Bakke v. Regents Brief of the National Medical Association, The National Bar Association, and The National Association for Equal Opportunity in Higher Education Amici Curiae

    JAMES M. fWBRIT, III 
ASSOCIATE-COUNSEL

IN THE

Supreme (Emtrt n! Hit States
October T erm, 1976

No. 76-811

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

v.
A l l a n  B a k k e , Respondent.

On Petition for a Writ of Ce.'iiorari to the Supreme Court 
of the Staie of California

BRIEF OF
THE NATIONAL MEDICAL ASSOCIATION, INC, 

THE NATIONAL BAR ASSOCIATION, INC. 
AND

THE NATIONAL ASSOCIATION FOR EQUAL 
OPPORTUNITY IN HIGHER EDUCATION 

AMICI CURIAE

On Brief
Genna Rae McNeil, P h .D .  
Michael R . Winston, P h .D .  
Herschelle Reed

Student Assistants

Herbert 0. Reid, Sr.
•I. Clay Smith, J r.
Howard University School of Law 
2935 Upton Street, N.W. 
Washington, D.C. 20008

Robert L. Bell 
Tamara D . Harris 
Carolyn F . Smith 
Eszart A. Wynters 
Albert S. Harris, J r. 
Robert H. Thompson

Counsel for The National Medical 
Association, Inc., The National Bar 
Association, Inc., and The National 
Association for Equal Opportunity 
In Higher Education



INDEX
Page

Opinions B elow ....................................................................... 1

J urisdiction .............................................................................  2

Questions P resented ............................................................  2

Constitutional P rovision ............................................. • • • 2

Consent to F iling ................................................................  2

I nterest of the A mici Curiae ........................................... 2

S tatement op the Ca s e ........................................................ 2

Argument .................................................................................  9
I. T he State of California's “ A ffirmative A c­

tion”  P rogram in  E ducation and I ts Constitu­
ent Admissions at the  Davis Medical S chool 
A re P ermissible U nder the  F ourteenth 
A mendment ..................................................................  9

II. T he U se of R acial Classification to P romote 
I ntegration or to Overcome the E ffects of 
P ast D iscrimination I s N either “ S uspect”
N or P resumptively U nconstitutional .............  33

III. T he R ation ale of B rown Commands the R e­
versal of the California S upreme Court . . . .  56

Conclusion ...............................................................................  75

A ppendix A  ...................    l a

A ppendix B .................     12a

A ppendix C 13a



11 TABLE OF AUTHORITY
Table oe Cases: Page
Allen v. Superior Court In and For San Diego County,

340 P.2d 1030, 171 C.A. 2d 444 (1959) ................. 23
American Communications Association v. Douds, 339

U.S. 382 (1950) .......... .......................................  50
BaJcke v. Regents of University of California, 553 P.2d

1152 (1976) ............     32,34,41,70
Banks v. Housing Authority of the City and County of 

San Francisco, 260 P.2d 668, 120 Cal. App. 2d 1
(1953) ........................................................   12

Berea College v. Kentucky, 211 U.S. 45 (1908) .........  40
Board of Education v. Swann, 402 U.S. 43 (1971). 44,45, 56
Bolling v. Sharpe, 347 U.S. 497 (1954) ...................  40,41
Boynton v. Virginia, 364 U.S. 454 (1960) ..................  24
Breedlove v. Suttles, 302 U.S. 277 (1937) .................... 38
Brown v. Board of Education, 347 U.S. 483, (1954) 349

U.S. 294 (1955) .......................  19, 24, 40, 41, 46, 52, 71
Buchanan v. Warley, 245 U.S. 60 (1917) ...................... 38
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert.

denied 406 U.S. 950, 32 L.Ed. 2d 338 (1972) ......... 44
Castro y . California, 466 P.2d 244, 85 Cal. Rptr. 20

(1970) ...................................................................  10
Civil Bights Cases, 109 U.S. 3 (1883) ......................... 34
Corrigan v. Buckley, 271 U.S. 323 (1926) .................. 38
Crawford v. Board of Education of the City of Los 

Angeles, 551 P.2d 28, 130 Cal. Rptr. 724 (1976) . . 21
Gumming v. Richmond, County Board of Education,

175 'U.S. 528 (1899) . . . . ! .................................... 36,40
DeFunis v. Odegaard, 416 U.S. 1038 (1974) ................  48
Dennis y . United, States, 341 U.S. 494 (1951) ............  50
Dred Scott v. Sanford, 19 How. 393 (1856) .......  10,58, 73
F. S. Royster Guano Co. v. Virginia, 253 U.S. 412

(1920) ...................................................................  47
Fairchild v. Raines, 151 P.2d 260, 24 Adv. Cal. 812

(1944) .................................................................... 12
Firth v. Marowick, 116 P. 729 (1911) .........................  12
Fletcher v. Peck, 6 Cranch 87 (1870) ........................... 50
Forest Laivn Association v. de Jarnette, 250 P. 581, 79

Cal. A pn. 601 (1926) ..............................................  12
Gayle v. Browder, 352 U.S. 903 (1956) .................... 39,41
Gong Lum v. Rice, 275 U.S. 78 (1927)_.......................  40
Grovery v. Townsend, 295 U.S. 45 (1936) ................  38
Guinn v. 77.,S’., 238 U.S. 347 (1915) ..........................  38
Harmon v. Tyler, 273 U.S. 609 (1927) .......................  38
Hill y . Texas, 316 U.S. 400 (1942) ................................ 38



Table of Authority Continued m 
Page

Hodges v. United States, 203 TJ.S. 1 (1906) ............  39, 50
Home Teleph. and Teleg. Co. Los Angeles, 227 U.S.

278 (1913) ............................................................  12
Hunter v. Erickson, 393 TJ.S. 388 (1969) ................... 41
Jackson v. Pasadena City School District, 382 P.2d 878,

31 Cal. Rptr. 606 (1963) ....................... ...........  15
Jones y. Mayer Co., 392 TJ.S. 409 (1968).......  38, 41, 42, 59
Korematsu v. United States, 323 TJ.S. 214 (1944).......  46
Lane v. Wilson, 307 U.S. 268 (1939) ..........................  38
Lau v. Nichols, 414 U.S. 563 (1974) ............................  18
Lee v. Johnson, 404 U.S. 1215 (1971) ................ 18,19
Lombard v. Louisiana, 373 U.S. 267 (1963) ................  39
Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186

P. 596 (1919) ......................................................  11
Mayor of Baltimore v. Dawson, 350 U.S. 879 (1955).. 39
McCabe v. Atchison, Topeka and Santa Fe Railroad,

235 U.S. 151 (1914) ............................................  39
McLaughlin v. Florida, 379 U.S. 184, 13 L.Ed. 2d 222

(1964) ............................................................... 46,47
McLaurin v. Oklahoma, 339 U.S. 639 (1950)............  41, 50
Mendez v. Westminister School District of Orange 

County, 64 F. Supp. 554 (1946), affirmed 161 F. 2d
724 ( ) ............................................................  14

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1937) 41
Moore v. Dempsey, 261 U.S. 86 (1923) .......................  39
Morton v. Mancari, 417 U.S. 535 (1974) .....................  67
Nebbia v. New York, 291 U.S. 502 (1934)_ . ; ............ . 47
New Orleans Park Improvement Association v. De-

tiege, 358 U.S. 54 (1955) .....................................  39
Nixon v. Herndon, 273 U.S. 536 (1927) .......................  38
Norris v. Alabama, 294 U.S. 587 (1933) .....................  50
Norwalk Core v. Norwalk Redevelopment Agency, 395

F.2d 920 (2nd Cir. 1968) .....................................  48
Pearson v. Murray, 182 A. 590 (1936) .......................  41
Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948).... 10
Plessy v. Ferguson, 163 U.S. 537 (1896) ................  35, 56
Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970)............. 40
Reitman v. Mulkey, 413 P.2d 825 (1964), affirmed 387

U.S. 369 (1967) ...................................................  13
San Antonio Independent School District v. Rodriguez,

