcommittee for applicants from 
“economically and educationally disadvantaged back­
grounds” (R. 232). In  1974 Davis began using a 
nationwide application processing service, whose 
standard application asked whether the applicant 
wished to be considered as a “minority group appli­
cant” (R. 65, 197).10 Only those who responded affirm­
atively were referred to the special admissions com­
mittee (R. 65, 171). In 1974 applicants were not asked 
whether they wished to be considered for a program 
for the disadvantaged (R. 197). Applications of 
whites, blacks, Chicanos, American Indians and Asian- 
Americans were referred to the special admissions 
committee (R. 65, 216-218).

The special admissions program is open only to 
those who are considered disadvantaged, a deter­
mination made by the chairman of the special ad­
missions committee. The chairman makes this deci­
sion on the basis of the application, which reveals 
whether the applicant was granted a waiver of appli-

10 The term “minority” was not defined. A separate question on 
the application listed the following categories, in addition to white, 
under the question “How do you describe yourself?” : Black/Afro- 
American, American Indian, Mexican-American or Chicano, 
Oriental/Asian-American, Puerto Rican (Mainland), Puerto 
Rican (Commonwealth), Cuban, Other (R. 197).



11

cation fee, was a participant in an educational oppor­
tunity program in college, worked during under­
graduate years or interrupted his or her education 
to support himself or herself or family members, 
and the occupation and educational level of the appli­
cant’s parents (R. 65). Applicants from minority 
backgrounds who are not considered disadvantaged 
are referred to the regular admissions process 
(R. 66) A

Dr. Lowrey stated that the program was open to 
all disadvantaged applicants, but that membership 
in a minority racial group was considered “as an 
element which bears on economic or educational dep­
rivation” (R. 65-66). I t is not clear what weight 
race is given in the determination that a person is or 
is not disadvantaged. Counsel for the Medical School 
stated (Pet. App. 92a) that “minority status is * * * 
considered as one factor in determining a disadvan­
taged status,” but Dr. Lowrey explained that “ [i]n 
choosing among the disadvantaged applicants favor­
able weight is given to minority group membership in 
determining relative disadvantage because minority 
applicants from disadvantaged backgrounds labor 
under special handicaps in American society” (R. 67).

Written material distributed about the program 
characterizes it as one for disadvantaged students

11 See the tables at page 9, supra, which show that after 4l«r^ 
the special admissions program began many members of minority 
groups were also admitted through the regular admissions process. 
Of the 380 entering students so admitted, 41 (10.8 percent) were 
Asian-Americans, 6 (1.6 percent) were Chicanos, 1 (0.3 percent) 
was black, and 1 (0.3 percent) was American Indian.



12

and does not mention racial considerations (R. 65, 
195, 196, 248). Although many non-minority per­
sons applied for the program (R. 65, 216-218), every 
person admitted through it for the classes of 1970 
to 1974 was black, Chieano, or Asian-American (R. 
216-218). The record does not indicate whether any 
whites were interviewed or offered admission. The 
trial court found that no white applicant had ever 
been admitted through the program and that (Pet, 
App. 115a) “ [i]n practice this special admissions 
program is open only to members of minority races 
and members of the white race are barred from par­
ticipation therein.”

c. The process of selection

A special admissions committee, composed of stu­
dents and faculty the majority of whom, in 1973, 
were from ethnic minorities (R. 162-163, 169, 251- 
252), considers each application.12 The special admis­
sions committee reviews applications in the same 
manner as the regular admissions committee and as­
signs a numerical rating to each applicant (R. 66) .13

12 The Supreme Court of California stated (Pet, App. 6a) that 
the special admissions committee “consists of students who are all 
members of minority groups, and faculty of the medical school 
who ai*e predominantly but not entirely minorities.” Faculty mem­
bers of the special admissions committee also were members of 
the regular admissions committee (R, 196), although they served 
primarily on the special committee (R. 162,168).

13 Members of the special admissions committee were given no 
formal instructions on selection of students (R. 163), but they 
were given a statement on the purposes of the program (R. 163, 
196).



13

The chairman of the special admissions committee 
screens the applications to determine who will be 
invited for an interview (R. 66). The record does 
not disclose what criteria the chairman uses in mak­
ing this decision, but applicants with grade point 
averages lower than 2.5 are not automatically elimi­
nated (R. 175), and some have been admitted (R. 210, 
223).14

At appropriate intervals the chairman of the spe­
cial admissions committee refers several of the “most 
promising” special admissions applicants to the regu­
lar admissions committee with recommendations that 
they be admitted; the regular admissions committee 
reviews the applicants and determines whether to ac­
cept the special committee’s recommendations (R. 
66-67, 165-166). The regular admissions committee 
has in some cases rejected recommendations (R. 166- 
167).

The trial court found that (Pet. App. 115a) “ [ a p ­
plicants in the special admissions program are rated 
for admission purposes only against other applicants 
in this program and not against applicants under the 
general admissions program.” 15 That finding was not 
challenged on appeal, but the record does not indicate

14 In  1972, 37.9 percent of special applicants were interviewed, 
•compared with 30.0 percent of regular applicants. In 1973 the 
figures were 23.9 percent (special) and 37.6 percent (reg­
ular) ; in 1974 they were 14 percent (special) and 14.9 percent 
(regular) (see page 9, supra).

lo I t is not clear whether the court was referring to assignment 
of a numerical rating or comparative evaluation of applicants 
after ratings are assigned.



14

whether special applicants are compared with regular 
applicants whose applications are considered at the 
same time.

All those admitted are considered by the Medical 
School to be qualified to practice medicine and to 
contribute to the school and the medical profession. 
Dr. Lowrey stated (R. 67):

Every admittee to the Davis Medical School, 
whether admitted under the regular admissions 
program or the special admissions program, 
is fully qualified for admission and will, in the 
opinion of the Admissions Committee, contrib­
ute to the School and the profession.

d. Purpose of the program

Dr. Lowrey stated that it was the judgment of the 
faculty that (R. 67) :

the special admissions program is the only 
method whereby the school can produce a di­
verse student body which will include quali­
fied students from disadvantaged backgrounds. 

Dr. Lowrey believed that without the program there 
would be few disadvantaged minority students at Da­
vis (R. 67-68).16

Dr. Lowrey gave several reasons why the faculty 
had instituted the program: (1) the paucity of minor­
ity persons in the medical profession; (2) the bene­
fits to students and physicians of achieving diversity 
in the student body and the profession through ad­
mission of minority applicants; (3) the need to train

These statements were not challenged or refuted by 
respondent.



15

minority physicians who would serve the needs of 
disadvantaged minority communities by working in 
those communities and would encourage non-minor­
ity physicians to do so also;17 (4) the need to train 
physicians who would serve as examples to encourage 
younger persons from minority backgrounds to aspire 
to professional careers; and (5) the need to give 
special consideration to minority applicants because, 
as a result of poor education, economic burdens, and 
lack of family support, test scores and grades do 
not necessarily reflect their abilities (R. 67-69).

3. r e s p o n d e n t ’s  a p p l i c a t i o n

Respondent applied to Davis for the classes begin­
ning 1973 and 1974 (R. 231, 236). He did not request 
consideration in either year as a disadvantaged appli­
cant (R. 232, 236). He was granted an interview in 
both years (R. 69).

In 1973 the admissions committee gave respondent 
a “ benchmark” rating of 468 (R. 179-180),18 and he 
was comparatively high among regular applicants 
(R. 180).19 Respondent’s application was received late 
in the admissions process, however, and he was not 
interviewed until after a majority of the positions in 
the class (and 12 special admissions positions) had

17 Every applicant admitted through the special admissions pro­
gram has expressed an interest in practicing in a disadvantaged 
community (K. 68). I t  is not clear whether respondent expressed 
such an interest (It. 228).

18 The maximum possible rating that year was 500.
19 The record contains the following information regarding 

grade point averages and MCAT scores(R. 189-190, 210, 223) :



1 6

been filled (R. 64, 69-70). Dr. Lowrey recalled that 
regular admittees had ratings as low as 452. He stated 
that the “ average” rating of special admittees was 
probably 10 to 30 points below respondent’s, but that 
the overall “range * * * [was] comparable” to that 
of regular admittees (R. 181).20

The defendants initially contended in the trial court 
and on appeal that the special program did not cause 
respondent’s rejection in 1973 because most of the 
places had been filled by the time his application was 
ready to be considered, and the remaining places 
would have gone to those with higher scores and to 
those on the list of alternates, which did not include 
respondent (R. 69-70).

Science Overall MCAT MCAT
grade grade verbal science
point point score1 score1

average average (percentile) (percentile)

Respondent.......... .............. ...................... - 3.45 3.51

Mean Scores

1973 Entering Class:
Regular Admittees........................ - ........ 3.51 3.49 81 83
Special Admittees_____________   2.62 2.88 46 35

1974 Entering Class:
Regular Admittees...................     3.36 3.29 69 82
Special Admittees......... .........................  2.42 2.62 34 37

Ranges

1973:
Regular Admittees..................................  2.57-4.0 2.81-3.99
Special Admittees.............. ...................- 2.11-2.93 2.11-3,76

1974:
Regular Admittees................................... 2.5-4.0 2.79-4.0
Special Admittees......... —....................... 2.02-3.89 2.21-3.45

i Verbal and science scores are considered more significant than scores on the quantitative and 
general information portions of the MCAT exam (R.152,153).

20 No other evidence establishes the numerical ratings of reg­
ular or special admittees (B,. 181-182).



17

In 1974 respondent made an early application and 
was interviewed early (R. 70-71). His rating of 549 
on a scale with a maximum of 600 was equivalent to 
that in 1973, but there were more applicants with 
higher scores ahead of him (ibid.\21 Respondent was 
rejected not only by Davis hut also by 12 other me­
dical schools (R. 49-50, 51) .22

B. THE STATE COURTS' OPINIONS

1. T H E  SUPERIOR COURT

The Superior Court found (Pet. App. 114a-115a) 
that the special admissions program was not open to 
white applicants, and it concluded that their exclu­
sion from competition for 16 of the 100 places at the 
Medical School violated the California Constitution 
and the Fourteenth Amendment of the United States 
Constitution {id. at 107a, 117a). The court reasoned 
that any program using race was arbitrary and un­
fair, and it did not, discuss the justifications that had 
been offered in support of the program.

The court entered a declaration that the special 
admissions program was unconstitutional and en­
joined petitioner from “considering [respondent’s] 
race or the race of any other applicant in passing upon 
his application for admission” (Pet. App. 120a). It 
denied respondent’s request to be admitted to the 
Medical School because it concluded that respondent

21 His 1973 rating was 93.6 percent of the maximum; his 1974 
rating was 91.5 percent of the maximum.

22 Bakke was informed by two schools that his age—33 in 1973— 
played a part in his rejection (E. 49-50,52).



18

had not carried his burden of establishing that, but 
for the Medical School’s use of race, he would have 
been admitted (id. at 107a-108a, 111a, 116a-117a).

2 . T H E  SUPREM E COURT OP CALIFORNIA

Both petitioner and respondent appealeds Peti­
tioner challenged the Superior Court’s holding and 
declaratory judgment that the special admissions pro­
gram is unconstitutional; respondent contested the 
court’s holding that he should be denied relief because 
he failed to prove that he would have been admitted 
if the 16 places had not been reserved for minority 
applicants.

The Supreme Court of California agreed to hear 
the case in advance of decision by the intermediate 
appellate court (Pet. App. 4a). I t  affirmed the 
Superior Court’s decision that the special admissions 
program is unconstitutional, but in so doing it relied 
only on the Fourteenth Amendment.

After describing the admissions process at the Med­
ical. School, the Supreme Court of California observed 
that racial classifications may sometimes be constitu­
tionally employed—for example, in assigning students 
to public schools to achieve integration (Pet. App. 
13a). The court concluded, however, that the use of 
race by the Medical School must be judged by es­
pecially rigorous standards because “the extension of 
a right or benefit to a minority [had] the effect of 
depriving persons who were not members of a minor­
ity group of benefits which they would otherwise have 
enjoyed” (ibid.). When race is used to assign a stu-



19

dent to one school rather than to another to eradicate 
the effects of previous discrimination, all students 
still receive an education, and whites and minority 
students alike share the burden of transportation {id. 
at 13a-14a) ; the consequences of the use of race are 
quite different, the court reasoned, where there is com­
petition for a limited number of places and race is 
used as a criterion of exclusion. The fact that the use 
of race therefore might treat minorities “benignly” 
did not obviate the need for exacting judicial scru­
tiny.23

The court characterized the central issue of the 
case as “whether the rejection of better qualified 
applicants on racial grounds is constitutional” (Pet. 
App. 16a). Applying the “strict scrutiny” test for 
racial classifications that “result in detriment to a 
person because of his race” {id. at 17a, footnote 
omitted), the court examined petitioner’s justifica­
tions for the special admissions program at Davis.24

23 Quoting from DeFuni-s v. Odegaard, 82 Wash. 2d 11,32,507 P. 
2d 1169, 1182, vacated as moot, 416 U.S. 312, the court observed 
that “ ‘the minority admissions policy is certainly not benign 
with respect to nonminority students who are displaced by it’ ” 
(Pet. App. 17a n. 12).

24 The court rejected (Pet. App. 18a-19a) the argument that 
less exacting scrutiny should be applied because the use of race 
cut in favor of traditionally disadvantaged groups. The court 
stated {id. at 19a n. 16) that no discernible majority was dis­
criminating against itself, and it reasoned that the Equal Protec­
tion Clause protects persons as persons, not only as members of 
racial groups {id. at 20a). Thus, the court concluded, respondent 
had a personal right not to suffer loss because of his race, and 
it did not matter whether he was a member of a minority racial 
or ethnic group.



20

I t summarized four justifications that had been 
offered in support of the special admissions program 
(Pet. App. 21a-22a) : the desire to increase the racial 
diversity of the medical profession and the student 
body; the need to train minority physicians who would 
serve as role models for other members of minority 
groups; the need to increase the number of physicians 
serving minority communities; and the belief that 
minority physicians would have greater rapport with 
minority patients and consequently be more effective.

I t rejected (Pet. App. 23a) arguments about rap­
port and the need for minority physicians to serve 
minority patients, on the grounds that they were 
unsupported, parochial and relied on racial stereo­
types. Although the court stated that the remain­
ing objectives were legitimate and important, it con­
cluded that the Medical School had not demonstrated 
that these objectives could not be achieved by other 
mean (ibid.). The court suggested (id. at 24a-26a) 
that the Medical School might increase the size of 
its classes, reduce its reliance on grades in selecting 
from among disadvantaged students of all races, and 
increase its efforts to recruit disadvantaged students.
The court also suggested (id. at 28a) that the Medical 
School could give a preference to applicants of any | 
race who expressed willingness to practice in disad­
vantaged communities, and that it could institute 
clinical courses to induce students to do so. Because,
“■[s]o far as the record discloses, the University has 
not considered the adoption of these or other nonracial



21

alternatives to the special admission program” {id. at 
26a), the court concluded that the Medical School had 
not established a compelling need for the special ad­
missions program.