411 TJ.S. 1 (1973) ................. ....................... 19
San Francisco Unified School District v. Johnson, 3

Cal. 3d. 934, 479 P.2d 669 (1971) ......................... 21
Serrano v. Priest, 96 Cal. Rptr. 601 (1971) ........ 18



iv Table of Authority Continued
Page

Shelly v. Kramer, 334 U.S. 1 (1948) .................... 12, 38, 50
Sipuel v. Oklahoma, 332 U.S. 631 (1948) .................... 41
Slaughter-House Cases, 16 Wall. 36 (1873) . . . .  35,41,73
Smith v. Texas, 311 U.S. 128 (1940) .............................  38
South Carolina v. Katzenbach, 383 U.S. 301 (1966).. 33
Steele y . Louisville and Nashville Railroad Company,

323 U.S. 192 (1944) ........................................... 39, 50
Strauder v. West Virginia, 100 U.S. 303 (1880) . . . .  46, 50 
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .........................................  44,45,46
Sweatt y . Painter, 339 U.S. 629 (1950) .......................  41
United Jewish Organization v. Carey, — U.S. —, 97

_ S.Ct. 996 (1977) .................................................... 32
United States v. Cruikshank, 92 U.S. 542 (1876).......  35
United States v. Jefferson County Board of Education,

372 F. 2d 836 (5th Cir. 1966); cert, denied 389 U.S.
840, 19 L.Ed. 2d. 103 (1967) ................................  44

Ward v. Flood, 48 Cal. 36,17 Am. Rep. 405 (1874) . . . .  16
Wayt v. Patee, 205 Cal. 46, 269 P.660 (1928)............  12
Wong Him v. Callahan, 119 F. 381 (1902) ................  17

Constitution :
U.S. Constitution Amendment X I I I ....... . 32, 35, 74
U.S. Constitution Amendment XIV ...................  passim
U.S. Constitution Amendment X V ................ ...........  33

S tatutes:

Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d. .18, 32
12 Stat. 796 (1863) ....................................................  62
13 Stat. 507 (1865) ....................................................  62
14 Stat. 176 (1866) ...........................................   64
15 Stat. 20 (1867) ......................................................  65
45 Stat. 1021 (1928) ...................................................  68
71 Congressional Globe 918 .............. .........................  63
74 Congressional Globe 3838 ................................ . 63
California Civil Code, § 53 ......................................... 14



Table of Authority Continued v
Page

California Civil Code, § 782 .......................................  14
California Election Code, § 201, (West Supp., 1974).. 11
California Election Code § 1611 (West Supp. 1974).. 11
California Election Code § 14201.5 (West Supp. 1974) 11
Concurrent Resolution 151 (ACR 151) (1974)

24, 25, 26, 27, 28
Hawkins Act (Formerly Health & Safety Code, §§ 

35700-35741) ......................................    14
Rumford Fair Housing Act (Health and Safety Cal.

Code, §§ 35700-35744) ........................................... 14
School Law, California, April 4, 1870 (LAWS 1869-70,

Pg. 838) ..............   16
The TTnruh Civil Rights Act (Cal. Civil Code, (A 51-52) 14
West Annotated California Codes, Evidence Code, 

#451 ...........................    23

R eports :
California Commission Report, “ Equal Educational 

Opportunity in California Post Secondary Educa­
tion,” Part I (April, 1976) .................................. 24

Commerce Department, Bureau of the Census, “ Popu­
lation . . .” (1970) ................................................  51

Hefferlin, et al, “ California’s Educational Needs: A 
Feasibility Study,” Part I (September, 1975).... 23

“ The Bakke Decision: Disadvantaged Graduate Stu­
dents” Assembly Education Subcommittee On 
Post Secondary Education, California Legisla­
ture, Transcript and Statement, Sacramento, Cali­
fornia (March 2, 1977) ................................  24, 42, 43

“ Unequal Access to College: Postsecondary Oppor­
tunities and Choices of High School Graduates”, 
Assembly Permanent Subcommittee on Postsec­
ondary Education, Staff Report, Sacramento, 
California (November, 1975) .................. 27, 28, 29, 30

United States Commission on Civil Rights, A Genera­
tion Deprived: Los Angeles School Desegregation 
(May, 1977) ................................................... 17,18,21



vi Table of Authority Continued
Page

United States Commission on Civil Rights, Desegrega­
tion of the Nation’s Public Schools (August, 1976) 18

United States Commission on Civil Rights, Fulfilling 
the Letter and Spirit of the Law: Desegregation of 
the Nation’s Public Schools (August, 1976).........  22

United States Commission on Civil Rights, State Poli­
cies Against Racial Imbalance (1963) ................  20

United States Commission on Civil Rights, Racial Iso­
lation in the Public Schools (1967) .....................  19

United States Commission on Civil Rights, The Fed­
eral Civil Rights Enforcement Effort: To Ensure 
Equal Educational Opportunity (January, 1975) .31, 32

United States Commission on Civil Rights, The Fifty  
States Report, State Advisory Committees (1961) 17

United States Commission on Civil Rights, The Voting 
Rights Act: Ten Years After, (January, 1975)... 10

Other A uthokity :

Abramowitz, E. “ Black Enrollment in Medical 
Schools: More Promise than Progress.” Howard 
Univ., Washington, D.C. (unpublished study 1977) 54

Address by Senator Edward Brooke, “ Crisis in A f­
firmative Action” Washington, D.C. (May 25, 
1977) .......  .......................................................  42,72

Address by President Lyndon B. Johnson, Civil Rights 
Symposium: Dedication of the Lyndon Baines 
Johnson Library, Austin, Texas (December, 1972) 72

Bardolph, The Civil Rights Record. (New York, 1970) 38
Bently, History of the Freedmen’s Bureau. (1974) . . .  65
Berry, Black Resistance/White Law. (New York, 1971) 39
Blackwell, Access of Black Students to Graduate and 

Professional Schools, 5 Southern Educational
Foundation (1975) .........................................  33

Blaustein and Ferguson, Desegregation and the Law
(Knoff, 1962) ............    56

Dorsen, The Rights of Americans. (New York, 1970) 50
Ely, The Constitutionality of Reverse Racial Discrimi­

nation, 41 IT. Chi. L. R. 723 (1974) .....................  46
Fleming, J., The Lengthening Shadow of Slavery.

(Washington, D.C., 1976) ...................................  39
Griffin, Admissions: A Time for Change, 20 How. L.J.

128 (1977) ..............   52



Table of Authority Continued vii 
Page

Gnnther, Foreword: In Search of Evolving Doctrine 
on a Changing Court: A Model for a Newer Equal
Protection, 86 Harv. L.R. (1972) .............. .........  47

Hansen, The Immigrant in American History. (1940) 71
Hastie, W., Toward An Equalitarian Legal Order, 407 

Annals of the American Academy of Political and
Social Science, (1973) ..........................................  38

Houston, “ The Need for Negro Lawyers,” 4 Journal
of Negro Educat-ion, 49 (1935) ........................... 51, 52

House Report No. 121 (July 15, 1870) .......................  65
Karst, Affirmative Action and Equal Protection, 60

Ya. L.R. 955 (1974) ..............................................  60
Kluger, Simple Justice. (New York, 1977) ................ 39
Kongsgaard, Thomas, Judicial Notice and the Califor­

nia Evidence Code (1966) ...................................  24
Logan, Betrayal of the Negro (New York, 1965).......  38
Logan, Howard University The First Hundred Tears

1867-1967 (New Yorkj 1969) ............................ _. . 65
Mangum, The Legal Status of the Negro. (Chapel Hill,

1940} ................ ..., .............................................. 38
McNeil, Charles Hamilton Houston 3 Black L.J. 123

(1974) ...................................................................  40
Miller, The Petitioners. (New York, 1956) .................. 39
Ming, Racial Restrictions and the Fourteenth Amend­

ment: The Restrictive Covenant Cases, 16 U. Chi.
L. Rev. 203 (1949) .................. ....................... 12

Morse, Bakke, v. Regents of the University of Califor­
nia: Preferential Racial Admissions, An Uncon­
stitutional Approach Paved with Good Intentions
12 New England Law Rev. 719 (1977) ................  9