The court distinguished a line of eases that had 
upheld race-conscious relief for employment discrim­
ination (Pet. App. 29a-32a). I t found no evidence 
that the Medical School had engaged in discrimina­
tion, and it declined to consider the argument of 
several amici that reliance on grade point averages 
and MCAT scores was discriminatory.25

The court also stated that, as a practical matter, 
preferences are difficult to abolish even after they have 
served their purpose (Pet. App. 36a). I t concluded 
that “ [w]hile a program can be damned by semantics, 
it is difficult to avoid considering the University 
scheme as a form of an education quota system, 
benevolent in concept perhaps, but a revival of quotas 
nevertheless. * * * To uphold the University would 
call for the sacrifice of principle for the sake of dubi­
ous expediency and would represent a retreat in the 
struggle to assure that each man and woman shall be 
judged on the basis of individual merit alone, a strug­
gle which has only lately achieved success in removing 
legal barriers to racial equality” {id. at 36a-37a).

25 That argument had not been raised in the trial court, and 
nothing in the record either supports or refutes the argument that 
grades and MCAT scores are insufficiently related to performance 
in medical school or in the profession, or that the MCAT is cul­
turally biased (Pet. App. 31a-32a).



22

Turning to respondent’s appeal from the decision 
denying him admission to the Medical School, the 
court concluded that the Medical School, not respond­
ent, should bear the burden of proof (Pet. App. 37a- 
39a). I t therefore remanded the case for further pro­
ceedings at which the Medical School would be re­
quired to establish, if it could, that even in the absence 
of the unconstitutional program respondent would 
have been denied admission.26 After the Medical School 
conceded that it would be unable to meet that burden 
of proof, the court modified its opinion and judgment 
to provide that respondent must be admitted (id. at 
80 a).

Justice Tobriner dissented (Pet. App. 39a-78a). 
He stated that (id. at 60a-61a; footnote omitted) : 
“ [heightened judicial scrutiny is * * * appropriate 
when reviewing laws embodying invidious racial 
classifications, because the political process affords an 
inadequate check on discrimination against ‘discrete 
and insular minorities.’ * * * By the same token, 
however, such stringent judicial review is not appro­
priate when, as here, racial classifications are utilized 
remedially to benefit such minorities, for under such 
circumstances the normal political process can be 
relied on to protect the majority who may be incident­
ally injured by the classification scheme.” Applying 
that standard, he would have held that the special 
admissions program did not offend the Constitution.

26 The court indicated that its decision would apply retroactively 
only to applicants who had filed suit before the date of its opinion 
(Pet. App. 38a n. 34).



23
IN TRO DU CTION  AND SUM M ARY OF ARGUM ENT

This case involves a special admissions program 
that takes race into account. The parties have por­
trayed the case as an appropriate vehicle for definitive 
resolution of numerous constitutional questions that 
may arise with respect to minority-sensitive programs. 
But deficiencies in the record of this case make it 
inappropriate for the Court to anticipate these ques­
tions. In our view, only one question should be finally 
resolved in the present posture of this case: whether 
a state university admissions program may take race 
into account to remedy the effects of societal discrim­
ination. We submit that it may.

The record does not afford an adequate basis for 
the exploration of other questions (cf. Morales v. 
New York, 396 U.S. 102). I t is enough to say that 
the opinion of the Supreme Court of California ap­
plied an erroneous legal standard. At all events the 
present record is plainly insufficient to permit the 
formulation of detailed principles that would deter­
mine the constitutionality of the many other federal 
and state programs that take race into account in 
various ways and for various purposes. We believe 
that the Court’s decision should leave for consider­
ation in cases dealing with other specific programs, on 
a proper record, specific questions that may arise 
concerning those programs. Cf. Wheeler v. Barrera, 
417 U.S. 402, 426-427.



24

I
Within the confines of this ease, we examine the 

justification for minority-sensitive programs and the 
constitutionality of taking race into account in mak­
ing decisions concerning admissions to professional 
school. The most important principle involved here is 
that because the effects of racial discrimination are 
not easily eliminated, mere neutrality toward race 
often is inadequate to rectify what has gone before. 
The Court therefore has upheld on many occasions 
remedial orders that require the government to use 
race to assist in the remedial process. As the Court 
explained in North Carolina State Board of Education 
v. Swann, 402 U.S. 43, 46, “ [jjust as the race of stu­
dents must be considered in determining whether a 
constitutional violation has occurred, so also must it 
be considered in formulating a remedy.”

This principle extends beyond public rectification 
of public wrongs. Race may be considered in devising 
remedies for private discrimination. Franks v. Bow­
man Transportation Co., 424 U.S. 747. Race may be 
considered in carrying out a prophylactic program to 
prevent racially disadvantageous outcomes, whether 
or not they would violate the Constitution. United 
Jewish Organizations of Williamsburgh, Inc. v. 
Carey, 430 U.S. 144. And race may be taken into 
account in avoiding racially disproportionate effects 
of employment testing practices. Albemarle Paper 
Co. v. Moody, 422 U.S. 405.



25

Congress, which has a special responsibility to in­
terpret and to enforce the Civil War Amendments, 
has determined that minority-sensitive programs are 
necessary to rectify the continuing consequences of 
discrimination. Many federal programs make explicit 
use of race, and the Executive Branch has joined 
Congress in endorsing voluntary efforts by States 
and private parties to do likewise when necessary 
to break down the barriers that have separated the 
races for so long.

I I

States and their subdivisions are not limited to ad­
dressing only the effects of their own discrimina­
tion. Racial discrimination in society as a whole may 
make it difficult for a professional school fairly to 
evaluate the abilities and promise of minority ap­
plicants without taking race into account. Moreover, 
this Court has recognized that “substantial benefits 
flow to both whites and blacks from interracial as­
sociation” (Linmark Associates, Inc. v. Township of 
Willingboro, No. 76-357, decided May 2, 1977, slip op. 
10), and those benefits cannot be achieved unless each 
institution in society may consider the consequences 
of racial discrimination by others. There is no need 
for a professional school to await a judicial decision 
that it has itself violated principles of equality be­
fore it may begin to redress inequality created by 
others.

If, as we argue, a professional school may take 
into account the likely effects of societal discrimi-

245- 950— 77--------- 3



26

nation in making admissions decisions, it, follows that 
the school may employ minority-sensitive admissions 
procedures. This Court has witnessed a history of 
discrimination against minority groups that does not 
require repetition here. That discrimination has af­
fected the medical profession no less than other pro­
fessions.

I l l

When a State considers race in distributing bene­
fits, its program must be examined carefully for two 
reasons. First, a racial classification that purports to 
be benign—that is, to assist the victims of discrimina­
tion-m ay in fact be invidious in purpose or effect. 
Second, the State may not take account of race un­
less that is necessary to achieve an important govern­
mental objective. Race ordinarily ‘‘bears no relation 
to the individual’s ability to participate in and con­
tribute to society.” Mathews v. Lucas, 427 U.S. 495, 
505. The United States has undertaken to foster the 
principle that race is unrelated to merit or qualifica­
tion and is not generally a legitimate basis for dis­
tributing opportunities. To do otherwise would be to 
risk reverting to the very thinking that has in the 
past resulted in invidious discrimination. The Four­
teenth Amendment protects all persons without regard 
to their race, and that protection can be assured only 
by careful examination of minority-sensitive state 
action.

Such an inquiry, however, does not call for the re­
jection of minority-sensitive programs that are de-



27
signed to serve remedial purposes and that are tai­
lored to that end. The courts’ central concern should 
he whether the program is designed and applied to 
remedy the effects of past discrimination. Such a de­
sign often will require use of race rather than case- 
by-case determinations of discrimination.

Societal discrimination may have left minority ap­
plicants to professional schools with credentials less, 
impressive than they otherwise would have had. Be­
cause competition for admission is keen, even small 
differences in such credentials may determine whether 
applicants will be admitted or rejected. I t is appro­
priate to take race into account to adjust for differ­
ences in credentials that may have been caused by 
discrimination but do not reflect differences in ability 
to succeed or in ability to contribute to the medical 
profession and the health of the general population..

The admissions process involves many difficult and 
subjective decisions. For example, admissions com­
mittees often must consider whether grades from 
one college are comparable to those from another, or 
whether an applicant with higher grades should be* 
admitted before one with greater self-discipline. Other 
pertinent considerations are no less subjective. Be­
cause admissions decisions involve comparisons of in­
tangible qualifications, educational institutions require 
wide latitude in making these decisions.

Moreover, there is no adequate alternative to the 
use of minority-sensitive admissions criteria. The 
Supreme Court of California suggested increasing the



28

size of the Medical School’s classes. But whether the 
Medical School admits 100, 200, or 500 students, mi­
nority applicants still will be handicapped by the con­
sequences of prior discrimination. The court also sug­
gested replacing consideration of race with special 
consideration for disadvantage. At any level of per­
sonal or parental income, however, applicants who are 
from minority groups face an extra hurdle—-the lin­
gering effects of pervasive racial discrimination—that 
other applicants do not. Cf. Califano v. Webster, No. 
76-457, decided March 21, 1977.

IV

Under the principles we have discussed above, the 
judgment of the Supreme Court of California should 
be reversed to the extent that it forbids the Medical 
School to operate any minority-sensitive admissions 
program.

The remaining question is whether respondent is 
entitled to admission to the Medical School. We have 
argued that it is constitutional in making admissions 
decisions to take race into account in order fairly to 
compare minority and non-minority applicants, but 
it is not clear from the record whether the Medical 
School’s program, as applied to respondent in 1973 
and 1974, operated in this manner.

The trial court found, and the University does 
not contest, that 16 places in the class were reserved 
for special admittees. The record does not establish, 
however, how this number was chosen, whether the



29

number was inflexible or was used simply as a meas­
ure for assessing the program’s operation, and how 
the number pertains to the objectives of the special 
admissions program.

It also is unclear whether there was any compari­
son of minority with non-minority applicants. The 
regular admissions committee played some role in the 
selection of all 100 students, but the record does not 
reveal what that role was. If  there was a fair com­
parison of regular and special applicants by the reg­
ular admissions committee, this would indicate that 
race had not been used improperly.

The deficiencies in the evidence and findings—which 
pertain to both the details of the program and the 
justifications that support it—may have been caused 
by the approach both parties, and both courts below, 
took to this case. They asked only whether it was 
permissible for the Medical School to use race at 
all. We believe that it is permissible to make minor­
ity-sensitive decisions, but that it is necessary to 
address, as well, questions concerning how race was 
used, and for what reasons. The findings with respect 
to these latter, critical questions are insufficient to 
allow the Court to address them.

Accordingly, the judgment of the Supreme Court 
of California should be vacated to the extent that, 
it orders respondent’s admission, and the case should 
be remanded for further appropriate proceedings 
to address the questions that remain open. In all other- 
respects the judgment should be reversed.



30
A RG UM EN T

I
RACE M AY BE TAKEN INTO ACCOUNT TO COUNTERACT 

TH E EFFECTS OF PRIOR DISCRIMINATION

A. T H IS  COURT HAS HELD TH A T M IN O R ITY -SEN SITIV E DECISION'S ARE
ESSENTIAL TO E LIM IN A TE  T H E  EFFECTS OF DISCRIM INATIO N IN

T H IS  COUNTRY

The effects of racial discrimination are not easily 
eliminated. Because discrimination breeds other in­
equalities, the Court has recognized that simple elim­
ination of future discrimination may well be insuffi­
cient to rectify what has gone before. Mere neutral­
ity often is inadequate (Green v. County School 
Board, 391 U.S. 430, 438).27

In  United States v. Montgomery County Board of 
.‘Education, 395 U.S. 225, the Court upheld an order 
that teachers be dispersed on a racial basis throughout 
a desegregating school system. In Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 19-25, 
the Court explained that the race of students and 
.teachers could be taken into account in devising a 
remedy for racial discrimination. And in North Caro-

27 See Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F. 2d 
1017, 1027 (C.A. 1), certiorari denied, 421 U.S. 910 (“The goal of 
color blindness, so important to our society in the long run, does not 
mean looking at the world through glasses that see no color; it 
means only that all colors are moral equivalents, to be treated 
on an equal basis”). Unlike the situation in which the State need­
lessly injects race into what might otherwise be a racially-neutral 
undertaking (see Anderson v. Martin, 375 U.S. 399), once racial 
discrimination has taken place it is often necessary to use race 
a second time to bring about a neutral result.



31

Una State Board of Education v. Swann, 402 U.S. 43, 
the Court held, that a statute forbidding the assignment 
of students on the basis of race was unconstitutional, 
because it would hinder the implementation of neces­
sary remedies. The Court explained (402 U.S. at 46) : 
“Just as the race of students must be considered in 
determining whether a constitutional violation has 
occurred, so also must race be considered in formu­
lating a remedy.” 28

Consideration of race also is necessary in devising 
remedies for private discrimination. Franks v. Bow­
man Transportation Co., 424 U.S. 747, held that sen­
iority credits could be awarded on a racial basis, and 
International Brotherhood of Teamsters v. United 
States, No. 75-636, decided May 31, 1977, amplified 
that principle. Both cases, moreover, recognized that 
although remedial measures inevitably would upset 
the expectations of other persons, most of whom 
would be white, this was not a sufficient objection to 
the implementation of effective remedies.

Moreover, the remedial use of race has not been 
confined to the elimination of discrimination that has 
been proven by traditional means. For example, Con­
gress concluded that, in order to protect the voting 
rights of certain minority groups against subtle dilu-

28 See also Dayton Board of Education v. Brinkman, No. 
76-539, decided June 27, 1977, which indicated once more that 
race could be taken into account both in ascertaining the degree 
of racial separation caused by the discrimination and in devising 
a remedy that would eliminate only that increment, and no more. 
Such a procedure necessarily requires extensive use of racial 
criteria.



32

tion, it was necessary to consider tlie race of the per­
sons who would be affected by legislative reappor­
tionments. The prophylactic statute Congress en­
acted—the Voting Rights Act of 1965—is about race, 
and its administration is perfused with the require­
ment of color-consciousness. Race must be taken into 
account to prevent racially disadvantageous outcomes, 
not simply to rectify past discrimination. This Court 
has upheld this use of race. United Jewish Organiza­
tions of Williamsburgh, Inc. v. Carey, 430 IT.S. 144; 
see Georgia v. United States, 411 IT.S. 526, 531 (de­
scribing the Act as “concerned with * * * the reality 
of changed practices as they affect Negro voters”).

Finally, color-conscious decisions are made regu­
larly to implement the Civil Rights Act of 1964. For 
example, Griggs v. Duke Power Co., 401 IT.S. 424, 
held that Title V II of that Act prohibits the use of 
employment tests that have a substantial racially dis­
parate effect, unless the employer can prove that 
the tests are job related. Even then “it remains open 
to the complaining party to show that other tests or 
selection devices, without a similarly undesirable ra­
cial effect, would also serve the employer’s legitimate 
interest in ‘efficient and trustworthy workmanship.’ ’’ 
Albemarle Paper Co. v. Moody, 422 IT.S. 405, 425. 
And in Albemarle Paper, in dealing with a test that 
appeared to screen out black applicants for employ­
ment at a disproportionately high rate, the Court con­
cluded that, in validating such a test as job re­
lated, employers could be required to counteract its 
racially disparate effects by resorting to racial cri



33

teria. They could, in other words, be required in ap­
propriate circumstances to “differentially validate” 
their employment tests—to use one passing score 
for blacks and another for whites, so that the test 
would predict success on the job equally well for both 
racial groups. The conscious use of race in making 
such employment decisions can help prevent subtle 
discrimination and help the employer to achieve a 
result that ultimately will not be racially biased.
B. BOTH T H E  LEGISLATIVE AND EXECUTIVE BRANCHES OP T H E  FEDERAL

GOVERNMENT HAVE ADOPTED M IN O RITY -SEN SITIV E PROGRAMS FOR
T H E  PURPOSE OF ELIM IN A TIN G  T H E  EFFECTS OF PAST DISCRIM INATION

The use of race is supported by many programs es­
tablished by Congress, which has a special responsi­
bility for interpreting and enforcing the Civil War 
amendments to the Constitution (see South Carolina v. 
Katzenhach, 383 U.S. 301, 327). See, e.g., Appendix 
A to this brief. Congress has authorized expenditures 
for many of these measures, most recently in the Pub­
lic Works Employment Act of 1977, Pub. L. 95-28, 91 
Stat. 116,117, which requires the dedication of part of 
public works grants for minority business enterprises. 
Congress adopted this program in order to promote 
and strengthen minority-owned businesses. See 123 
Cong. Rec. H1436-H1437 (daily ed., February 24, 
1977).

Perhaps the most prominent minority-sensitive pro­
gram of the federal government is the enforcement of 
Executive Order 11246, 30 Fed. Reg. 12319, as 
amended, 32 Fed. Reg. 14303. The Executive Order



34

requires federal contractors to take affirmative action 
to prevent disproportionately low employment of 
women and minorities in their work forces, starting 
from the assumption that most disproportionately low 
employment is the result of discrimination—if not of 
the contractor involved, then of someone else.29 The 
constitutionality and legality of this program has 
been repeatedly upheld.30

The Executive Branch has devoted extensive efforts 
over the past several years to developing minority- 
sensitive programs that will address the consequences 
of past discrimination. Eor example, Title VI of the 
Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 
TJ.S.C. 2000d el seq., prohibits racial discrimination in 
the operation of federally assisted programs. The Me­
dical School, as the receipient of federal assistance

29 Department of Labor regulations require that if there ai’e 
disparities between the proportion of available minority workers 
and their employment, the employer must establish goals and 
timetables for correcting the disparity. 41 C.F.R. 60-2.10,

30 See, e.g., Contractors Association of Eastern Pennsylvania v. 
Secretary of Labor, 442 F. 2d 159 (C.A. 3), certiorari denied, 
404 U.S. 854; Rossetti Contracting Co. v. Brennan, 508 F. 2d 1039 
(C.A. 7); Northeast Construction Co. v. Romney, 485 F. 2d 752 
(C.A. D.C.). For a history of the Executive Order and the re­
sponse to it in Congress and the courts, see Comment, The Phila­
delphia Plan: A  Study on the Dynamics of Executive Power, 
39 U. Chi. L. Rev. 732 (1972).

Moreover, in enacting the 1972 amendments to Title Y II of the 
Civil Rights Act of 1964, Congress considered and rejected the 
option of altering Executive Order 11246. The history of this 
consideration is recounted in Comment, supra, 39 U. Chi. L. Rev. 
at 747-760. The present Congress is again considering the question. 
See, e.g., 123 Cong. Rec. I46099-H6106 (daily ed., June 17,1977).



35

(A. 8), is bound by Title VI. The Department of 
Health, Education, and Welfare, with the approval of 
the President, has promulgated regulations that inter­
pret the requirements of Title VI.81

These regulations, which are codified at 45 C.F.R. 
Part 80, provide that “ [e]ven in the absence of 
* * * prior discrimination [by the recipient of fed­
eral funds], a recipient in administering a program 
may take affirmative action to overcome the effects of 
conditions which [result] in limiting participation by 
persons of a particular race, color, or national origin” 
(45 C.F.R. 80.3(b) (6) (ii)). The regulations offer the 
following illustration (45 C.F.R. 80.5 ( j) ) :

Even though an applicant or recipient has 
never used discriminatory policies, the services 
and benefits of the program or activity it ad­
ministers may not in fact be equally available? 
to some racial or nationality groups. In such 
circumstances, an applicant or recipient may 
properly give special consideration to race, 
color, or national origin to make the benefits of 
its program more widely available to such 
groups, not then being adequately served. For 
example, where a university is not adequately 
serving members of a particular racial or 
nationality group, it may establish special re­
cruitment policies to make its program better 
known and more readily available to such 
group, and take other steps to provide that 
group with more adequate service.

51 Regulations adopted to enforce Title VI require the approval 
of the President. 42 TJ.S.C. 2000d-l.



36

The Equal Employment Opportunity Coordinating 
Council, a joint body of several federal agencies,’2 
lias issued a Statement on Affirmative Action Pro­
grams for State and Local Governmental Agencies.33 
The Statement encourages state and local govern­
ments to adopt affirmative action programs as neces­
sary complements of vigorous enforcement of anti- 
discrimination laws. The Council concluded that prop­
erly-designed minority-sensitive programs are instru­
mental in ensuring “that positions * * * are genu­
inely and equally accessible to qualified persons, with­
out regard to their race * * The Council en­
dorsed the establishment of goals that would reduce 
“substantial disparities” between the number of quali­
fied persons and their acceptance for employment. 
I t also concluded that it would be necessary and ap­
propriate to take race into account in recruiting, 
training programs, and the evaluation of selection 
methods.

32 The Council was established by statute to develop and im­
plement “agreements, policies and practices designed to * * * 
eliminate conflict * * * and inconsistency among' the * * * agen­
cies * * * of the Federal Government responsible for the * * * 
enforcement of equal employment opportunity * * * policies.” 
Section 715 of the Civil Rights Act of 1974, as amended, 
86 Stat. I l l ,  42 U.S.C. (Supp. V) 2000e-14. The member agencies 
include the Department of Justice, the Department of Labor, the 
Equal Employment Opportunity Commission, the Civil Service 
Commission, and the Civil Rights Commission.

33 The Statement appears at 41 Fed. Reg. 38814-38815. We have 
reproduced it as Appendix C to this brief.



37
We do not, of course, contend that States have the 

same authority as Congress to define violations of the 
Civil War amendments. Nevertheless, States have 
broad authority to promote the purpose of those 
amendments. A State therefore is free, within con­
stitutional constraints, to undertake remedial minor­
ity-sensitive measures that are designed, like the 
Fourteenth Amendment itself,34 to break down the 
barriers that have separated the races.35

34 The three Civil War amendments to the Constitution reflect 
the judgment of the Nation that a person’s race ought not be a 
reason to inflict disadvantage upon him. The Thirteenth Amend­
ment ended the enslavement of blacks, and the Fifteenth Amend­
ment guaranteed that the vote could not be withheld on racial 
grounds. Although the Equal Protection Clause of the Fourteenth 
Amendment did not mention race, it was widely understood, and 
quickly interpreted by this Court, as protecting black people from 
unequal treatment. Strauder v. West Virginia., 100 U.S. 303.

35 Voluntary action to promote integration has been upheld re­
peatedly. See, e.gn PorcelM v. Titus, 431 F. 2d 1254 (C.A. 3), 
certiorari denied, 402 U.S. 944 (integration of public school fac­
ulties) ; Springfield School Committee v. Barksdale, 348 F.2d 261 
(C.A. 1) (integration of students in public schools); Otero v. 
New York City Housing Authority, 484 F. 2d 1122 (C.A. 2) 
(integration of public housing); Associated General Contractors 
of Massachusetts, Inc. v. Altshuler, 490 F. 2d 9 (C.A. 1), cer­
tiorari denied, 416 U.S. 957 (integration of workforce of govern­
ment contractor).



38

II

TH E UNIVERSITY COULD PROPERLY CONCLUDE THAT  

MINORITY-SENSITIVE ACTION W AS NECESSARY TO 

REMEDY TH E LINGERING EFFECTS OF PAST DIS­

CRIMINATION

A. M INORITY-SENSITIVE RELIEF IS NOT LIM ITED  TO CORRECTION OF DIS­

C R IM IN A TIO N  PERPETRATED : W  THE INSTITUTION OFFERING RELIEF

The Supreme Court of California concluded that the 
Medical School’s policy cannot be justified by any 
need to overcome the effects of past discrimination be­
cause the Medical School has not been found to have 
engaged in discrimination (Pet. App. 29a-32a). That 
conclusion is erroneous for two reasons: first, the 
University is not limited to correcting the effects 
of its own discrimination, but it can take into ac­
count the consequences of discrimination elsewhere 
in society; second, institutions need not await judicial 
determinations before attempting to overcome their 
own discrimination.

I t would make no sense to conclude that a univer­
sity can take race into account only to compensate 
for its own discrimination. Each group of applicants 
comes before a university only once. Although in some

*

cases a remedy may be needed to break down a dis­
criminatory pattern in the administration of a univer­
sity’s admissions program, whether the university 
previously practiced discrimination of this sort is 
not a necessary part of the justification for a special



39

admissions program. The principal, and more gen­
erally applicable, justification, rather, is that racial 
discrimination elsewhere in society makes it difficult 
fairly to evaluate the abilities and promise of each 
new applicant without taking his race into account 
in evaluating his credentials.

This Court has recognized the importance of elim­
inating the consequences of discrimination and “that 
substantial benefits flow to both whites and blacks 
from interracial association.” Linmark Associates, 
Inc. v. Township of Willingboro, No. 76-357, decided 
May 2, 1977, slip op. 10. See also Trafficante v. Metro­
politan Life Insurance Go., 409 U.S. 205. I t  follows 
that no institution is limited to rectifying only its 
own discrimination. If  it were, the consequences of 
discrimination that spilled over from the discrimina­
tor to society at large would be irreparable, and the 
victims of discrimination would be doomed to suffer 
its consequences without even the prospect of volun­
tary assistance.

The Court has not adopted so confining a view. 
In Califano v. Webster, No. 76-457, decided March 21, 
1977, the Court sustained a federal statute that gave 
greater retirement benefits to women than to men. 
The statute was not justified on the argument that 
the retirement system had itself discriminated against 
women; it was justified, rather, by the fact that the 
private labor market had for decades discriminated 
against women. The Court concluded that this com­
pensation from public funds for essentially private



40

discrimination was constitutional. Cf. Kahn v. Shevin, 
416 U.S. 351. The same principle applies here.

Since the University may attempt to take into 
account the consequences of discrimination elsewhere 
in society, it follows that there is no need for a 
formal declaration that the University itself engaged 
in discrimination. Moreover, even when an institu­
tion is attempting to correct its own discrimination 
it may do so without awaiting litigation. See Mc­
Daniel v. jBarresi, 402 U.S. 39, 41 (school district 
may take race into account in formulating volun­
tary plan of integration). I t  would be pointless to 
require expensive and lengthy litigation before an 
institution may undertake voluntarily to correct its 
own wrongs.36 Federal statutes do not require it. For 
example, the requirement of Title Y II of the Civil 
Rights Act of 1964 to use minority-sensitivity in 
choosing and validating employment tests to avoid un­
justified racially disproportionate results is not contin­
gent upon a prior finding of racial discrimination by 
each employer,37 nor is the requirement in the Voting- 
Rights Act to take race into account in drawing dis­
trict lines.38

36 See also the cases collected in note 35, supra.
37 See Albemarle Paper Go. v. Moody, supra; Dotharrd v. Raw- 

linson, No. 76-422, decided June 27, 1977, slip op. 7-10; Interna­
tional Brotherhood of Teamsters v. United States, supra, slip op. 9 
li. 15,22.

38 United Jewish Organizations, supra, 430 U.S. at 157 (opinion 
of White, J.) (“the Act’s prohibition against instituting new 
voting procedures * * * [and its requirement to take race into 
account] is not dependent upon proving past unconstitutional 
apportionments”) .



41

B. DISCRIM INATIO N AGAINST M INORITY GROUPS HAS HINDERED T H EIR  
PARTICIPATION IN  T H E  MEDICAL PROFESSION

This Court has witnessed a history of discrimination 
against minority groups that does not require repeti­
tion here. See, e.g., Brown v. Board of Education, 347 
U.S. 483; Keyes v. School District No. 1, Denver, Col­
orado, 413 U.S. 189; Hernandez v. Texas, 347 U.S. 
475; Lau v. Nichols, 414 U.S. 563.

Although we have made progress in eliminating dis­
crimination case-by-case, the major civil rights laws 
have been effective for little more than a decade. The 
pervasive effects of past discrimination remain with 
us. The vast majority of our racial and language mi­
norities remain poorer and less educated, suffer 
greater unemployment, and are less able to influence 
the forces—economic, social, and political—that bear 
upon their lives than is the white majority.39 To the 
extent we are still a nation of “haves” and “have- 
nots” the dividing line is in part a function of race.

39 In 1969 the percentage of families with incomes below the 
poverty level was 3% times higher among black than among white 
families. 8.6 percent of white families had incomes below the pov­
erty level compared to 29.8 percent of black families and 20.4 
percent of families of Spanish heritage (U.S. Bureau of the 
Census, 1970 Census, Vol. I , Characteristics of the Population, 
United States Summary, 1-400).

Minorities have received less education than white persons. 
Among persons 25 years old and over, 54.5 percent of whites had 
completed four years of high school or more. Only 31.4 percent 
of black persons and 36.0 percent of persons of Spanish heritage 
had completed high school. In the same age group, 11.3 percent 
of all white persons had completed four years of college or more, 
while only 4.4 percent of black persons and 6.0 percent of persons 
of Spanish heritage had finished college. Median school years

245- 950— 77----------4



42

Discrimination has not been remote from the lives 
of the minority medical school applicants at Davis. 
Many black California residents lived in the South
completed among whites were 12.1, among blacks 9.8, and 9.6 
among persons of Spanish heritage (id. at 1-386).

In 1974 the unemployment rate among non whites was twice 
that of whites: 9.9 percent compared to 5.0 percent (U.S. Bureau 
of the Census, Current Population Reports, The Social and Eco­
nomic Status of the Black Population in the United States 197It, 
64 (1975)). In 1976, among men of Spanish origin, the unemploy­
ment rate was 10.7 percent; among women it was 12.5 percent (U.S. 
Bureau of the Census, Current Population Reports, Persons of 
Spanish Origin in the United States: March 1976 10).