Murray, State’s Laws On Race & Color, (Cincinnati
Supp. 1955) ..........................................................  10

National Bar Association, “ Survey of the Black Law-
■ yer” , Washington, D'.C. (1972) ...........................  51

Note, “ Developments in the Law of Equal Protec­
tion”, 82 Harvard L. Rev. 1065 (1969) ..............  47

Raper, The Tragedy of Lynching (Chapel Hill, 1933) 39
Rudd, Memorandum to the Executive Committee, As­

sociation of American Law Schools, Washington,
D.C. (April 1, 1977) ............................................  50

Shuman, A Black Lawyers Study, 16 Hoiv.L.J. 225 
(1971) ....................... ........................................... 53



viii Table of Authority Continued
Page

Slocum, “ Statistical Information of The Black Law­
yer”, Council on Legal Education Opportunity,
Washington, D.C. (April 7, 1977) ......................  51

Smith, Towards a Houstonian School of Jurispru­
dence and the Study of Pure Legal Existence. 18
How.L.J. (1973) ..........................................48,57,60

Spero and Harris, The Black Worker (Reprint ed.,
New York, 1968) .................................................  39

Styles, Negroes and the Law, (1937) ....................... .. 52
Tollett, Black Lawyers, Their Education and the Black 

Community, 17 How. L.J. 326 (1972) ................  49, 53
Tollett, “ Present Context of Graduate Education and 

the Potential Impact on Minority Participation” 
(Spring, 1975) (Unpublished paper at the How­
ard Univ. Institute for The Study of Educational
Policy, 1975) .........................................................  70

U. S. President, Lyndon B. Johnson, “ Message Rela­
tive To The Right To Vote”, Washington, D.C.
(March 15, 1965) ..................................................  61

Watson, “ The Future of Graduate and Professional 
Schools, Conference on Advancing Equality of 
Opportunity: A Matter of Justice” (Washington,
D.C., May 15, 1977) ............................................  52

Weaver, Negro Labor (New York, 1946) .................... 39
Woodward, The Strange Career of Jim Crow, (New 

York, 1866) .............................................. ............ 38



IN THE0tsprm£ (Emxrt nf t e  Inttefc l&ates
October Term, 1976

No. 76-811

T he R egents of the U niversity of California, 
Petitioner,

v.
A llan Bakke, Respondent.

On Petition for a Writ of Certiorari to the Supreme Court 
of the State of California

BRIEF OF
THE NATIONAL MEDICAL ASSOCIATION, INC. 

THE NATIONAL BAR ASSOCIATION, INC. 
AND

THE NATIONAL ASSOCIATION FOR EQUAL
OPPORTUNITY IN HIGHER EDUCATION 

AMICI CURIAE

OPNIONS BELOW

The opinion of the California Court is reported at 18 
Cal.3d 34, 132 Cal. Rptr. 680, 553 P.2d 1152 (1976). The 
order denying the University’s petition for rehearing is 
not reported. The modification to the California Supreme 
Court’s opinion prompted by7 the University’s rehearing 
petition is reported at 18 Cal.3d 252b. The opinion of the 
state trial court, the trial court’s “ addendum to notice of 
intended decision,” its findings of fact and conclusions of 
law and its judgment are not reported. These several 
opinions and actions of the California Courts are reprinted



2

as Appendices A through Cf to the Petition for Writ of 
Certiorari filed herein. The ease proceeded directly from 
the trial court to the highest state court. Accordingly, 
there is no intermediate appellate court opinion.

JURISDICTION

The jurisdiction of this Court rests on 28 U.S.C. § 1257 
(3). Certiorari was granted on 22 February 1977.

QUESTIONS PRESENTED

Is it constitutionally permissible for a state medical 
school to utilize as criteria for selection, among qualified 
applicants to study medicine, factors such as the appli­
cant’s race, sex, work experience, prior military experi­
ence and other background for the purpose of increasing 
the access of minority students to medical education, im­
proving the quality of the medical education of all its 
students, and producing graduates best calculated to im­
prove and extend medical care to the State’s inhabitants?

CONSTITUTIONAL PROVISIONS

The Fourteenth Amendment to the Constitution of the 
United States provides:

. . nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.”

CONSENT TO FILING

This Amici Curiae brief is being filed with the consent 
of all parties to the proceeding.

INTEREST OF THE AMICI CURIAE

The National Medical Association is a professional or­
ganization which represents the 8,000 American Physi­
cians who are Black. The objectives of the National



3

Medical Association are to raise the standards of the 
medical profession and of medical education; to stimulate 
favorable relationships among all physicians; to nurture 
the growth and diffusion of medical knowledge; to sponsor 
the education of the public concerning all matters affecting 
the public health; to sponsor the enactment of just medical 
laws; and to eliminate religious and racial discrimination 
and segregation from American medical institutions.

The Association was formed in 1895 in Atlanta, Georgia, 
and incorporated in St. Louis, Missouri, August 31, 1923, 
under the laws of the State of New Jersey.

The Association maintains national headquarters at 1720 
Massachusetts Avenue, N.W., Washington, D.C. (20036). 
It publishes a monthly scientific journal entitled The Jour­
nal of the National Medical Association and an all-member­
ship news and features publication entitled NMA News. Its 
president is Dr. Arthur H. Coleman, San Francisco, Cali­
fornia.

The National Bar Association is a professional member­
ship organization which represents the more than 7,000 
Black attorneys in the United States.

The National Bar Association was incorporated under 
the laws of the State of Iowa in 1925, over two decades 
before Black attorneys were allowed membership in the 
American Bar Association, and at a time when very few 
law schools in the United States admitted Black enrollees.

The Articles of Incorporation of the NBA state the objec­
tives of the Association as being, in part, to :

“ [A]dvanee the science of jurisprudence, uphold the 
honor of the legal profession, . . . and protect the civil 
and political rights of all citizens of the several states 
and of the United States.”

One of the primary reasons for the birth of the Associa­
tion in 1925, was to achieve equalization of opportunities



4

for minorities in the legal profession in order to further 
the goal of equal justice for all. In its fifty-two years, the 
Association has seen the number of Black attorneys in the 
United States grow from a fraction of a percentage point 
of the total to almost 2% today. However, Blacks (as well 
as other minorities and women), are still grossly under­
represented in the legal profession—and, for that matter, 
in the medical and other professions, as the text of the 
BakJce case indicates.

Thus far, the most effective methods proven to ameliorate 
that condition, and certainly the most critical factors in 
the doubling of the number of Black attorneys in America 
in the past decade, have been the affirmative action pro­
grams initiated by a number of law schools since around 
1968. This was also the year that the National Bar Associa­
tion, in partnership with the ABA, the American Associa­
tion of Law Schools and the Law School Admissions Coun­
cil, founded the Council on Legal Educational Opportunity, 
whose stated goal was to increase the enrollment of minor­
ity students in American law schools.

The legal profession has perhaps been more significant 
than any other in shaping the fortunes and destinies of the 
American people, majority and minority alike. It is common 
knowledge that until a few’ years ago, all but a minuscule 
number of Blacks were excluded from the profession. In 
fact, as recently as 1950, Blacks were forced to invoke the 
powers of the U.S. Supreme Court in order to gain admis­
sion to tax-supported law schools in parts of this country. 
Although the situation is somewhat better today, it would 
not be inaccurate to state that, at our present rate of prog­
ress, we are still many years away from true equality in 
our justice system and proportionate representation of 
Blacks in the legal profession.

The Association maintains a National Headquarters at 
1900 L Street, NAT., Washington, D.C. (20036). Its presi­
dent is Carl J. Character, Cleveland, Ohio.



5

The National Association for Equal Opportunity in
Higher Education, 2001 S Street, NW., Washington, D.C.
(20009), organized October 7, 1969, is a voluntarily inde­
pendent association of Presidents of 107 predominantly
Negro Colleges and Universities.

Its Board of Directors and officers are as follows:
President—Dr. Charles A. Lyons, Jr., Fayetteville State 

University, North Carolina.
Vice President—Dr. Luther H. Poster, Tuskegee Institute, 

Alabama.
Vice President—Dr. Samuel L. Myers, Bowie State College, 

Maryland.
Vice President—Dr. J. Louis Stokes, Utica Junior College, 

Mississippi.
Secretary—Dr. Milton K. Curry, Jr., Bishop College, Texas.
Treasurer—Dr. M. Maceo Nance, Jr., South Carolina State 

College, South Carolina.
Immediate Past President—Dr. Herman B. Branson, Lin­

coln University, Pennsylvania
Dr. Ernest A. Boykins, Mississippi Valley State University, 

Mississippi.
Dr. Oswald P. Bronson, Bethune-Cookman College, Florida.
Dr. Samuel D. Cook, Dillard University, Louisiana.
Dr. Norman Francis, Xavier University, Louisiana
Dr. Charles L. Hayes, Albany State College, Georgia.
Dr. Frederick S. Humphries, Tennessee State University, 

Tennessee.
Dr. Allix B. James, Virginia Union University, Virginia.
Dr. Luna I. Mishoe, Delaware State College, Delaware.



6

Dr. Lionel H. Newsom, Central State University, Ohio.
Dr. John A. Peoples, Jr, Jackson State University, Missis­

sippi.
Dr. Henry Ponder, Benedict College, South Carolina.
Dr. Prezell R. Robinson, Saint Augustine’s College, North 

Carolina.
Dr. James A. Russell, Jr., Saint Paul’s College, Virginia.
Dr. Julius S. Scott, Jr., Paine College, Georgia.
Executive Secretary—Miles Mark Fisher, IV.1

This Association was organized to articulate the need 
for higher education systems not limited as to quantity or 
quality by race, income, or previous educational limitations 
nor other determinants not based on abiilty.

This is an association of those Colleges and Universities 
which are not only committed to this ultimate goal, but are 
now fully committed in terms of their resources, human 
and financial, to achieving this goal. The Association pro­
posed, through the collective efforts of its membership, to 
promote the widest possible sensitivity to the complex fac­
tors involved and the institutional commitment required to 
create successful higher education programs for students 
from groups buffered by the racism, exploitation, and neg­
lect of the economic, educational and social institutions of 
America.

Thus, this Association has a unique interest in this 
litigation.

These historically Black institutions without exception 
have, from the very beginning of their existence, been open

1 See Appendix A, which list the Presidents of the traditionally 
Black Institutions of Higher Education, which constitute the mem­
bership of the National Association for Equal Opportunity in 
Higher Education.



7

to all races, sex, colors, creeds, and they have always col­
lectively offered employment and other incidental privileges 
to all who passed through their doors, except where State 
law prohibited the same. They have been menders, healers 
for wounded minds and restless souls. They have produced 
sterling talent which has benefited this Republic beyond 
measure of calculation—not only in material contribution, 
but intellectual, cultural, moral and spiritual offerings. In 
a number of instances, Black institutions have been more 
profoundly representative of the American Ethic than the 
larger, more affluent, schools of Higher Education in this 
country. Indeed, they were founded and remain today as 
“ Affirmative Action” programs committed to a public offer­
ing of education attainment.

These historically Black Institutions of Higher Educa­
tion have welcomed, nurtured and developed the progeny 
of the slave system.

The institutions whose views are presented in this Amici 
Brief, have backgrounds of perpetual service to all people, 
with missions and goals to make educational opportunities 
a reality rather than an empty expectation. These institu­
tions believe that other institutions with ignominious his­
tories of selective exclusion of Blacks, and other minorities 
ought to be permitted, and even more so commanded to 
adapt and promote “ affirmative action” programs to 
achieve minority access to higher education in enrollment, 
employment and over all participation where these institu­
tions have labored so long in the vineyards alone desper­
ately seeking to overcome the disablements visited upon the 
principal victims of a racist society.

STATEMENT OF THE CASE

Allan Bakke, a Caucasian, was denied admission to the 
medical school of the Hniversity of California at Davis, a 
publicly financed institution, for the academic years com­
mencing September 1973 and 1974. In neither year was he



8

accepted by any other medical school. Bakke believed his 
rejections were due to the acceptance of less qualified mi­
nority applicants admitted under the University’s special 
admissions program. This program separately considered 
the admissions credentials of disadvantaged applicants 
from particular racial groups.

A. The Lower Court Decision
Bakke brought suit against the Board of Begents in Yolo 

County Superior Court. He argued that the minority pref­
erence program racially discriminated against Mm as a 
white applicant, and, therefore was violative of the Equal 
Protection Clause of the Fourteenth Amendment of the 
U.S. Constitution, the privileges and immunities clause of 
the California constitution, and Title VI of the Civil Bights 
Act of 1964. He sought a mandatory injunction and declara­
tory relief ordering his admission.

The University contended that Bakke would have been 
rejected whether or not it operated a special admissions 
program. It filed a cross-complaint for declaratory relief, 
however, to enable the trial court to rule independently on 
the constitutionality of its minority admissions policy, irre­
spective of Bakke’s particular claim.

Begarding this cross-complaint, the court held that the 
special admissions program violated the Fourteenth 
Amendment of the U. S. Constitution, the California con­
stitution, and the Civil Bights Act of 1964. It rejected, how­
ever, Bakke’s request for an injunction, finding that he had 
not proven he would have secured admission in either year 
despite the special program. Although both parties appealed 
to the Court of Appeals, the Supreme Court of California 
assumed control of the case due to the important questions 
presented.

B. The California Supreme Court Decision

The Supreme Court affirmed the trial court’s conclusion 
that the minority special admissions program was unconsti-



9

tutional. It reasoned that the racial classifications used by 
the program denied non-minority applicants admission to a 
program they would have enjoyed but for their race. Ac­
cordingly, these racial classifications were considered “ sus­
pect,” and, therefore, subject to a “ strict scrutiny” equal 
protection standard of review. In applying this standard, 
the court assumed, arguendo, that most of the program’s 
goals established a “ compelling” state interest. Neverthe­
less, the court held the program invalid because the Univer­
sity had failed to prove that its objectives could not be by 
means less burdensome to the majority’s rights.

Concerning Bakke’s prayer for injunctive relief, the 
Supreme Court remanded the question to the trial court. 
Since Bakke established that the University had discrimi­
nated against him, the University, on remand, had the 
burden of proving that he would have been denied admis­
sion without the operation of the constitutional impermis­
sible special minority admissions program. Amici has 
adopted the statement of the case from Comment on Bakke 
at 12 New England Law Rev. 719 (1977).

A R G U M E N T

I. THE STATE OF CALIFORNIA'S "AFFIRMATIVE ACTION" 
PROGRAM IN EDUCATION AND ITS CONSTITUENT AD­
MISSIONS PROGRAM AT THE DAVIS MEDICAL SCHOOL 
ARE PERMISSIBLE UNDER THE FOURTEENTH AMENDMENT.

State policy in California, as reflected in (a) judicial 
opinions and (b) legislative action, found racial discrimi­
nation and exclusion rampant in the state’s experience and 
directed and mandated programmatic activity for the pur­
pose of bringing about greater access and educational op­
portunities for racial minorities in the state.

California, taking its cue from the other states in the 
Union perpetuated its badges of slavery. This is illustrated 
by an examination of the following areas:



10

A. Miscegenation

California’s miscegenation statute was not declared un­
constitutional until 1948. Perez v. Sharp, 32 Cal., 2d 711, 198 
P.2d 17 (1948), (Miscegenation was a badge listed by Jus­
tice Taney, in Bred Scott v. Sanford, 19 How. 393, 403, 407, 
(1856), as evidence of the inability of the people of African 
descent to become members of the body politic). California 
Civil Code, 1949 provided: Section 60. [Marriage of white 
and other persons.] All marriage of white persons with 
Negroes, Mongolians, members of the Malay race, or mulat- 
toes are illegal and void. [Enacted 1872; Amended by Stats. 
1905, p. 554; Stats. 1933, p. 561.]

In Perez v. Sharp, supra, it was held that Sections 60 and 
69 of the Civil Code were unconstitutional, contrary to the 
First and Fourteenth Amendment of the Constitution of 
the United States. See Murray, States Laws on Race and 
Color, p. 47 (1955) (Supp.).