Minority group members hold low-paying and low status jobs 
at a higher rate than whites. In 1970 only 10.2 percent of black 
persons and 13.6 percent of Spanish heritage persons held profes­
sional, managerial and administrative positions, compared to 28.9 
percent of all white persons. 12.0 percent of black persons, 11.8 per­
cent of persons of Spanish heritage, and only 5.3 percent of white 
persons held jobs as laborers. The disparity is even greater among 
service and private household workers—28.1 percent of black per­
sons, 15.1 percent of persons of Spanish heritage, and only 11.1 
percent of white persons held such jobs (1970 Census, Yol. 1, 
Characteristics of the Population, supra, at 1-746 to 1-748).

The figures for Asian-Americans (Japanese, Chinese, and F il­
ipino only) are somewhat different. The number of .families with 
incomes below the poverty level was 8.8 percent (U.S. Bureau of the 
Census, Subject Reports—Japanese, Chinese, and Filipinos in the 
United States 42, 101, 160). Among Asian-American per­
sons 25 years old and over, 62.2 percent had completed four years 
of high school and 20.4 percent had completed four or more years 
of college. The median school years completed among Japanese- 
Americans was 12.5, among CMnese-Americans it was 12.4 and 
among Filipino-Americans it was 12.2 (id. at 9, 68, and 127). 
Only 2.0 percent of Asian-Americans were unemployed (id. at 13, 
72, 142). 29.1 percent of Asian-American persons held profes­
sional, managerial, and administrative positions, while 7.2 per­
cent were laborers, and 16.9 percent were service and private 
household workers (id. at 31, 90,149).



43

■while it was still largely segregated.40 Minorities 
educated in California were subjected to widespread 
discrimination.41 Racial discrimination against gener­
ations of blacks and other racial minorities stamps 
its mark on future generations.42 The Medical School

40 In 1970, 41.1 percent, of all American-born black persons 
residing in California had been born in the South. Almost 48 
percent of all American-born blacks between the ages of 20-29, 
and living in California, were born in the South (U.S. Bureau 
of the Census, 1970 Census, Yol. I, Characteristics of the Popula­
tion,, California, p. 6-1149 (1973)).

41 See Appendix B to the brief for the NAACP Legal Defense 
and Educational Fund as amicus curiae. In fiscal year 1976, 34 
school districts in California received basic grants under the Emer­
gency School Aid Act, 86 Stat. 354, as amended, 20 U.S.C. (Supp. 
Y) 1601 et.seq., to eliminate isolation of minority group students.

42 There may be support for the conclusion that educational dis­
advantage among those applying for medical school is a function 
of race rather than of the parental income of applicants. A recent 
study indicates that grade point averages and MCAT scores of 
low-parental-income white applicants to the 1976-1977 first year 
classes of all medical schools are not markedly different from 
those of higher-parental-income white applicants, but that the 
scores and. grades of minority applicants (blacks, American In­
dians, Mexican-Americans and mainland Puerto Ricans) are decid­
edly lower. The following table is based on Table 1 of that study:

Parental Income

All applicants White Minorities

More than 
$10,000

Less than More t han 
$10,000 $10,000

Less than More than 
$10,000 $10,000

Less than 
$10,000

Undergraduate Mean GPxi. 3.30 3.15 3.34 3.27 2.80 2.79
MCAT Subtest;

545 510 553 548 466 438
Science...............---------- 579 535 589 571 480 456

Waldmari, Economic and Racial Disadvantage as Reflected in 
Traditional Medical School Selection Factors: A Study of 1976 
Applicants to U.S. Medical Schools 15 (1977). (This study was 
prepared for the American Association of Medical Colleges.)



44

faculty here apparently recognized that the prior 
academic performance of disadvantaged minority ap­
plicants might not fully reflect their capabilities be­
cause of poor schooling, economic burdens, and lack 
of family support (R. 67-69). This concern supports 
a program to overcome the effects of discrimination.

Discrimination palpably has affected the medical 
profession. The opportunities for black persons to 
obtain medical educations in this country have been 
extremely limited. For most of the past one hundred 
years, black persons were systematically excluded 
from the medical schools in the South43 and only 
token numbers were admitted to medical schools in 
the Forth.44 Consequently, black persons seeking

43 At the end of World War II, all 26 of the medical schools 
located in Southern or border States (one-third of the approved 
medical colleges in the United States) were closed to blacks be­
cause of their race. The first black student was admitted to a 
Southern medical school in 1948, when Edith Mae Irby was per­
mitted to register at the University of Arkansas. Morals, The 
History of the Negro in Medicine 137 (1967). Integration of 
Southern medical schools was avoided in 1948 by 14 Southern 
governors, who signed a regional compact that, in part, provided 
financial assistance to Meharry Medical College for the educa­
tion of black students who had been denied admission to medical 
schools within their States. Murray, States’’ Lams on Race and 
Color 24-28 (Ala.), 81-82 (F la .),'91-96 (Ga.), 183-187 (La.), 
201-205 (M d.),241-245 (Miss.),333-338 (N.C.),363-368 (Okla.), 
410-414 (S.C.), 432-436 (Tenn.), 666-675 (1951). These States 
adopted this method of providing medical education despite the 
fact that it already had been held unconstitutional. See Missouri 
ex rel. Gaines v. Canada, 305 U.S. 337.

44 In 1947 a total of 82 black students were enrolled at 20 pre­
dominantly white schools outside of the South. Marais, supra, 
at 94.



45

medical educations were forced to rely principally on 
the two predominantly black medical schools—How­
ard University College of Medicine in Washington, 
D.C., and Meharry Medical College in Nashville, Ten­
nessee—which trained approximately 90 percent of 
all black physicians who were educated in this 
country.45

As racially discriminatory admissions policies were 
slowly abandoned, black enrollment at traditionally 
white medical schools increased. Between 1947-1948 
and 1969-1970 the number of black students attend­
ing medical schools almost doubled, yet the percent­
age of black students among the total enrollment 
remained fairly constant at approximately 2.6 per­
cent.46 In 1950 approximately 2.2 percent of all phy­
sicians were black,4T while almost 10 percent of the 
total population was black.48 By 1970, 11.1 percent 
of the population of the United States was black,49 
yet the percentage of black physicians remained un-

45 Morais, supra, at 137.
46 Curtis, Blacks, Medical Schools, and Society 34, 41 (1971). 

In 1947-1948, 588 black students were 2.59 percent of the total 
medical school enrollment. In 1969-1970, 1042 blacks accounted 
for 2.75 percent of all medical students. The only substantial 
variation from these percentages occurred in 1968-1969, when 
black enrollment dropped to 2.18 percent. Id. at 34.

47 Keitzes, Negroes and Medicine xxvii (1958).
48U.S. Bureau of the Census, 1970 Census, Vol. I, Characteris­

tics o f the Population, United States Summary 1-262.
49 1970 Census, Vol. I, Characteristics of the Population,, supra, 

at 1-262.



46

changed.50 Members of other minority groups, too,: 
are not likely to become physicians.51

50 1970 Census, Vol. I, Characteristics of the Population, supra,- 
at 1-739.

51 In 1969-1970 American Indians were less than 0.1 percent of 
the medical school enrollment, 0.07 percent of all physicians, and 
0.4 percent of the total population. Mexican-Americans repre­
sented 0.4 percent of all medical students and 2.2 percent of the 
total population. Mainland Puerto Ricans accounted for less than 
0.1 percent of the medical school enrollment and 0.7 percent of 
the total population. No data are available on the numbers of 
Mexican-Americans and Mainland Puerto Ricans who are physi­
cians. Dube. Datagram: U.S. Medical Student Enrollments 1968-
1969 Through 1972-1978, 48 J. Med. Educ. 293, 296 (1973 ); 1970 
Census, Vol I, Characteristics of the Population, supra, at 1-262 ;•
1970 Census, Subject Reports: Final Report PC(2)-7A, Occupa­
tional Characteristics 593; Final Report PC(2)-1C, Persons of 
Spanish Origin IX.

There is no apparent under representation of Asian-American 
persons. The Asian-American population of the United States has 
been estimated by the 1970 census to be 1.5 million, or .75 percent 
of the total population. 1970 Census, Vol. I, Characteristics of the 
Population supra-, at 1-261,1-593,1-594 (The census figure has be­
come outdated in light of substantial immigration during the 1970s. 
Projections indicate that the Asian-American population will ex­
ceed three million by 1980 (United States Department of Health, 
Education, and Welfare, Office of Health Resources Opportunity, 
Identification of Problems in Access to Health Services and, Health 
Careers for Asian Americans, II-5-7 (1976)).) More than one- 
third of that number live in California. 1970 Census, Vol. I, 
Characteristics of the Population, supra, at p. 6-86. 3.6 percent of 
all physicians in the United States are Asian-Americans. U.S. 
Bureau of the Census, Subject Reports, Final Report PC (2)-7A. 
12 Occupational Characteristics (1973). I t is not clear how many of 
those physicians were educated in the United States. A study pre­
pared by the Center for Health Services Research and Develop­
ment of the American Medical Association indicates that, in 1970, 
9,904 foreign medical graduates in this country were graduates of 
medical schools in Japan, China and the Philippines. Of those, 
9,796 were born outside of the United States. Haug and Martin,



47

Black physicians encountered obstacles to their pro­
fessional development after graduation from medical 
school. Until the 1940s only black hospitals or hospi­
tals serving a predominantly black population would 
aceept black physicians for internships and residen­
cies,52 and black physicians were largely excluded 
from election to specialty hoards.53 Racially discrimi­
natory hospital practices continued until recent 
times.54

Foreign Medical Graduates in the United States, 1970 292-293 
(1971). From 1968-1969 through 1972-1973, the percentage of 
Asian-Americans among all medical students ranged from 1.2 per­
cent to 1.5 percent. Dube, Datagram: U.S. Medical Student Enroll­
ments, 1968-1969 Through 1972-1973, 48 J. Med. Educ. 293, 296 
(1973). From 1973-1974 through 1976-1977 it rose from 1.7 per­
cent to 2.0 percent. Dube, Datagram: U.S. Medical Student Enroll­
ment, 1972-1973 Through 1976-1977, 52 J. Med. Educ. 164, 166 
(1977). Moreover, Asian-Americans as a group appear to score 
as well or better than whites on the MCAT and in grade point 
averages. Gordon, Descriptive Study of Medical School Appli­
cants 1975-1976, Appendix Table A -l (1977).

At the same time, no one can doubt that this racial group has 
been the subject of discrimination in this country. See, e.g., Tick 
Wo v. Hopkins, 118 U.S. 356; Ex parte Endo, 323 U.S. 283. Nor 
is it clear that discrimination against Asian-American persons 
is a thing of the past. Lau v. Nichols, '414'U.S. 563, Discrimina­
tion may take subtle forms, and the admission of large numbers 
of Asian-American students does not preclude the possibility of 
discrimination. In 1975-1976 Asian-American applicants were ac­
cepted into medical schools at a somewhat lower rate (31.7 per­
cent) than whites (37.2 percent). Gordon, Descriptive Study of 
Medical School Applicants, 1975-1976, Appendix Table A -l 
(1977).

“ Melton, The Negro Physician, 43 J. Med. Educ. 802 (1968).
58 Morals, supra, at 97.
64 See, e.g., Simkins v. Moses II. Cone Memorial Hospital, 323 

F. 2d 959 (C.A. 4) (en banc), certiorari denied, 376 U.S. 938.



48

Black physicians also have been excluded from mem­
bership in local affiliates of the American Medical As­
sociation (AMA), a prerequisite for membership in 
the national organization.55 Although in 1964 the AMA 
rejected the practice of racial exclusion by its affili­
ates,06 as late as 1968 many local affiliates in the South 
still excluded black physicians from membership.57 
Moreover, because an appointment to a hospital staff 
usually required membership in the local medical so­
ciety, blacks were excluded from hospital staffs be­
cause of their race.58

In 1968 the Association of American Medical Col­
leges (AAMC)59 formally recognized the dispropor­
tionately low enrollment of minorities in medical 
schools as a problem.60 Johnson, Smith and Tarnoff, 
Recruitment and Progress of Minority Medical School 
Entrants 1970-1972, 50 J. Med. Educ. 713, 721 (1975 
Supp.). During 1969-1970 an AAMC task force issued

55 Morais, supra, at 153.
56 Curtis, supra, at 24.
57 Melton, supra., 42 J. Med. Educ. at 799.
5S Morais, supra, at 153. See also Cypress v. Newport News Gen­

eral and Nonsectarian Hospital Association, 375 F. 2d 648 (C.A. 
0 -

69 The AAMC includes among its members all American and 
Canadian medical schools. Association of American Medical Col­
leges, Medical School Admission Requirements 1978-1979 iii 
(1977).

00 In 1968 the AAMC Assembly adopted the following recom­
mendation: “Medical schools must admit increased numbers of 
students from geographic areas, economic backgrounds and ethnic 
groups that are now inadequately represented.” Johnson, Smith, 
and Tarnoff, supra, at 721.



49

a report recommending that medical schools increase 
the proportion of minorities enrolled, and it included 
specific numerical goals.61 In November 1970 the 
AAMC Assembly adopted a resolution urging schools 
to undertake and continue affirmative action pro­
grams. AAMC, Medical School Admission Require­
ments 1978-1979 9 (1977). Many of the medical 
schools in the country became involved between 1968 
and 1971 in efforts to assure equal educational oppor­
tunity.62 The special admissions program of the Davis 
Medical School is part of this trend.

61 The task force recommended a goal for minority (black, Mex- 
ican-American, American Indian and Puerto Rican) admissions 
of 12 pex*cent by 1975-1976. Report of the Task Force to the Inter- 
Association Committee on Expanding Educational Opportunities 
in Medicine for Blacks and Other Minority Students 1 (1970). 
The report was endorsed by the American Hospital Association, 
the American Medical Association, and the National Medical As­
sociation, as well as the AAMC. Johnson, Smith, and Tarnoff, 
supra, at 721.

62 Odegaard, Minorities in Medicine 11 (1977), citing Welling­
ton and Gyorffy, Draft Report of Survey and Evaluation of Equal 
Educational Opportunity in Health Profession Schools Table II  
(1975). In  1972 Wellington and Gyorffy surveyed the traditionally 
white health profession schools. All of the medical schools re­
sponding—89 out of 112—had recruitment programs directed to­
ward minority or disadvantaged students (Wellington and 
Gyorffy, Draft Report of Survey and Evaluation of Equal Edu­
cational Opportunity in Health Profession Schools Table V III). 
Twenty-seven percent of the schools reported that they had as a 
goal some stated percentage of minority students in their entering 
class {ibid.). At 16 percent of the medical schools, minority or 
disadvantaged students were selected for admission by a different 
group than that which selected all other students {ibid.). More 
than two-thirds of the responding medical schools had modified



50

I I I

T H E  CENTRAL ISSUE ON JUDICIAL REVIEW OP A M INORITY-
SENSITIVE PROGRAM IS W H E T H E R  IT IS  TAILORED TO

REMEDY TH E EFFECTS OF PAST DISCRIMINATION

When a State considers race in distributing bene­
fits, its program must be examined carefully for two 
reasons. First, a racial classification that purports to 
be benign, i.e., to aid the victims of past racial dis­
crimination, may prove to be as invidious, in purpose 
or effect,63 as traditional racial classifications have 
been. United Jewish Organizations of Williamsburgh, 
Inc. v. Carey, supra, 430 U.S. at 173-174 (Brennan, 
J., concurring). Assertion of a benign purpose should 
not immunize a racial classification against a search­
ing judicial inquiry. See Weinberger v. Wiesenfeld, 
420 U.S. 636, 648.