B. Voting

In a report by the United States Commission on Civil
Eights; The Voting Rights Act: Ten Years After, January, 
1975, substantial racial discrimination against Blacks and 
other minorities, in voting in California was documented. 
For example, two (2) counties in California—Monterey 
and Yuba—-have been brought under the special coverage 
of the Voting Eights Act Amendments of 1970. This was a 
result of Congress amending the trigger provisions of this 
Act to refer to the 1967 election and the 1968 election.

Also, in Castro v. California, 466 P.2d 244, 258, 85 Cal. 
Eptr. 20 (1970). The California Supreme Court found that 
the state’s English-language literacy requirements to be a 
violation of the equal protect! n cl mse of the Fourteenth 
Amendment. The court, howere’, did not eliminate the 
requirement of literacy altogether, or order the development 
of a “ bilingual electoral apparatus”.



11

Subsequently, the California State Legislature enacted 
legislation which required county officials to make reason­
able efforts to recruit bilingual registrars and election offi­
cials in precincts with three (3) percent or more Non-Eng­
lish speaking voting age population. Cal. Election Code 
§§201,1611 (West Supp. 1974).

In addition, California now requires the posting of a 
Spanish-language ballot, with instructions, that also must 
be provided to voters on request for their use as they vote. 
Cal. Election Code §14201.5 (West Supp. 1974). See Ten 
Years After, supra, at 24-25.

Although the impact of the Voting Rights Act has been 
the greatest in the southern states, discrimination in voting 
is not limited to the south. The Commission on Civil Rights 
has emphasized:

“ [T]he problems encountered by Spanish speaking 
persons and native Americans in covered jurisdictions 
are not dissimilar from those encountered by Southern 
blacks. . . . ” Id. at 16.

California law now requires county officials to recruit 
bilingual poll watchers. Cal. Election Code § 1611 (West 
Supp. 1974). Also, California has recently passed legisla­
tion that allows Spanish to be spoken at the polls. Id. at 165.

C. Housing

Racial segregation and discrimination in the area of land 
use and occupation, has a shameful history in the State of 
California, sanctioned by the legislature and protected by 
the judiciary.

The judicial protection is evidenced in Los Angeles Invest­
ment Co. v. Gary, 181 Cal. 680, 186 P.596 (1919), where the 
California Supreme Court held that the Fourteenth Amend­
ment proscription of discrimination against Blacks did not 
apply to contracts between individuals. The court concluded 
that a provision in a deed which prohibits the occupation



12
of property by anyone not of the white race, is a valid con­
dition and not a restraint upon alienation. The proposition 
that racially discriminatory covenants restraining the use 
or occupancy of land was continuously upheld by the Cali­
fornia courts in Wayt v. Patee, 205 Cal. 46, 269 P.660 
(1928); Forest Lawn Association v. de Jarnette, 250 P.581, 
79 Cal. App. 601 (1926); Fairchild v. Raines, 151 P.2d 260; 
24 Adv. Cal. 812 (1944).

A condition in a deed forbidding the renting or sale of 
the land to persons other than of the Caucasian race, and 
occupation by persons other than of that race was held not 
to violate the equal protection clause of the Fourteenth 
Amendment, Home Teleph. and Teleg. Co. v. Los Angeles, 
227 U.S. 278, (1913) • Firth v. Marowick, 116 P.729 (1911), 
rev’d. 227 TJ.S. 278 (1913).

The aforementioned cases indicate a pattern of de jure 
segregation in housing in the early 1900’s.

In Shelly v. Kraemer, 334 U.S. 1 (1948), the United 
States Supreme Court held that it was in violation of the 
equal protection clause of the Fourteenth Amendment for 
a state court to enforce private agreements to exclude per­
sons of a designated race or color from the use or occupancy 
of real estate for residential purposes. See Ming, “ Racial 
Restrictions and the Fourteenth Amendment: The Restric­
tive Covenant Cases,” 16 77. Chi. L. Rev. 203 (1949). De­
spite the mandate in Shelly, supra, outlawing state action 
in maintaining discriminatory housing patterns, the state 
of California failed to act affirmatively to cure its shameful 
past history. For, in Ranks v. Housing Authority of the 
City and County of San Francisco, 260 P.2d 668, 120 Cal. 
App. 2d 1 (1953) at issue was policy implemented by the 
housing authority, that allocated dwelling units to racial 
groups based on their proportional needs and neighbor 
hood racial patterns. The state appellate court found that 
the policy was tantamount to the executive branch of the 
government enforcing restrictive covenants which the ju-



13

dicial branch is prohibited from doing by the Fourteenth 
Amendment. The decision further noted that the housing 
authority was exercising state action by preservation, per­
petuation and enforcement of a neighborhood racial pat­
tern whenever a formal decision was made to locate and 
construct a housing project.

In Reitman v. Mulkey, 413 P.2d 825 (1964) affirmed 387 
U.S. 369 (1967), the Supreme Court of California consid­
ered discrimination practiced by defendant who refused to 
rent unoccupied apartments to plaintiffs solely on the 
ground that they were Negroes. United States Supreme 
Court held that the article of the California constitution 
prohibiting the state from denying rights of any person to 
decline to sell, lease or rent his real property to such per­
son as based on his absolute discretion, constituted affirm­
ative action on the part of the state to change its existing 
law from a situation where discrimination was legally re­
stricted, to one in which it was not. Such discrimination 
denied plaintiffs and those similarly situated equal protec­
tion of laws as guaranteed by the Fourteenth Amendment 
to the Federal Constitution. The article was held uncon­
stitutional.

The article referred to was Proposition Fourteen [For­
merly ART. I § 26] which was incorporated into the Cali­
fornia Constitution provided as follows:

“ Neither the State nor any subdivision or agency 
thereof shall deny, limit or abridge, directly or indi­
rectly, the right of any person, who is willing or de­
sires to sell, lease or rent any part or all of his real 
property, to decline to sell, lease or rent such proper­
ty to such person or persons as he, in his absolute 
discretion chooses.”

It was not until 1959 that the State Legislature took the 
first steps toward eliminating racial discrimination in 
housing. The Unruh Civil Rights Act (Civ. Code, §§ 51-52)



prohibited discrimination on grounds of “ race, color, re­
ligion, ancestry, or natural origin” by “ business estab­
lishments of every kind”. During the same session the 
Legislature passed the Hawkins Act (formerly Health & 
Safety Code, §§35700-35741) that prohibited racial dis­
crimination in public assisted housing accommodations.

In 1961, Civ. Code, § 53 and Civ Code, § 782 vTere passed 
to discourage segregated housing by enacting proscrip­
tions aginst discriminatory restrictive covenants effecting 
real property interests and racially restrictive conditions 
in deeds of real property, respectively.

Finally in 1963 the State Legislature superseded the 
Hawkins Act by passing the Rumford Fair Housing Act 
(Health & Safety Code, §§35700-35744).

The spirit of the recent affirmative legislation (supra) 
to eliminate racial segregation in California was curtailed 
with the enactment of Proposition Fourteen. In short, 
Proposition Fourteen generally nullified both the Rumford 
and Unruh Acts as they applied to the housing market and 
was a form of de jure discrimination.

The existence of discrimination in the State of Califor­
nia has also been found to exist in studies and reports 
conducted by various commissions. For example, in The 
Fifty States Report, submitted to the Commission on Civil 
Rights by the State Advisory Committees, 1961, pp. 43-44, 
the California State Advisory Committee found that

“ [t]he State of California has a large and increasing 
Negro population. These people live mainly in segre­
gated pattern, in the major urban center of the state. 
In most cases, Negro housing areas are considerably 
less attractive than housing in other areas. . . . There 
still exists the deep fear that property value will ex­
perience a severe drop when \Tegro families enter a 
previously all-white neighbo uood. In addition, this 
fear seems to be shared by businessmen in the real 
estate industry who reflect in business attitudes and



15

practices this premise of falling values when integra­
tion occurs.” Id. at 44.

The Committee found that the reasons for segregation 
are twofold: (1) The real estate industry in California 
whose leaders still continue to support and advance the 
concept of segregation in their business and (2) that the 
concentration of Negro families into certain specified 
areas within California cities which is augmented, rather 
than alleviated, by urban renewal projects. Ibid.

It is the unanimous view of the Committee that in Cali­
fornia, minority housing is largely a Negro problem. 
However, Oriental-American and Mexican-Ameriean also 
populate ethnic areas within California cities; moreover, 
there is a far greater degree of housing mobility for 
Oriental and Mexican-Americans in California than exists 
for Negroes. Id  at 48.

This committee finally found that the Negro housing 
problem is widespread. Negroes encounter discrimination 
not only where houses in subdivision and in white neigh­
borhoods are concerned, but also in regard to trailer 
parks and motels. Ibid.

All of the authorities assess racial segregation and dis­
crimination in land use as a direct and summary factor 
in producing segregation and racial isolation in education. 
See Jackson v. Pasadena City School District, 382 P.2d 
878, 31 Cal. Rptr. 606 (1963).

D. Education

All of the authorities assess racial segregation and dis­
crimination in land use as a direct and summary factor in 
producing segregation and racial isolation in education. 
Ibid.

In Jackson, supra, the State Supreme Court found that 
school zones were racially segregated on a fixed neighbor­



hood basis and thereby ordered the School Board to allow 
the plaintiff to transfer to another school. The court held 
that:

“ So long as large numbers of Negroes live in segre­
gated areas, school authorities will he confronted with 
difficult problems in providing Negro children with 
the kind of education they are entitled to have.”

That court further noted that:
“ The right to an equal opportunity for education and 
the harmful consequences of segregation require that 
school hoards take steps, insofar as reasonably feasi­
ble, to alleviate racial imbalance in schools regardless 
of its cause.” Id at 609-610.

School authorities were directed to consider the degree 
of racial imbalance and “ define the extent to which it 
affects the opportunity for education”.

Careful reading of this case provides the impetus for 
school authorities to accept the responsibility for affirma­
tively eradicating prolonged segregation in schools re­
gardless of its cause.

Having viewed Jackson, supra, it is necessary to reflect 
and determine whether prior to 1963, Blacks and other 
racial minorities living in the state of California had ex­
perienced prior racial prejudice that would justify pres­
ent affirmative action as a remedy to segregated educa­
tional systems.

Supporting the proposition of preserving racially sepa­
rate schools was Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 
405 (1874). Here the state Supreme Court refused to com­
pel the admission of a black child to a school established 
for white children because there was provided by statute 
a school for colored children. The pertinent part of that 
statute entitled, School Law of California, April 4, 1870 
(Laws 1869-70, p. 838), provided:



17

“ Section 53. Every school, unless otherwise provided 
by special law, shall be open for the admission of all 
white children between five and twenty-one years of 
age residing in that school district, and the Board of 
Education shall have power to admit adults and chil­
dren not residing in the district, whenever good rea­
sons exist for such exceptions.

Section 56. The education of children of African 
descent, and Indian children, shall be provided for in 
separate schools. Upon the written application of at 
least ten such children to any Board of Trustees, or 
Board of Education, a separate school shall be estab­
lished for the education of such children; and the 
education of a less number may be provided for by 
the Trustees, in separate schools, or in any other 
manner. ’ ’

The foregoing statute evidences a history of de jure 
school segregation in California.

Racial school segregation had a further legislative basis 
in California, as affecting other minorities. These laws 
were not declared unconstitutional until as late as the 
1940’s. Mendez v. Westminister School District of Orange 
County, 64 F. Supp. 554 (1946), affirmed 161 F.2d 724; 
see also, A Generation Deprived: Los Angeles School De­
segregation, A Report of the United States Commission 
On Civil Rights, May 1977.

In another case decided at the federal level, Wong Him 
v. Callahan, 119 F. 381 (1902), the constitutionality of 
separate schools was affirmed. Involved was Political Code 
of the State of California § 1662, which provided school 
authorities the power to establish separate schools for 
children of Chinese descent. The statute further provided 
“ when such separate schools are established, Chinese or 
Mongolian children must not be admitted into any other 
schools”. The court here held that where Chinese schools 
are offered the same advantages as other schools, the



operation of the law is not violative of the Fourteenth 
Amendment.

Racial segregation and discrimination in public school 
education in California is largely uncorrected today. See, 
A Generation Deprived: Los Angeles School Desegrega­
tion, A Report of the United States Commission on Civil 
Rights, May 1977 and Fulfilling the Letter and Spirit of 
the Law: Desegregation of the Nation’s Public Schools, A 
Report of the United States Commission on Civil Rights, 
August 1976.

In Lau v. Nichols, 414 TJ.S. 563 (1974), the court held 
that the failure of the San Francisco school system to 
provide English language instruction to approximately 
1,800 students of Chinese ancestry, who do not speak 
English, or to provide them with other adequate instruc­
tional procedures, denies them a meaningful opportunity 
to participate in the public educational program, and thus 
violated § 601 of the Civil Rights Act of 1964, which bans 
discrimination based “ on the ground of race, color, or 
national origin”, in any program or activity receiving 
Federal Financial Assistance, and implementing the reg­
ulations of the Department of Health, Education and 
Welfare.

The San Francisco, California, school system began to 
integrate in 1971 as a result of a federal court decree, 
[339 F.Supp. 1315 (1971)], Lee v. Johnson, 404 TJ.S. 1215 
(1971), but a report adopted by the Human Rights Com­
mission of San Francisco, and submitted to the court by 
respondents after oral argument, shows that, as of April, 
1973, there still existed patterns of discrimination.

In Serrano v. Priest, 96 Cal. Rptr. 601 (1971), the Su­
preme Court of Los Angeles County, held that public 
school financing systems which rely heavily on local 
property taxes and cause substantial disparities among 
individual school districts in the amount of revenue avail-



19

able per pupil for the district’s educational grants, visit 
invidously discriminate against the poor and violate the 
equal protection clause of the Fourteenth Amendment.

The judgment was reversed and the case remanded. The 
right to an education in public schools is a fundamental 
interest which cannot be conditioned on wealth. But see, 
San Antonio Independent School District v. Rodriguez, 411 
TT.S. 1 (1973).

In Lee v. Johnson, supra, the District Court found that 
a desegregation plan offered by the School Board was 
within the established legal bounds. But this Court stated:

“ Historically, California statutorily provided for the 
establishment of separate schools for children of Chi­
nese ancestry. That was the classic case of de jure seg­
regation involved in Broum v. Board of Education, 347 
TT.S. 483, relief ordered, 349 IT.S. 294. Schools once seg­
regated by state action must be desegregated by state 
action, at least until the force of the earlier segregation 
policy has been dissipated. ‘The objective today remains 
to eliminate from the public schools all vestiges of state- 
imposed segregation.’ Swann v. Charlotte-Mecklenburg 
Board of Education, 402 TT.S. 115.’’

Applicants request for stay of District Court’s order 
wTas denied on reassigning pupils of Chinese ancestry to 
other San Francisco public schools. By refusing to stay, the 
court, allowed the school board’s plan to desegregate.

The 1967 report of the United States Commission On 
Civil Bights, Racial Isolation in the Public Schools,2 found 
that the impact of segregation in educational institutions 
is reflected in the difference in educational achievement 
scores accomplished in segregated and integrated schools.

The report further notes that blacks are greatly af­
fected by racial isolation in their respective school svs-

2 See Appendix B.



terns. It creates a lasting stigma, which influences future 
isolation throughout their lives.

The Commission offered the following explanation:
“ The environment of schools with a substantial ma­
jority of Negro students offers serious obstacles to 
learning. The schools are stigmatized as inferior in 
the community. The academic performance of their 
classmates is usually characterized by continuing dif- 
culty. The children often have doubts about their 
chances of succeeding in a predominately white so­
ciety and they typically are in school with other stu­
dents who have similar doubts .. .” Id. at 106.

The Commission went on to note that “ racial isolation 
fosters attitudes and behavior that perpetuate isolation in 
other important areas of American life”.

The 1963 Report of the United States Commission on 
Civil Rights, State Policies Against Racial Imbalance, noted 
the fact that California, in 1962, took a similar position like 
that of most states toward affirmative action and decentral­
ization of its segregated school systems.