Second, the State may not take account of race 
where such consideration is not necessary to achieve 
a legitimate governmental objective. The Constitu-
. admissions procedure in order to permit entry of greater numbers 
of minority students; three-fourths of the responding schools had 
modified admissions criteria for minorities (ibid.). One-half of 
the responding medical schools had pre-enrollment programs for 
minorities (ibid.). Eighty percent of the responding medical 
school's had special financial programs for minority or disadvan­
taged students (ibid-.).

63 For example, laws intended to benefit some women have been 
struck down because they operate to the disadvantage of others. 
See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636. Moreover, such 
a law may be based on stereotypes and, as a result, operate to 
reinforce them. Ibid.



51

lion places restraints on the use of race as a sorting 
mechanism because it “bears no relation to the indi­
vidual’s ability to participate in and contribute to 
society.” Mathews v. Lucas, 427 U.S. 495, 505. The 
United States has undertaken to foster the principle 
that race itself is unrelated to merit or qualification 
and to discourage the belief that race is generally 
a legitimate basis for distributing opportunities.64 To 
do otherwise would risk encouraging divisiveness and 
political organization along racial lines, emphasizing 
the importance of race and perpetuating thinking in 
racial terms.65 Moreover, it would risk reverting to 
the very thinking that has in the past resulted in 
invidious discrimination—the consideration of racial 
stereotypes to the exclusion of individual character­
istics. The Fourteenth Amendment protects all per-

64 Kaplan, Equal Justice in An Unequal World: Equality for 
the Negro—The Problem of Special Treatment, 61 Nw. TJ.L. Rev. 
363, 375-380 (1966). See United Jewish Organizations of WU- 
liamsburgh, Inc. v. Carey, supra, 430 U.S. at 174 (Brennan, J., 
concurring). See also O’Neil, Preferential Admissions: Equaliz­
ing the Access of Minority Groups to Higher Education, 80 Yale 
L.J. 699, 709-710 (1974); Greenawalt, Judicial Scrutiny of 
“Benign" Racial Preference in Law School Admissions, 75 Colum. 
L. Kev. 559, 570-573 (1975).

05 Legislation along racial lines that purports to be benign may 
stigmatize a beneficiary group by implying “to some the recipients’ 
inferiority and especial need for protection.” United Jewish Or­
ganizations of Williamsburgh, Inc. v. Carey, supra, 430 U.S. at 
173-174 (Brennan, J., concurring). But any possible stigma must 
be weighed against the benefits to the group to determine the pur­
pose and effect of the legislation. Moreover, since such a stigma 
would be directed at the group as a group, the benefits to the 
group as a whole should be examined.



52

sons without regard to race,66 and that protection 
can be assured only by close examination of minority- 
sensitive state action.67

60 This Court’s treatment of employment discrimination against 
white persons demonstrates this point. McDonald v. Santa; Fe 
Trail Transportation Go., 427 U.S. 273, held that civil rights 
statutes passed immediately after the Civil War protect white 
persons against racial discrimination. The Court considered and 
rejected arguments, similar to those made by petitioner, that white 
persons were not in need of protection against racial discrimina­
tion ; the Court examined in detail the debates during the Recon­
struction Congresses and concluded that the legislators who had 
proposed the Fourteenth Amendment intended, in the contempo­
raneous legislation at issue in that case, to shield members of all 
races from discrimination. “Unlikely as it might have appeared in 
1866 that White citizens would encounter substantial racial dis­
crimination * * * the 39th Congress was intent upon establish­
ing in the federal law a broader principle than would have been 
necessary simply to meet the particular and immediate plight of 
the newly freed Negro slaves” (427 U.S. at 295-296). That conclu­
sion applies to the Fourteenth Amendment—which was proposed 
in substantial measure to settle Congress’ constitutional authority 
to enact civil rights legislation—no less than to the statutes under 
consideration in McDonald.

The Court observed (427 U.S. at 281 n. 8) that it was not pre­
sented with a question concerning “an affirmative action program,” 
and it did not pass upon the propriety of such a program. We do 
not interpret McDonald as establishing a statutory bar against 
use of race- that is more complete than the constitutional rule. We 
refer to the case not to show that affirmative action programs are 
forbidden but to demonstrate that the Fourteenth Amendment 
demands that they be examined carefully. See also Trans World 
Airlines, Inc. v. Hardison, No. 75-1126, decided June 16, 1977, 
slip op. 6-7.

67 Congress has been sensitive to these concerns, and it has pro­
vided that race should not be used for certain purposes. 42 U.S.C. 
1981 forbids discrimination against white persons (see McDonald 
v. Santa Fe Trail Transportation Go., supra). 42 U.S.C. 3766(b)



53

At the same time, such an inquiry does not call for 
rejection of minority-sensitive programs when em­
ployed in a remedial manner. As we have discussed 
above (see pages 30-40, supra), the lingering conse­
quences of past use of race should be addressed. As

provides that the Law Enforcement Assistance Administration 
may not condition any grant upon the refusal of the recipient to 
eliminate racial imbalance in its workforce. See also 122 Cong. 
Ree. S17320 (daily ed., September 30, 1976). Section 703(j) of 
Title V II of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(j), 
provides that nothing in Title V II “shall be interpreted to require 
any employer * * * to grant preferential treatment to any in­
dividual or to any group because of the race * * * or national ori­
gin of such individual or group on account of an imbalance which 
may exist with respect to the total number or percentage of per­
sons of any race” employed.

Section 703(j) does not, of course, apply here since this is not 
an employment case; moreover, the Medical School adopted the 
special admissions program voluntarily, and Section 703 (j ) does 
not purport to limit the programs that may be voluntarily adopted. 
But the judicial treatment of Section 703(j) is instructive. The 
courts have recognized in it an attempt by Congress to differen­
tiate between using race to rectify previous discrimination and 
using race to attain racial balance for its own sake. Accordinglv, 
they have upheld orders based upon findings of past discrimina­
tion and designed to overcome racial imbalance caused by that dis­
crimination. See, e.g., Rios v. Enterprise Association, 501 F. 2d 
622 (C.A. 2); Boston Chapter, N .A.A.C.P., Inc. v, Beecher, supra. 
This is much the same position that this Court has adopted, on 
constitutional grounds, in school desegregation cases. See, e.g., 
Dayton Board of Education v. Brinkman, supra; Swann v. Char- 
lotte-MeckZenburg Board of Education, supra. Cf. Drummond v. 
Acree, 409 U.S. 1228 (Powell, J ., in chambers). The fact that Con­
gress has resolved the competing interests in this fashion strongly 
suggests that States and private parties should be entitled to con­
sider race in a similar fashion.



54

long as prior discrimination has present effects, mere 
neutrality to race is insufficient. Green v. County 
School Board, 391 U.S. 430. As long as the effects of 
past racial discrimination persist, the employment of 
race-consciousness in rectifying that discrimination 
should not be abandoned.

Judicial review of such programs should not be cur­
tailed because of assertions that the programs reflect 
a decision by a particular majority to discriminate 
against itself. This Court has on other occasions re­
jected similar arguments. Lucas v. Forty-Fourth Gen-, 
eral Assembly of Colorado, 377 U.S. 713, 736-737 ; Cas­
taneda v. Partida, No. 75-1552, decided March 23, 
1977; Craig v. Boren, 429 U.S. 190, 197. Of course, the 
circumstances of a program’s adoption are pertinent to 
the judicial inquiry.68 But the Court’s central concern 
should be whether the program is tailored in design 
and application to remedy the effects of past discrimi­
nation. See pages 30-40, supra.

68 Morton v. Mancari, 417 U.S. 535, upheld a statute giving 
tribal Indians a preference for employment in the Bureau, of In­
dian Affairs. Similarly, United States v. Antelope, No. 75-861, 
decided April 19, 1977, upheld a classification that in some cases 
(depending on state law) treated an Indian defendant more 
harshly than a similarly situated white defendant. The Court 
explained (slip op. 4) that “legislation with respect to Indian 
tribes * * * is not based upon impermissible racial classifications. 
Quite the contrary, classifications expressly singling out Indian 
tribes as subjects of legislation are expressly provided for in the 
Constitution * * Since legislation pertaining to tribal In­
dians does not have a racial basis, the Indian cases do not support 
either petitioner or respondent here.



55
A. A PROGRAM IS TAILORED TO REMEDY T H E  EFFECTS OF PAST DISCRIM I­

NATION IF  IT  USES RACE TO ENHANCE TH E FAIRNESS OF TH E
ADMISSIONS PROCESS

As we have pointed out at pages 30-33, supra, this 
Court has held that race may properly be considered 
for remedial purposes. When a governmental agency 
undertakes to ensure that the effects of past dis­
crimination are not allowed to mask an individual’s 
merit, it necessarily takes race into consideration. 
Although in some circumstances it is possible to deter­
mine whether a particular person has been harmed 
by discrimination, and to provide particular relief 
to persons So harmed (see, e.g., International Brother­
hood of Teamsters v. United States, supra, slip op. 
48-49 and n. 62), that determination often cannot be 
made. Racial discrimination has been pervasive in 
our society. People who are educationally and eco­
nomically disadvantaged are particularly likely to 
have been affected by discrimination. Moreover, a 
minority community, as a whole, may suffer the ef­
fects of exclusion of its members from economic and 
educational advantages. Although it may be practical 
to require an institution to address the results of its 
own discrimination on a case-by-case basis,69 it is 
necessary to use another approach when an institu­
tion tries to cope with the effects of discrimination 
by society as a whole.

69 This is not universally the case. The remedies used in school 
desegregation cases are general; relief is not limited to individual 
students who may have been assigned to school for racial reasons. 
Because racial discrimination in the operation of schools has per­
vasive effects, the remedy is not confined to identifiable victims.



56

Societal discrimination may have left minority ap­
plicants with credentials less impressive than they 
would have possessed if they (and their forebears) 70 
had not been subjected to discrimination. Because 
competition for admission to professional schools is 
keen, even small differences in such criteria as grades 
and entrance test scores may make the difference 
between admission and rejection. Decades of discrim­
ination by public bodies and private persons may 
have far-reaching effects that make it difficult for 
minority applicants to compete for admission on an 
equal basis. The consequences of discrimination are 
too complex to dissect case-by-case; the effects on as­
pirations alone may raise for minority applicants a 
hurdle that does not face white applicants to profes­
sional schools. A professional school dealing with im­
ponderables of this sort ought not be confined to the 
choice of either ignoring the problem or attempting 
the Sisyphean task of discerning its importance on 
an individual basis. When individual measurement 
would be impractical, a State properly may use cate­
gorical means. Cf. Gaston County v. United States, 
395 U.S. 285, 295-296; Califano v. Webster, supra; 
Kahn v. Shevin, supra. See also Milliken v. Bradley, 
No. 76-447, decided June 27, 1977, slip op. 15 (dis­
crimination can “breed other inequalities” that call for 
generalized relief).

70 Because learning and development in the home in the early 
childhood years can be particularly important to the formation of 
aspirations and intellectual achievement, the effects of discrimina­
tion may be transmitted from one generation to another.



57

It might be said in response that such an argument 
would not apply to admissions to professional schools. 
Applicants to professional schools have been success­
ful in the competition to enter college and they have 
received a college education. Only the best of the 
minority applicants to professional school can be 
chosen. This process of selecting from among the 
minority applicants means that a professional school 
will admit only those minority applicants who have 
suffered the least from discrimination.

We believe, however, that this response would be 
incomplete. I t compares members of minority groups 
to one another. The pertinent comparision should be 
between the most highly qualified whites and the most 
highly qualified blacks, Chicanes and Asian-Ameri- 
cans: who, among these “ most highly qualified” per­
sons, are more likely to have suffered because of 
discrimination, either in their personal lives or be­
cause it influenced their upbringing, career aspira­
tions, or intellectual development1? The residual and 
pervasive effects of societal discrimination may keep 
the most highly qualified minority applicants from 
having credentials quite as impressive as those of the 
most highly qualified white applicants. And, because 
there are vastly more white applicants than minority 
applicants, even a small difference in such credentials 
can have a great effect on the prospects of admission.”

71 An illustration may be helpful. Suppose that 1000 people 
apply for 100 positions in a professional school. Suppose, further, 
that 20 percent of the applicants come from minority groups that 
have been the victims of recent discrimination. The professional 
school decides to admit the 100 applicants with the highest grade 
point averages in college. I f  the discrimination had lingering

245 - 950— 77 ----------- 5



58
Race may be pertinent to admissions decisions 

because it gives information that will be helpful

effects on the minority applicants—because they were required to 
work during college and had less time to study, because discrim­
ination in primary and secondary education meant that they came 
to college less well prepared, because the environment in which 
they were raised was less conducive to intellectual development, or 
for any of numerous other reasons—we would expect each appli­
cant to clo slightly less well in obtaining high college grades. The 
median grade point average for whites might be 3.0, and the me­
dian for minority applicants might be 2.6. The difference would 
be only slightly significant, but it would produce striking results. 
The following table represents the expected distribution of grades:

Number of Applicants

W hites M inorities
Grade range (800 to ta l) (200 to ta l)

24 1
2 K bn R 40 2
8.3 to  3.49_________ 80 6
R 1 tn R 9,Q 136 10
2.9 to 3.09_________ 200 20
2.7 to 2.89-________ 136 34
2.5 to 2.89_________ 80 50
2.3 to 2.49 40 34
Below 2.3 ------ 64 33

In  order to take the 100 applicants with the highest grade point 
averages, the school would accept every applicant with a grade 
point average higher than 3.5. This would include 64 whites and 
three minority applicants. The 33 remaining places would be 
filled from the pool of applicants with averages between 3.3 and 
3.49. The ratio of whites to minority applicants in that pool is ap­
proximately 13 to one. The school would therefore accept 31 whites 
and two minority applicants or 30 whites and three minority appli­
cants. The expected final distribution of the class would be 94 or 
95 Whites and five or six members of minority groups. This exam­
ple demonstrates how the large number of white applicants, cou­
pled with even a small effect attributable to past discrimination, 
can lead to the selection of an overwhelmingly white class unless 
race is taken into account.



59
in understanding the meaning of the credentials 
that an applicant presents. A grade point aver­
age of 2.6 produced by a minority applicant may 
indicate every bit as much potential to be a physi­
cian as a 3.0 average by a white applicant, because 
the minority applicant has demonstrated not only 
the ability to succeed in obtaining grades but also the 
determination and ability to overcome non-academic 
hurdles. The evaluation of the meaning of the 2.6 
average is assisted by cognizance of color. Such con­
siderations are identical in principle to the “differ­
ential validation” of employment tests approved in 
Albemarle Paper Go. v. Moody, supra. The criteria 
for admission to a professional school operate much 
like the employment tests given by private employers, 
and consideration of the race of professional school 
applicants can validly serve much the same function 
as differential validation of employment tests: it can 
adjust for differences in credentials that may be 
caused by race but have little or nothing to do with 
the ability to succeed.

In other words, race may properly be taken into 
account to increase the pool of apparently “qualified” 
applicants and to evaluate them more accurately. Es­
pecially in light of the impracticality of devising rigid 
rules to govern admissions decisions, race may be 
useful to provide more complete information about 
the meaning of credentials that, standing by them­
selves, do not fully reveal the applicant’s abilities and 
potential. The Medical School’s benchmark scores, for 
example, do not reflect a simple addition of points



60

representing quantifiable achievements. Grades given 
by different colleges, or in different courses, or even 
by different professors, are not fungible indicia of 
either achievement or ability. And the circumstances 
under which grades are earned (e.g., while also work­
ing elsewhere, despite inferior preparatory education, 
or despite the psychological and other burdens of 
racial discrimination) are also highly pertinent. For 
all these reasons, raw scores do not convert directly 
into accurate assessments of aptitude for professional 
achievement.

Professional schools therefore must have discretion 
to seek to make judgments about applicants that can­
not be captured in a simple formula. See United Jew­
ish Organizations, supra, 430 U.S. at 173 (Brennan, 
J., concurring); Brest, The Supreme Court, 1975 
Term, Forward: In Defense of the Antidiscrimination 
Principle, 90 Harv. L. Rev. 1, 19, 31 (1976). In 
searching for those applicants most likely to con­
tribute to the medical profession, medical schools 
look not only at aptitude to learn but also at moti­
vation, self-discipline, personal interests, and the ex­
tent to which applicants can diversify and enrich the 
profession. The admissions process involves many dif­
ficult and subjective decisions. Often admissions com­
mittees must ask whether an applicant with higher 
grades should be admitted over one with more self- 
discipline. Comparisons of this sort are common and 
inescapable. The fact that the question calls for con­
sideration of so many imprecise factors suggests the 
wisdom of deference to the answer given by the ad­
missions committees charged with making such de­
cisions every day.



61

A particularly intensive search for minority appli­
cants is essential to a properly administered affirma­
tive action admissions program. I t is constitutionally 
permissible, for example, for a professional school 
to conclude that it is not administratively worthwhile 
to interview non-minority applicants with less than 
a particular grade point average. The large number 
of white applicants may make it too unlikely that any 
with less than that average would ultimately be ad­
mitted even if interviewed. The added factor of 
minority disadvantage, however, can make it appro­
priate not to observe the same cut-off point in offering 
interviews to minority applicants. And we see nothing 
constitutionally improper in the initial screening of 
minority applicants by a committee with specialized 
knowledge of, or insights into, their peculiar qualifi­
cations. These can all be appropriate measures in 
seeking to enhance the fairness of the admissions 
process.

In making the difficult admissions decisions, rea­
sonably selected numerical targets for minority ad­
missions can be useful as a gauge of the program’s 
effectiveness.72 The United States has found such an 
approach useful in other contexts. For example, a

72 Any substantial disparity between the available minority pop­
ulation and the rate of admissions (or employment, in employment 
•cases) gives rise to a rebuttable inference that discrimination is at 
work and makes it appropriate to take steps to correct that condi­
tion. See, e.g., H azelw ood Sch o o l D istrict  v. U n ited  S tates , No. 
76-255, decided June 27, 1977; D oth a rd  v. R aw linson, su p ra ;  I n ­
ternational B ro th erh o o d  o f  Team sters v. U nited States, su p ra ; 

GJastavsda v. P a rt id a , s u p ra ; A lb em arle  P a p e r  G orp. v. M oody, 
s u p r a ;  G rig g s  v. D uke P o w e r  Go., supra.

245-950— 77------6



62

policy statement issued on March 23, 1973, by the 
Department of Justice, the Department of Labor, 
the Civil Service Commission and the Equal Employ­
ment Opportunity Commission, endorses the use of 
flexible goals that “help measure progress in remedy­
ing discrimination.” I t points out, however, that 
“ [a]ny system which requires that considerations of 
relative abilities and qualifications be subordinated to 
considerations of race * * * has the attributes of a 
quota system which is deemed to be impermis­
sible * *

The policy statement concluded that an employer 
should not “ be required to hire a less qualified person 
in preference to a better qualified person, provided 
that the qualifications used to make such relative 
judgments realistically measure the person’s ability 
* * In other words, “persons are to be judged 
on individual ability,” and it is most useful to take 
race into account in making selections among appli­
cants “who are substantially equally well qualified.” 
The statement recognized, however, that the adoption 
of qualifications that themselves exclude substantial 
numbers of minority applicants makes the usefulness 
of the standards suspect and calls for reassessment/3

73 The policy statement is reproduced as Appendix D to this 
brief. I t  also appears at CCII Employment Practices 3775. 
These guidelines were designed with the employment context in 
mind. They should be interpreted, therefore, insofar as admission 
to professional schools is concerned, in light of what we have said 
earlier (pages 58-61, supra) about the imprecision of admissions 
criteria and the need of these institutions to have wide latitude in 
making admissions decisions.



63
B. THERE IS NO ADEQUATE ALTERNATIVE TO TH E USE OP MINORITY- 

SENSITIVE ADMISSIONS CRITERIA

The Supreme Court of California concluded that a 
compelling ease for the use of a minority-sensitive 
admissions program had not been made out because 
the University had not established that non-racial 
criteria would be ineffective to achieve the Univer­
sity’s legitimate goals (see Pet. App. 23a-28a). The 
Supreme Court of California suggested two major 
approaches that the University might try: expansion 
of the size of medical school classes and extension 
of a preference to all disadvantaged applicants.

The suggestion to increase the size of the class is 
beside the point; it would not answer the question 
whether, at any given size of elass, the admissions 
committee may take color into account. The same 
problem confronts medical schools whether they ad­
mit 100, 200 or 500 students: unless race is taken 
into account, there will be very few black and Chi­
cane students in the class. Minority applicants will 
continue to be handicapped by the lingering effects 
of discrimination.

The suggestion to replace a preference for race 
with a preference for economically disadvantaged ap­
plicants fares no better. Previous discrimination may 
handicap economically disadvantaged black and Chi- 
eano applicants even compared with other disadvan­
taged applicants.74 Professional schools cannot fairly 
compare disadvantaged persons to one another (or 
disadvantaged to non-disadvantaged persons) without

74 See note 42, supra.



64

taking race into account. At any level of personal (or 
parental) income, being black or Cliieano is an extra 
•disadvantage; even among the materially disadvan­
taged there is a hierarchy, the lower rungs of which 
are filled by the victims of especial prejudice.

The statute at issue in Califano v. IFebster, supra, 
may illustrate this point. Congress allowed women, 
in computing entitlements to retirement benefits, to 
disregard three more low-earnings years than men. 
As a result, women obtained slightly higher retire­
ment benefits than they would have received if they, 
like men, had taken the three low-earnings years into 
account; without considering those years, women’s 
average income, upon which benefits were based, was 
increased. The Court held that this statute was a ra­
tional means of compensating women for discrimi­
nation against them in the labor market.

I t might have been argued in Webster that, if Con­
gress were concerned about the low wages earned by 
women, it should have increased the retirement bene­
fits of all persons who experienced low earnings. But 
this would not have worked. At any level of skill 
women were earning, as a result of discrimination, less 
than they would have earned if they had been men. If 
a man and a woman each had an income of $5,000 
yearly, this would not have established the absence of 
discrimination. But for the discrimination, the woman 
might have been earning $6,000. The only way to re­
store even rough equality in the payment of retire­
ment benefits was to treat the woman as if she had 
been earning more—that is, to give women a pref-



65

erenee, even among low-wage earners. Moreover, be­
cause it was impossible for practical reasons to de­
termine which women had been victimized by discrimi­
nation over the course of a lifetime, it was both 
necessary and fair to give the adjustment to all 
women.75

So it is with minority applicants to professional 
schools. In order to restore victims of discrimination 
to the position they would have occupied but for the 
discrimination, and to make a fair assessment of their 
achievements and potential, it is proper to credit them 
with having surmounted obstacles not faced by non­
victims. The need and justification for such special 
consideration exist whether the Medical School con­
centrates upon the affluent or the poor. The argument 
that race must be replaced with a reliance upon pov­
erty assumes that race is but a proxy for some “more 
germane [basis] of classification” (Craig v. Boren, 
supra, 429 U.S. at 198). For the reasons we have dis­
cussed, however, race has an importance of its own 
in this context that is not dependent in any way upon 
being a proxy for other things. The Medical School 
therefore is entitled to make an independent use of 
race.76

75 Even with the assistance of the statutory adjustment, women 
received lower average retirement benefits than did men. Slip 
op. 5, n. 5.

76 I t is far from clear, moreover, that the options suggested by 
the Supreme Court of California would help respondent. The ex­
tension of preferential treatment to all materially disadvantaged 
applicants would simply reduce still further the emphasis placed



66

IY

THE SUPREME COURT OF CALIFORNIA APPLIED INCORRECT 

LEGAL STANDARDS IN  EVALUATING TH E CONSTITUTION­
ALITY OF THE SPECIAL ADMISSIONS PROGRAM

A. TI-IE DECLARATORY JUDGMENT FORBIDDING TH E USE OF MINORITY- 
SENSITIVE ADMISSIONS PROGRAMS SHOULD BE REVERSED

The judgment of the trial court (Pet. App. 120a) 
includes a declaratory order that the special admis­
sions program violated the Fourteenth Amendment of 
the Constitution. Although this declaratory judgment 
does not on its face specify that any minority-sensitive 
program also would violate the Constitution, it prob­
ably has this meaning in light of the conclusion of the 
trial court, with which the Supreme Court of Cali-
by the Medical School on academic credentials. Since respondent 
relies upon his academic credentials rather than upon any personal 
disadvantage as the basis for admission, it must follow that he 
would be no better off if the Medical School had followed the 
course suggested by the California court.

This assessment is confirmed by a study of all 1972 high school 
graduates applying to four year colleges. The study, conducted 
by the Office of Education of the Department of Health, Educa­
tion, and Welfare, indicates that any selection system based upon 
disadvantage, and designed to enroll members of minority groups 
comparable to the proportions of these groups in the general pop­
ulation, would require that a very large portion of college classes 
be selected from among disadvantaged applicants. This would 
close many places in the class to non-disadvantaged applicants 
with higher grades. Carroll, A Comparative Analysis of Three 
Admission/Selection Procedures (1977) (H.E.W. Technical
Paper 77-D4). In other words, a general preference for disad­
vantaged applicants would leave applicants like respondent worse 
off than they are under a system of preferences for minority 
applicants.



67

fornia agreed, that the Constitution forbids any use of 
race in making admissions decisions. Moreover, the 
trial court’s judgment with respect to respondent per­
sonally declares that the University shall not consider 
respondent’s race “or the race of any other applicant” 
(ibid.) in passing on respondent’s application for 
admission.

The declaratory judgment concerning the special 
admissions program as a whole responds to the Uni­
versity’s counterclaim for an order approving its use 
of minority-sensitive decisionmaking. I t  therefore sur­
vives the order of the Supreme Court of California 
(Pet. App. 80a) that respondent be admitted to the 
Medical School.

We believe that the declaratory aspects of the 
judgment below are erroneous. We have discussed at 
length the reasons supporting the propriety of minor­
ity-sensitive decisionmaking in the process of ad­
mitting applicants to professional schools. To the ex­
tent that the judgment of the state courts forbids on 
federal constitutional grounds the formulation and 
administration of an affirmative action program con­
sistent with the principles we have set out, it should be 
reversed.
B. W HETHER RESPONDENT WAS WRONGFULLY DENIED ADMISSION TO

TH E MEDICAL SCHOOL SHOULD NOT BE DECIDED ON T H E  PRESENT
RECORD

Under the analysis developed above, it is constitu­
tional in making admissions decisions to take race 
into account in order fairly to compare minority and 
non-minority applicants. I t is not clear from the



68

record whether the Davis program operated in this 
manner. The findings of the trial court leave un­
resolved serious questions concerning operation of the 
special admissions program at Davis in 1973 and 1974. 
We briefly note some of these questions.

1. The trial court found (Pet. App. 111a, 115a), 
and the University does not contest, that 16 places 
were reserved for special admittees. But one question 
not resolved by the findings is whether there was 
any comparison of special with regular applicants. 
Although the trial court found that regular and 
special applicants were “rated” separately (Pet. App. 
115a), it did not determine whether all applicants 
were compared by the regular admissions committee. 
The evidence we have summarized at pages 8-14, 
supra, indicates that the regular admissions commit­
tee played some role in the selection of all 100 stu­
dents, but it does not indicate what that role was.

It also is unclear whether or how the benchmark 
ratings of special applicants were compared against 
the benchmark ratings of regular applicants. The 
trial court found that some special applicants who 
were admitted had benchmark scores substantially 
lower than those of respondent and some other regu­
lar applicants who were not admitted (Pet. App. 
115a). On the other hand, at least one regular appli­
cant who was admitted had a benchmark rating lower 
than that of respondent (R. 181), and there was some 
evidence that the “ range” of benchmark scores among 
special applicants was comparable to that of regular



69

applicants (R. 181).77 The record does not permit a 
direct comparison of the benchmark scores of regular 
and special applicants,78 but if there was a compari­
son of regular and special applicants by the regular 
admissions committee prior to selection, this would 
indicate that race had not been used improperly. This 
inquiry is pertinent to this case, which involves a 
professional school. This Court need not decide 
whether such an inquiry is necessary in determining 
the proper use of race in other admissions programs 
or other situations.

2. The trial court found that a “pre-determined 
quota of 16” special applicants to be admitted (Pet. 
App. 115a) had been set aside. I t is not clear Avhat 
the court meant by “quota.” 79 We have argued above

77 I t is not clear whether “range” refers to median scores, to the 
number of points between the highest and lowest scores, or to the 
absolute rating number.

78 We have discussed some deficiencies in the record. Two other 
questions also require resolution before it is possible to draw con­
clusions regarding the extent to which regular and special appli­
cants are compared. First, if there are differences in the bench­
mark scores of regular and special applicants who are accepted 
for admission, may this difference be explained by the fact that 
different faculty members and students evaluated the applicants ? 
Second, is race taken into account in assigning benchmark scores ? 
The difference in the composition of the committees (rather than 
any difference in the qualifications of the applicants) may explain 
apparent differences in benchmark evaluations, and any further 
apparent difference might disappear if the regular admissions 
committee were charged with taking race into account after the 
special committee had assigned its benchmark ratings based on 
other considerations.