The California State Board of Education adopted a pol­
icy that segregation in the schools “ even where physical 
facilities and other tangible factors are equal, inevitably 
results in lawful discrimination”.

The 1963 report further noted that:
“ We fully realize that there are many social and eco­
nomic forces at play which tend to facilitate de facto 
racial segregation, over which no control, but in all 
areas under our control or subject to our influence, the 
policy of elimination of existing segregation and curb­
ing any tendency toward its growth must be given 
serious and thoughtful consideration by all persons 
involved at all levels.
Wherever and whenever feasible, preference shall be 
given to those programs which will tend toward con­
formity with the view herein expressed.” Id. at 60.



21

The Board amended its original policy statement in 1962 
by adopting an amendment which provided that it would 
refrain from establishing specific school areas for its stu­
dents to attend, because this process facilitated segregated 
schools.

In Crawford v. Board of Education of the City of Los 
Angeles, 551 P. 2d 28, 35, 130 Cal. Eptr. 724 (1976) the 
California Supreme Court emphatically clarified two fun­
damental principles in the school desegregation process: 
(1) the state law authorizes the local California school 
boards to accept the ‘‘affirmative duty” to alleviate school 
segregation, whether de facto or de jure; and (2) the prop­
er role of the Court in a court-ordered desegregation proc­
ess is to ensure that the school board “ initiates and im­
plements ’ ’ reasonable measures to effectuate progress in 
alleviating segregation and its offensive consequences. The 
Court also made reference to its holding in San Francisco 
Unified School District v. Johnson, 3 Cal. 3d. 937, 479 
P.2d 669 (1971) in noting the serious harm inflicted on 
minority children by segregated school systems and 
stated: “ [I]t is the presence of racial isolation, not its legal 
underpinnings, that creates unequal education”.

A Report of the United States Commission on Civil 
Rights entitled “A Generation Deprived: Los Angeles 
School Desegregation”, (May, 1977), p. 216 concluded that 
today the mandate of Crawford, supra, to remedy school de­
segregation and its harmful effects has not been achieved. 
That Report examined the desegregation plan submitted 
to Judge Egly of the Superior Court of the County of 
Los Angeles on March 18, 1977, and found the plan “con­
stitutionally deficient under California constitutional 
standards. The plan neither eliminates nor begins to 
eliminate segregated schools or the harm which has re­
sulted from the segregated school system.” (Emphasis 
in original)



22

In reflecting on the past history of segregated schools 
in Los Angeles, the Report further states:

“ Where, as in this case, a school board has built a 
record of dilatory conduct, resistance to its constitu­
tional duty, and apparent bad faith, that board has 
the additional burden of demonstrating its commit­
ment to fulfill both the letter and spirit of the law.
The school board plan presented to the court in March 
1977 gives no indication of any such commitment.” Id. 
at 217.

In 1976, the Commission on Civil Rights examined the 
desegregation effort of Berkeley, California in its report, 
“Fulfilling the Letter and Spirit of the Law” (August,
1976) pp. 50-54. The Report cites the city of Berkeley as 0  
one of the first Northern school districts to desegregate 
voluntarily and commended the total community effort in 
the successful implementation of the 1964 and 1968 de­
segregation plans. Berkeley is currently implementing its 
1972 plan for desegregation. The fact that the city of 
Berkeley has had three desegregation plans within an 
eight-year period, evidences the existence of segregated 
schools in the past and the continued lingering effects.

The 1976 Report, in addition, makes reference to the 
existence of segregated schools in Santa Barbara, Califor­
nia. The result of such and by state recommendations, 
the Santa Barbara School District developed and began 
to implement a three phase desegregation plan in 1972.
As of the date of the Report, only two schools had been 
involved in the desegregation process and only the first §  
phase of the plan had been implemented.

The focal issue presented here is whether the State of 
California with a system of education from the public 
elementary schools through postsecondary education, 
after finding past racial segregation and discrimination in 
the total system, may institute affirmative action pro­
grams, including the one in issue at the Davis Medical 
School, to remedy the past effects of both de jure and



23

de facto racial segregation and discrimination by pro­
moting and developing equal access of racial minorities to 
the benefits and rewards of the California educational 
system. Hefferlin and others have stated:

“ Commentators about America have noted that the 
genius of our society and of our educational system 
can be summarized in one word: emancipation— 
emancipation from ignorance, emancipation from 
limitations, emancipation from the chance restrictions 
of environment and fortune. In many ways, Califor­
nia as a state has exemplified this goal. Its develop­
ment of its system of University, State University and 
College, community college, and adult school resources 
has been the envy of the nation if not the world. It 
ranks among the leading states in educating its youth 
and young people.”

Hefferlin, Peterson and Roelfs, Prepared for the Cali­
fornia Legislature, September 1975, Postsecondary Alter­
natives Meeting, California’s Educational Needs A Feasi­
bility Study, First Technical Report Part One, California’s 
Need For Postsecondary Alternatives.

The University of California, Davis, Medical School, is 
a part of the state supported system of education in Cal­
ifornia. The state of California through its legislature and 
courts, found the California system of public education to 
be racially and other-wise discriminatory. The state directed 
its constituents to evolve plans and to work toward the 
elimination of racial exclusion in the educational system by 
providing for greater access to state afforded and supported 
educational opportunities.

Though the record and arguments by the parties in this 
case do not refer to certain public documents and reports 
by the state of California and the United States Civil 
Rights Commission, the California State Courts could 
have taken judicial notice of these several reports, (West 
Annotated California Codes, Evidence Code, § 451; Allen



24

v. Superior Court In and For San Diego County, 340 P.2d 
1030, 171 C.A.2d 444 (1959) ; Thomas Kongsgaard, Judicial 
Notice and the California Evidence Code (1966), and like­
wise this Court may take judicial notice of these reports. 
Boynton v. Virginia, 364 U.S. 454, 467, n.5 (1960); Brown v. 
Board of Education, 347 U.S. 483, 494 n .ll (1954); 349 U.S. 
294 (1955).

Ironically, John Vascancellos, Chairman, Assembly Ed­
ucation Subcommittee On Postsecondary Education, Cali­
fornia Legislature, The Bakke Decision, Disadvantaged 
Graduate Students, Transcript and Statements, Sacra­
mento, California, March 2, 1977, pp. 94-95 has observed:

“ For example, ACR 150 and 151 were passed by 
us three years ago. They urged you to adopt flexible 
admissions and then they indicated a state policy for 
the Legislature about not enough minorities in the 
schools, and asked you to address that affirmatively. 
I  could tell you that your counsel didn’t use that as 
evidence in the case, to convince the court that there 
was a compelling interest of the State Legislature. 
To me, that is unconscionable, not to help use that for 
your own case, and there are a dozen more that I have 
written down here that leaves me utterly unconvinced 
that the people who have handled the case so far rec­
ognized the subtleties of the case, or have their hearts 
in the right place.”

Equal Educational Opportunity In California Post­
secondary Education: Part I, A Report Prepared by the 
California Post-secondary Education Commission, Com­
mission Report 76-6, April 1976, pp. 1-3 states:

“ I. B ackground and Summary

Equal educational opportunity for all California citi­
zens has been a goal of our public institutions since 
at least 1965. In the past ten years, considerable prog­
ress has been made toward this goal, as minority en­
rollments have approximately doubled as a percentage 
of the total student body.



25

During the same period, the financial commitment to 
achieving equality of educational opportunity also has 
increased. The Board of Regents, for example, has 
contributed $40 million from its own resources for 
the University of California’s Educational Opportu­
nity Program. The California State University and 
Colleges will expend over $6 million in State Funds 
in the current year for its Educational Opportunity 
Program. The California Community Colleges have 
an Extended Opportunity Programs and Services 
program (EOPS) of equivalent size. Despite these 
significant efforts, however, equal educational oppor­
tunity remains a goal and not a reality in California 
post-secondary education.
Recognizing the need for increased efforts by public 
institutions to overcome the underrepresentation of 
women, ethnic minorities, and low-income persons in 
their student bodies, the Legislature adopted Assem­
bly Concurrent Resolution 151 (1974). This resolution 
requested the Regents of the University of California, 
the Trustees of the California State University and 
Colleges, and the Governors of the California Com­
munity Colleges:

To prepare a plan that will provide for address­
ing and overcoming, by 1980, ethnic, economic, 
and sexual underrepresentation in the make-up of 
the student bodies of institutions of public higher 
education as compared to the general ethnic, eco­
nomic, and sexual composition of recent Califor­
nia high school graduates.