79 The trial court seems to have used “quota” to refer to any 
numerical designation (see Pet. App. 115a, 117a). But not all



70

that the Constitution permits a professional school 
to seek to achieve reasonable goals or targets (in 
contrast to rigid exclusionary quotas) for minor­
ity admissions, because success in achieving these 
goals is a measure of the effectiveness of a pro­
gram in overcoming the present effects of racial 
discrimination. But because any target or goal should 
be reasonably related to the program’s justifications, 
it is helpful to know why a particular target is se­
lected. The record contains no explanation for the 
selection of the number 16 (see Pet. App. 2a n. 1). 
Moreover, it is not clear whether the number was 
inflexible or was used simply as a standard for assess­
ing the program’s operation.

3. I t is not clear from the record why Asian-Amer­
ican persons are included in the special program. 
There is no doubt that many Asian-American per­
sons have been subjected to discrimination. But al­
though we do not know the application rates for 
Asian-Americans at Davis, the available evidence sug­
gests that Asian-American applicants are admitted in 
substantial numbers even without taking special ad­
missions into account. In 1973,13 of the 84 regular ad­
missions places in the class were filled by Asian-Ameri­
can students, although no more than six percent of the 
young college graduates in California are Asian- 
Ameriean.80 Other data also suggest that Asian-Amer-
numbers are “quotas;” that question depends on how the number 
was used and for what reason, matters that the trial court did not 
explore.

80 Compare the table at page 9, supra, with the information 
compiled by the census. In 1970, black persons represented 2.5 
percent, Spanish-speaking and Spanish-surnamed persons 5.8 per­
cent, and other racial minorities 5.6 percent of the persons in Cali-



71

ican applicants compete successfully for professional 
school admission without the assistance of special 
consideration.81 Although it may well be that disad­
vantaged Asian-American persons continue to be in 
need of the special program to overcome past dis­
crimination, the record is silent on that question.82

4. As we have argued above, minority-sensitive 
programs designed to overcome the effects of past 
discrimination upon applicants to medical school are 
constitutional. Petitioners have asserted additional 
justifications for such programs, including, for ex­
ample, the relative likelihood of minority physicians 
serving minority communities. Regardless of the 
merit of such justifications if substantiated, the rec­
ord contains no evidence to demonstrate that they 
would support the particular special admissions pro­
gram at issue here.

5. Deficiencies in the record and in the findings of 
the trial court thus prevent a final assessment of the 
constitutionality of the University’s special admis­
sions program. The trial court addressed its findings 
to the question whether the special admissions pro­
gram employed race in some manner; it did not ad­
dress the question, which we believe is highly signifi­
cant, of how race was used, and why.
fornia with college degrees and between the ages of 20 and 29.1970 
Census, Vol. I, Characteristics of the Population, California 
Supra, at pp. 6-1271 to 6-1272. The potential Asian-American 
college graduates represent an unknown proportion of the “other” 
minorities in the census compilation.

81 See notes 39 and 51, supra.
82 The record contains no information with respect to the reason 

for including Asian-Americans in the special admissions program, 
and the University’s brief does not discuss Asian-American appli­
cants. Compare Br. 21 n. 13 with Br. 23 and n. 22.



72
Both petitioner and respondent argued in the trial 

court and on appeal that this case could be resolved 
by answering a simple question: was the Medical 
School using race in making admissions decisions? 
The evidence introduced by the parties, and the find­
ings made by the trial court, were addressed to this 
question. The Supreme Court of California, too, 
viewed it as dispositive. Consequently, the findings, 
and, indeed, the record are in many respects silent 
concerning how race was taken into account, and for 
what reason. Responsibility for that silence cannot be 
assigned to either party; both parties to this case took 
what we have concluded is an incorrect approach to 
difficult and unsettled legal questions.

This Court should not assume the role of the 
•state courts in analyzing the record to supply nec­
essary findings. Since the inadequacy of the find­
ings is attributable to application of an erroneous 
legal standard, it is most appropriate to give the 
lower courts an opportunity to amplify those find­
ings in light of the principles expressed in the Court’s 
opinion.

Moreover, even if the evidence and findings were 
sufficient to permit a final resolution of the ques­
tion whether the special admissions program was 
constitutional, the question would remain whether 
respondent is entitled to admission. Even if it were 
proper to conclude that the program was unconsti­
tutional, the University would be entitled to show, 
if it could, that respondent still would have been 
denied admission. See, e.g., Ml. Healthy City School 
District Board of Education v. Doyle, 429 U.S. 274,



73

285-287. The Supreme Court of California offered 
petitioner the opportunity to make such a showing 
(Pet. App. 38a-39a), and the University conceded 
that it could not show that, but for the existence of 
the special admissions program, respondent would 
not have been admitted (Pet. App. 80a). But the 
state court’s offer, and the University’s concession,, 
were based on the incorrect principle, reflected in 
the state courts’ opinions, that race could not be­
taken into account at all in making admissions de­
cisions. Under the principles discussed in this brief, 
however, race has a legitimate use in making admis­
sions decisions. Even if the Medical School used race 
in an impermissible way, therefore, the Supreme 
Court of California should have allowed the Univer­
sity an opportunity to establish on remand that re­
spondent would not have been admitted if the special 
admissions program had been administered in a way 
consistent with constitutional principles. That remand 
order would be quite different from the one the state 
court actually entered.

In sum, we believe that the judgment of the Su­
preme Court of California should be vacated and 
the case remanded for further proceedings consistent 
with the views expressed here. See Dayton Board of 
Education v. Brinkman, supra. The trial court should 
have an opportunity to make appropriate findings 
based on the existing record. Furthermore, the state 
courts may deem it appropriate to permit either party 
to introduce additional evidence that might bear on 
the constitutional issues. The Supreme Court of Cali­
fornia also might conclude that it is appropriate to



74

relieve petitioner of its concession in light of the legal 
principles established by this Court’s opinion.

CONCLUSION

Insofar as the judgment of the Supreme Court of 
California declares that the Medical School may not 
consider the race of applicants for the purpose of 
operating a properly administered affirmative action 
admissions program, the judgment should be reversed. 
Insofar as the judgment orders that respondent be 
admitted to the Medical School, the judgment should 
be vacated and the ease should be remanded for 
further proceedings consistent with the views we have 
discussed.

Respectfully submitted.
G r iffin  B . B ell ,

Attorney General. 
W ade H . M cCree, J r.,

Solicitor General. 
Drew S. D ays, III,
Assistant Attorney General. 

L awrence G. W allace,
Deputy Solicitor General. 

F rank  H . E asteebrook, 
Assistant to the Solicitor General. 

B rian  K . L andsberg,
J essica D tjnsay S ilver,

Attorneys.
S eptem ber  1977.



APPENDIX A
F ed era l  D o m e s t ic  A ssist a n c e  P rogram s P ro viding  A ssista n c e  

to  R a c ia l  M in o r it y  G ro ups

Program  and
Agency catalogue No.1 Description and budget

D epartm ent Com­
merce.

D epartm ent of 
H ealth , Educa­
tion, and Wel­
fare.

M inority Business 
E nterprise  (11.- 
800).

M ental H ealth  
T raining G rants 
(13.244).

M inority Biomedi­
cal Support (13.- 
375).

Emergency School 
Aid Act—Basic 
G rants to  Local 
Educ. Agencies 
(13.525).

Emergency School 
Aid Act—Pilot 
Program s (13.- 
526).

Emergency School 
Aid Act— Special 
Program s and 
P rojects (13.- 
529),

Emergency School 
Aid Act—E duca­
tional Television 
(13.530).

G rants to government agencies; 
contracts and technical assist­
ance to m inority businesses to 
promote and expand m inority 
enterprises (est. FY 1977—- 
$11,478,000).

G rants to public and private in ­
stitu tions fo r tra in ing  profes­
sionals in area of m ental health 
and m ental illness—includes 
m inority group projects (est. 
FY 1977—$68,263,000).

G rants to higher educational in­
stitu tions to increase number of 
ethic m inority faculty, students, 
and investigators engaged in  
biomedical research (est. FY 
1977—$7,783,000).

G rants to elem entary and second­
ary  local educational agencies 
to implement plans to eliminate, 
reduce, or prevent isolation of 
m inority group students (est. 
FY 1977—$126,850,000).

G rants to  elem entary and second­
ary  local educational agencies 
w ith  large m inority (or over 
50% m inority) enrollments, for 
implementing plans to elimi­
nate, reduce, or prevent isola­
tion of m inority group students 
(est. FY 19 77—$32,250,000).

G rants to public or nonprofit p ri­
vate organizations for programs 
to resolve special problems in 
communities during school de­
segregation, to benefit students, 
parents, and faculty  (est. FY 
1977—$17,200,000).

G rants to public and nonprofit 
private organizations for devel­
opment of m ultiethnic television 
program s for elem entary and 
secondary school children (est. 
FY 1977—$6,450,000).

(1a )
See footnotes a t end of table.



2 a

Program  and
Agency catalogue N o .1 Description and budget

N ational Science 
Foundation.

Sm all Business Ad­
m inistration.

Emergency School 
Aid Act—Special 
P rogram s (13.- 
532).

E thnic H eritage 
Studies Program  
(13.549).

Special Program s 
for the Aging 
(13.633).

Special Program s 
fo r the Aging— 
OAA Model P ro­
jects (13.634).

M inority Access to 
Research Careers 
(13.880).

Science Education 
Im provement 
(47.048).

M inority Business 
Development— 
Procurem ent As­
sistance (59.006).

M inority Vendors 
Program  
(59.019).

G rants to educational agencies 
for program s to reduce, elimi­
na te  and prevent m inority 
group isolation and aid  children 
in  overcoming educational dis­
advantages of m inority group 
isolation (est. FY 1977— 
$21,500,000).

G rants to  public or private  non­
profit organizations to  provide 
opportunities for students to 
study their own cu ltu ra l h erit­
age and th a t of others (est. PY 
1977—$1,800,000).

G rants to  sta tes for support of 
program s for older persons (es­
pecially low income and minor­
ity  older persons) by planning 
and social services (est. FY 
1977—$122,000,000).

G rants (contracts) to  public or 
private  nonprofit organizations 
for projects w ith new ap­
proaches to coordinated health, 
social, and w elfare services for 
older persons—priority  given to 
minority, lim ited English-speak­
ing, and ru ra l elderly (est. FY 
1977—$12,000,000).

G rants and research contracts to 
assist m inority in stitu tions to  
tra in  grea ter numbers of scien­
tists  and teachers in health-re­
la ted  fields (est. FY 1977— 
$173,000).

G rants to  organizations and 
higher educational institu tions 
to improve capabilities for sci­
ence education and tra in ing—• 
special assistance to  higher edu­
cational in stitu tions w ith  ma­
jo rity  black and m ajority  Span­
ish-speaking enrollm ents (est. 
FY 1977—136,800,000).

Special services to  businesses 
owned by disadvantaged (in ­
cluding m inorities) to help 
them  become independent and 
self-sustaining (est. FY  1977— 
$3,669,000).

Special services to  minority, so­
cially- o r economically-disad­
vantaged businesses to  help 
them find new business oppor­
tunities and identify  business 
deficiencies (est. FY 1977— not 
available).

i This information, derived from the Office of Management and Budget publication 1976 C a ta lo g u e  
o f  F e d e ra l D o m e s tic  A s s is ta n c e ,  does not purport to be exhaustive. The Catalogue provides a listing or 
X 028 Federal programs and activities which furnish assistance or benefits.



APPENDIX B
F e d e r a l  D o m e s t i c A s s i s t a n c e P r o g r a m s  P r o v i d i n g A s s i s t a n c e 

t o  P e r s o n s  W h o  D o N o t  S p e a k  F l u e n t  E n g l i s h

Program  and
Agency catalogue No. Description and budget

D epartm ent of Billingual Eduea- 
H ealth , Educa- tion (13.403). 
tion, and Wel­
fare.

Emergency School 
Aid Act—Bilin­
gual Education 
Projects (13.528).

B ilingual Voca­
tional T raining 
(13.558).

Special Program s 
for the Aging 
(OAA) (13.634).

G rants to sta tes for bilingual ed­
ucation for non-English speak­
ing children or for lim ited Eng­
lish  speaking ability children 
from  low-income fam ilies (est. 
FY 1977—$90,000,000).

G rants to educational agencies 
for bilingual or bicultural pro­
gram s to help students and 
faculty  by minimizing cultu ral 
barriers to equal educational 
opportunity (est. FY  1977— 
$8,600,000).

G rants to  educational agencies fo r 
tra in ing  of disadvantaged youth 
w ith lim ited education and 
lim ited English speaking ability  
in various semiskilled and 
skilled occupations (est. FY 
1977—$0).

G rants (contracts) to public or 
private nonprofit organizations 
to develop new health, social, 
and welfare services and coor­
dination of these services for 
the aged (including minority, 
lim ited English-speaking and 
ru ra l older persons) (est. FY 
1977—$12,000,000). __________

(3a )

245-950— 77-------7



APPENDIX C

A ffirm ative A ction- P rograms for S tate and L ocal 
G overnment A gencies

policy statement

The Equal Employment Opportunity Coordinat­
ing Council was established by Act of Congress in 
1972, and charged with responsibility for developing 
and implementing agreements and policies designed, 
among other things, to eliminate conflict and incon­
sistency among the agencies of the Federal govern­
ment responsible for administering Federal law pro­
hibiting discrimination on grounds of race, color, sex, 
religion, and national origin. This statement is issued 
as an initial response to the requests of a number of 
State and local officials for clarification of the Gov­
ernment’s policies concerning the role of affirmative 
action in the overall equal employment opportunity 
program. While the Coordinating Council’s adop­
tion of this statement expresses only the views of 
the signatory agencies concerning this important sub­
ject, the principles set forth below should serve as 
policy guidance for other Federal agencies as well.

1. Equal employment opportunity is the law of 
the land. In the public sector of our society this 
means that all persons, regardless of race, color, 
religion, sex, or national origin shall have equal access 
to positions in the public service limited only by 
their ability to do the job. There is ample evidence 
in all sectors of our society that such equal access

(4 a )



5a

frequently has been denied to members of certain 
groups because of their sex, racial, or ethnic char­
acteristics. The remedy for such past and present dis­
crimination is twofold.

On the one hand, vigorous enforcement of the 
laws against discrimination is essential. But equally, 
and perhaps even more important, are affirmative, 
voluntary efforts on the part of public employers 
to assure that positions in the public service are 
genuinely and equally accessible to qualified persons, 
without regard to their sex, racial or ethnic char­
acteristics. Without such efforts equal employment 
opportunity is no more than a wish. The importance 
of voluntary affirmative action on the part of em­
ployers is underscored by Title V II of the Civil 
Rights Act of 1964, Executive Order 11246, and re­
lated laws and regulations—all of which emphasize 
voluntary action to achieve equal employment oppor­
tunity.

As with most management objectives, a systematic 
plan based on sound organizational analysis and prob­
lem identification is crucial to the accomplishment of 
affirmative action objectives. For this reason, the 
Council urges all State and local government to de­
velop and implement results oriented affirmative ac­
tion plans which deal with the problems so identified.

The following paragraphs are intended to assist 
State and local governments by illustrating the kinds 
of analyses and activities which may be appropriate 
for a public employer’s voluntary affirmative action 
plan. This statement does not address remedies im­
posed after a finding of unlawful discrimination.

2. Voluntary affirmative action to assure equal em­
ployment opportunity is appropriate at any stage 
of the employment process. The first step in the con-



6a

struction of any affirmative action plan should be an 
analysis of the employer’s work force to determine 
whether percentages of sex, race or ethnic groups in 
individual job classifications are substantially similar 
to the percentages of those groups available in the 
work force in the relevant job market who possess 
the basic job related qualifications.

When substantial disparities are found through 
such analyses, each element of the overall selection 
process should be examined to determine which ele­
ments operate to exclude persons on the basis of sex, 
race, or ethnic group. Such elements include, but are 
not limited to, recruitment, testing, ranking, certi­
fication, interview, recommendations for selection, 
hiring, promotion, etc. The examination of each ele­
ment of the selection process should at a minimum 
include a determination of its validity in predicting 
job performance.

3. When an employer has reason to believe that 
its selection procedures have the exclusionary effect 
described in paragraph 2 above, it should initiate 
affirmative steps to remedy the situation. Such steps, 
which in design and execution may be race, color, 
sex or ethnic “conscious,” include, but are not limited 
to, the following:

The establishment of a long term goal, and short 
range, interim goals and timetables for the specific 
job classifications, all of which should take into ac­
count the availability of basically qualified persons 
in the relevant job market;

A recruitment program designed to attract quali­
fied members of the group in question;

A systematic effort to organize work and re-design 
jobs in ways that provide opportunities for persons



7a

lacking “journeyman” level knowledge or skills to 
enter and, with appropriate training, to progress in a 
career field;

Revamping selection instruments or procedures 
which have not yet been validated in order to reduce 
or eliminate exclusionary effects on particular groups 
in particular job classifications;

The initiation of measures designed to assure that 
members of the affected group who are qualified to 
perform the job are included within the pool of per­
sons from which the selecting official makes the 
selection;

A systematic effort to provide career advancement 
training, both classroom and on-the-job, to employees 
locked into dead end jobs; and

The establishment of a system for regularly moni­
toring the effectiveness of the particular affirmative 
action program, and procedures for making timely 
adjustments in this program where effectiveness is 
not demonstrated.

4. The goal of any affirmative action plan should 
be achievement of genuine equal employment oppor­
tunity for all qualified persons. Selection under such 
plans should be based upon the ability of the appli­
cant (s) to do the work. Such plans should not re­
quire the selection of the unqualified, or the unneeded, 
nor should they require the selection of persons on 
the basis of race, color, sex, religion or natural origin. 
Moreover, while the Council believes that this state­
ment should serve to assist State and local employers, 
as well as Federal agencies, it recognizes that affirma­
tive action cannot be viewed as a standardized xero­
gram which must be accomplished in the same way at 
all times in all places.



Accordingly, the Council has not attempted to set 
forth here either the minimum or maximum voluntary 
steps that employers may take to deal with their re­
spective situations. Rather the Council recognizes that 
under applicable authorities, State and local employ­
ers have flexibility to formulate affirmative action 
plans that are best suited to their particular situa­
tions. In this manner, the Council believes that affirm­
ative action programs will best serve the goals of 
equal employment opportunity.

Respectfully submitted,
H arold R. T yler, Jr.,

Deputy Attorney General and Chairman of 
the Equal Employment Coordinating Coun­
cil.

M icha el  H . M oskow ,
Under Secretary of Labor.
E thel  B ent  W alsh ,

Acting Chairman, Equal Employment Oppor­
tunity Commission.

R obert E . H am pton , 
Chairman, Civil Service Commission.

A rthur  E . F lem m in g , 
Chairman, Commission on Civil Rights.

Because of its equal employment opportunity re­
sponsibilities under the State and Local Government 
Fiseal Assistance Act of 1972 (the revenue sharing 
act), the Department of Treasury was invited to 
participate in the formulation of this policy state­
ment; and it concurs and joins in the adoption of 
this policy statement.

Done, this 26th day of August 1976.
R ichard A lbrecht,

General Counsel, Department of the Treasury.



APPENDIX D

M emorandum— P ermissible G oals and T imetables 
in  S tate and L ocal G overnment E mployment 
P ractices

This Administration has, since September 1969, rec­
ognized that goals and timetables are in appropriate 
circumstances a proper means for helping to im­
plement the nation’s commitments to equal employ­
ment opportunities through affirmative action pro­
grams. On the other hand, the concepts of quotas 
and preferential treatment based on race, color, na­
tional origin, religion and sex are contrary to the 
principles of our laws, and have been expressly re­
jected by this Administration.

Title Y II of the Civil Rights Act of 1964, as 
amended by the Equal Employment Opportunity Act 
of 1972, conferred on the Justice Department and 
the Equal Employment Opportunity Commission en­
forcement responsibilities for eliminating discrimina­
tory employment practices based upon race, color, 
national origin, religion, and sex by state and local 
government employers as set forth in that Act. In 
addition, under the Intergovernmental Personnel 
Act and the merit standards statutes, the Civil Serv­
ice Commission has an obligation to attempt to move 
state and local governments toward personnel prac­
tices which operate on a merit basis. The Depart­
ment of Labor and other Executive Branch agencies 
have responsibilities in the area of equal employment 
opportunities as it affects state and local governm ent

(9 a )



10a

-employers. This memorandum addresses the question 
of how the agencies in the Executive Branch (e.g., 
CSC, EEOC, Justice, Labor and other Federal agen­
cies having equal employment opportunity respon­
sibilities) should act to implement the distinction be­
tween proper goals and timetables on the one hand, 
and impermissible quotas and preferences on the 
other, with due regard for the merit selection prin­
ciples which many states and local governments are 
obliged to follow, and which some state and local 
government employers do not properly follow with 
regard to equal employment opportunities.

All of the agencies agree that there is no conflict 
between a true merit selection system and equal em­
ployment opportunities laws—because each requires 
nondiscrimination in selection, hiring, promotion, 
transfer and layoff, and each requires that such deci­
sions be based upon the person’s ability and merit, 
not on the basis of race, color, national origin, religion 
or sex. The problems arise when an employer pays 
only lip service to the concept of merit selection, but 
in fact follows employment practices which discrimi­
nate on the basis of race, color, etc.

All of the agencies recognize that goals and time­
tables are appropriate as a device to help measure 
progress in remedying discrimination. All agencies 
recognize that where an individual person has been 
found to be the victim of an unlawful employment 
practice as defined in the Act he or she should be 
given “priority consideration” for the next expected 
vacancy, regardles of his relative “ability ranking” 
at the time the new hire is made—this because absent 
the act of discrimination, he or she would be on the 
job. All agencies also recognize that it may be appro­
priate for a court to order an employer to make a



1 1a

good faith, nondiseriminatory effort to meet goals and 
timetables where a pattern of discriminatory employ­
ment practices has been found.

All agencies recognize the basic distinctions between 
permissible goals on the one hand and impermissible 
quotas on the other. Quota systems in the past have 
been used in other contexts as a quantified limitation, 
the purpose of which is exclusion, but this is not its 
sole definition. A quota system, applied in the employ­
ment context, would impose a fixed number or per­
centage which must be attained, or which cannot be 
exceeded; the crucial consideration would be whether 
the mandatory numbers of persons have been hired 
or promoted. Under such a quota system, that number 
would be fixed to reflect the population in the area, 
or some other numerical base, regardless of the num­
ber of potential applicants who meet necessary quali­
fications. I f  the employer failed, he would be subject 
to sanction. I t  would be no defense that the quota 
may have been unrealistic to start with, that he had 
insufficient vacancies, or that there were not enough 
qualified applicants, although he tried in good faith 
to obtain them through appropriate recruitment 
methods.

Any system which requires that considerations of 
relative abilities and qualifications be subordinated 
to considerations of race, religion, sex or national 
origin in determining who is to be hired, promoted, 
etc., in order to achieve a certain numerical position 
has the attributes of a quota system which is deemed 
to be impermissible under the standards set forth 
herein.

A goal, on the other hand, is a numerical objective, 
fixed realistically in terms of the number of vacancies 
expected, and the number of qualified applicants avail-



12a

able in the relevant job market. Thus, if through no 
fault of the employer, he has fewer vacancies than 
expected, he is not subject to sanction, because he is 
not expected to displace existing employees or to hire 
unneeded employees to meet his goal. Similarly, if he 
has demonstrated every good faith effort to include 
persons from the group which was the object of dis­
crimination into the group being considered for selec­
tion, but has been unable to do so in sufficient num­
bers to meet his goal, he is not subject to sanction.

Under a system of goals, therefore, an employer is 
never required to hire a person wTho does not have 
qualifications needed to perform the job successfully; 
and an employer is never required to hire such an un­
qualified person in preference to another applicant 
who is qualified; nor is an employer required to hire 
a less qualified person in preference to a better quali­
fied person, provided that the qualifications used to 
make such relative judgments realistically measure 
the person’s ability to do the job in question, or other 
jobs to which he is likely to progress. The terms “less 
qualified” and “better qualified” as used in this memo­
randum are not intended to distinguish among per­
sons who are substantially equally well qualified in 
terms of being able to perform the job successfully. 
Unlike quotas, therefore, which may call for a pref- 
erence for the unqualified over the qualified, or of the 
less qualified over the better qualified to meet the 
numerical requirement, a goal recognizes that persons 
are to be judged on individual ability, and therefore 
is consistent with the principles of merit hiring.

In some job classifications, in which the newly 
hired person learns on the job the skills required, 
and where there is no extensive education, expe-



13a

rience or training required as prerequisite to success­
ful job performance, many applicants will possess the 
necessary basic qualifications to perform the job. 
While determinations of relative ability should be 
made to accord with required merit principles, where 
there has been a history of unlawful discrimination, if 
goals are set on the basis of expected vacancies and 
anticipated availability of skills in the market place, 
an employer should be expected to meet the goals if 
there is an adequate pool of qualified applicants from 
the discriminated against group from which to make 
selections; and if the employer does not meet the 
goal, he has the obligation to justify his failure.

Similarly, where an employer has purported to 
follow merit principles, but has utilized selection pro­
cedures which are in fact discriminatory and have 
not been shown validly to measure or to predict job 
success (see, Griggs v. Duke Power Co., [3 EPD 
|[ 8137] 401 U.S. 424), there frequently is no valid 
basis presently available for ranking applicants ob­
jectively in order of the probabilities of success on the 
job. In such circumstances, all agencies agree that a 
public employer will be expected to devise or borrow 
a selection procedure which is as objective as possible 
and is likely to be proved valid and is not likely to 
perpetuate the effects of past discrimination; and to 
meet those goals which have been set on a vacancy 
basis. The selection procedure should be as objective 
and job related as possible, but until it has been 
shown to be valid for that specific purpose, it must 
be recognized that rank ordering does not necessarily 
indicate who will in fact do better on the job. Accord­
ingly, if the goal is not being met because of the in­
terim selection procedure, the procedure and other



14a

aspects of the affirmative action program may have 
to be revised. All agencies agree that use of such 
goals does not and should not require an employer 
to select on the basis of race, national origin, or sex 
a less qualified person over a person who is better 
qualified by objective and valid procedures. Where 
such procedures are not being utilized, valid selection 
procedures to determine who will in fact do better on 
the job should be established as soon as feasible in 
accordance with the principles set forth in para­
graphs 2 and 5 below.

With the foregoing in mind, the agencies agree that 
the following principles should be followed:

1. Whenever it is appropriate to establish goals,, 
the goals and timetables should take into account 
anticipated vacancies and the availability of skills 
in the market place from which employees should 
be drawn. In addition, where unlawful discrimina­
tion by the employer has been established, the cor­
rective action program, including the recruiting and 
advertising obligations and the short range hiring 
goals, should also take into account the need to cor­
rect the present effects of the employer’s past dis­
criminatory practices.

2. The goals should be reached through such re­
cruiting and advertising efforts as are necessary and 
appropriate, and the selection of persons only from 
amongst those who are qualified. A goal, unlike a 
quota, does not require the hiring of persons when 
there are no vacancies, nor does it require the hiring 
of a person who is less likely to do well on the job 
(“ less qualified”) over a person more likely to do 

well on the job (“ better qualified”), under valid se­
lection procedures. When the standards for deter-



15a

mining qualifications are invalid and not predictive 
of job success, valid selection procedures should be 
developed as soon as feasible. Where an employer 
has followed exclusionary practices, however, and has 
made little or no progress in eliminating the effects 
of its past discriminatory practices, the selection 
standards it proposes to utilize in determining who 
is “qualified,” or “better qualified” will be exam­
ined with care to assure that they are in fact valid 
for such purposes and do not perpetuate the effects 
of the employer’s past discrimination (i.e., which 
have as little discriminatory impact as possible under 
the circumstances) and do not raise artificial or un­
necessary barriers.

3. In no event does a goal require that an employer 
must in all circumstances hire a specified number of 
persons, because such a goal would in fact be a quota. 
I t is, however, appropriate to ask a court to impose 
goals and timetables, including hiring goals, on an 
employer who has engaged in racial or ethnic exclu­
sion, or other unconstitutional or unlawful employ­
ment practices. The goals we seek in court, like those 
accepted voluntarily by employers, are subject to 
the limitations set forth in this memorandum.

4. As a general matter, relief should be provided 
to those persons who have been adversely affected 
as a consequence of the employer’s unlawfully dis­
criminatory practices. All agencies will continue to 
seek insofar as feasible to have persons who can show 
that they were injured by such practices restored to 
the position they would be in but for the unlawful 
conduct. In addition, all agencies will seek to have 
those persons who have been excluded from considera­
tion or employment because of such discriminatory 
practices allowed to compete for future vacancies on



16a

the basis of qualifications and standards no more 
severe than those utilized by the employer in selecting 
from the advantaged groups, unless the increased 
standards are required by business necessity. Such 
relief will he sought to prevent the erection of un­
necessary barriers to equal employment opportunities. 
Such relief will not preclude a public employer from 
adopting merit standards; nor will it preclude such 
an employer who has previously used invalid selection 
standards or procedures from developing and using 
valid, job related selection standards and procedures 
as contemplated by paragraphs 2 and 5 of this 
memorandum.

5. Where an employer has utilized a selection device 
which is itself unlawfully discriminatory, relief should 
be sought to prohibit the use of that and similar selec­
tion devices (i.e., devices which measure the same 
kinds of things) together with the development of an 
appropriate affirmative action plan which may include 
goals and timetables in accord with the principles set 
forth in this paper. In addition, we will ask the courts 
to permit the employer to select (or develop) and 
validate a job related selection procedure which will 
facilitate selections on the basis of relative ability to 
do the job. The speed with which such new selection 
devices can and should be developed and validated 
depends upon the facts and circumstances of each 
ease.

Agencies with equal employment opportunity re­
sponsibilities should take actions in accordance with 
the principles outlined in this memorandum in order 
to assure a coordinated approach within the Executive 
Branch to eliminate, discriminatory employment prac­
tices and their consequences.

U .S .  GOVERNMENT PRINTING OFF ICE:  1977