These plans were to be submitted to the California 
Postsecondary Education Commission by July 1, 1975, 
and the Commission in turn was to ‘integrate and 
transmit the plans to the Legislature with its com­
ments ’.
In addition, ACR 151 requested the three public seg­
ments to report annually to the Commission on their 
progress toward the 1980 goal, with specific discus­
sion of obstacles to the implementation of a statewide 
plan. These reports are to be integrated and trans­
mitted to the Legislature by the Commission, together 
with its evaluations and recommendations.



The Legislature also identified four methods for re­
sponding to the problem of underrepresentation:

(a) affirmative efforts to search out and contact 
qualified students;
(b) experimentation to discover alternative means 
of evaluating student potential;
(c) augmented student financial assistance pro­
grams; and
(d) improve counseling for disadvantaged stu­
dents.

An analysis of the segmental reports submitted to the 
Commission m response to ACR 151 leads to the fol­
lowing conclusions:

The reports are not adequate in meeting the Leg­
islative request that the segment develop a co­
herent plan to address and overcome the problem 
of underrepresentation. While the reports vary 
considerably in the degree of specific and com- 
prehensive analysis presented, none reveals a 
thoroughly developed, detailed plan for student 
affirmative action.
Compared to the composition of recent California 
high school graduates, Black and Spanish-sur- 
named students are under-represented in public 
postsecondary education. Moreover, during the 
past two years, the degree of underrepresentation 
apparently has increased rather than decreased 
While women are also under-represented, this oc­
curs more frequently in the graduate programs.
While increased financial assistance through the 
several student aid programs is probably needed 
greater emphasis must be placed on (1) recruit­
ment programs to increase the eligibility pool of 
the underrepresented groups, and (2) on student 
support services to promote successful educa­
tional experiences for those who gain access to 
public postsecondary education.
Efforts by the segments to achieve the goal of 
equal educational opportunity would be enhanced



27

by a clearer long-range commitment on the part 
of the Legislature and the Governor to support 
a coherent financial program requisite for an ef­
fective student affirmative action plan. While ACE 
151 states ‘it is the intent of the Legislature to 
commit the resources to implement this policy.’ 
State government as a whole has done demon­
strated this intent.”

Given these conclusions, it is clear that the institutions 
of public postsecondary education are only in the begin­
ning stage of developing a student affirmative action pro­
gram. Accordingly, this Eeport should be considered the 
first of two dealing with equal educational opportunity in 
post secondary education. This First Eeport describes the 
current situation in the student affirmative action pro­
grams of the public segments and presents initial recom­
mendations and guidelines for the development of a com­
prehensive statewide plan for student affirmative action. 
The Second Eeport, to be developed through cooperative 
efforts by the Commission and the three public segments, 
will present this statewide plan and will include a de­
tailed discussion of the activities and costs of current and 
proposed programs. The Commission will play a leadership 
role in developing a statewide plan coordinating segmental 
activities. The Second Eeport was submitted to the Legis­
lature in January 1977.

The significance of the college degree is strongly felt and 
adamantly expressed by most Californians; so much so, that 
its attainment is believed to provide an upward social and 
economic mobility resulting in personal growth and cogni­
tive development. This persuasion is now being challenged 
due to the changing of time, the development of numerous 
critiques of higher education, and the growing number of 
unemployed college graduates. Notwithstanding this some­
what recent attack, college attendance yields very real, per­
sonal and social benefits for many, particularly minorities



28

and poor persons. However, college is not an option open 
for many high school graduates. In other words, it is need­
less to say that access to college, for many persons, remains 
unequal. “ Nationally, if your family’s annual income is 
$15,000 you are four times more likely to attend college 
than if your family’s income is $3,000. If you are very 
poor and black, your chances of entering college are one- 
seventh that of students from high income white families. 
Underrepresentation of ethnic minorities continues, par­
ticularly at four-colleges and universities.” Unequal Ac­
cess to College, Post Secondary Opportunities and Choices 
of High School Graduates, Staff Report, Assembly Per­
manent Subcommittee on Post Secondary Education, Cali­
fornia Legislature 1, 1975.

The Legislature, in adopting Assembly Concurrent 
Resolution 151 (1974), took cognizance of the fact that addi­
tional efforts by colleges and universities would be neces­
sary to overcome the large degree of underrepresentation of 
ethnic minorities and poor, alike.

In effect, ACR 151 sets forth the requirement that the 
three public segments of higher education, i.e., the com­
munity colleges, the State University and Colleges, and 
the University of California, must develop certain stra­
tegy in order to alleviate the present situation of under­
representation of minority students and students from 
low income families by 1980.

In analyzing the data considered, the findings are as 
follows:

“ Substantial inequality of post-high school opportuni­
ties exists between graduates of high schools serving 
low income areas and graduates of high schools serv­
ing high income areas. The rates of eligibility to enter 
the University of California and the State University 
and Colleges are three times greater for graduates 
of high income schools than for graduates of low in­
come schools (Table_9 and 12). IIC and CSUC eligi­
bility rates for Spanish surname and black graduates



29

are one-third the eligibility rates for whites (Tables 10 
and 13). (This finding is compounded by dropout rates 
in sampled low income high schools averaging 39 per­
cent, compared to 13 percent in high income schools— 
Table 7.)
Actual post-high school choices of graduates reveal 
similar inequalities. Graduates of high schools in 
high income areas are four times as likely to enter 
the University of California and twice as likely to 
attend the State University and Colleges as are low 
income graduates (Table 15). Rates of entrance to 
community colleges and independent colleges and uni­
versities are very similar, regardless of differences in 
family incomes: Only two and four percent of all 
Spanish surname and black graduates, respectively, 
entered UC, compared to an entrance rate of 14 per­
cent for white graduates (Table 16).
Specific inequities emerge after combining informa­
tion about opportunities and choices: Significantly 
greater numbers of UC' and CSUC—eligible low in­
come graduates are not entering college, than eligible 
high income graduates. And many high achieving low 
income graduates are ineligible to attend UC and/or 
CSUC due only to minor course or scholarship defi- 
ciences. The substantial number of TJC and/or CSUC 
eligible, low income graduates entering community 
colleges provides a potentially larger number of stu­
dents eligible to later transfer to UC and/or CSUC 
(Tables 17 through 20).
Given unmet financial need remains substantial, in­
creasing only student aid appropriations will not 
significantly increase the numbers of low income and 
minority college students. Governmental and institu­
tional strategies for overcoming access inequalities 
must also focus on:

—improving instructional programs in low income 
high schools to increase achievement levels;

—improving information available to high school 
students about postsecondary opportunities and 
student aid;

—increasing flexibility of admission requirements;



30

—expan [ding] student support services (e.g., tutor­
ing and counseling) for low income and minority 
students who enter college.. . .

Four times as many graduates of high income 
schools actually enter the University of California as 
graduates from low income schools. Seventeen per­
cent of high income graduates choose to enter the 
State University and Colleges, compared to only eight 
percent of graduates from low income schools. While 
just under one-half of graduates from high income 
schools enter a four-year college, only 21 percent of 
low income graduates do so. There seems to he sur­
prising equality of opportunity for graduates choos­
ing to enter a private college or university: Private 
college entrance rates for graduates from high, mid­
dle, and low income schools are roughly equal at ten, 
seven, and eight percent. Entrance rates to com­
munity colleges are also approximately equal for 
graduates of all three income groups.” Id. at 2, 3,17.

Due to the great disparity found in tuition levels, rang­
ing from cost-free community colleges to expensive pri­
vate universities, the aforementioned findings are appar­
ently indicative of the benefits received as a result of 
student financial aid programs, in which the purpose of 
such programs acts as an equalizing force for access to 
high tuition instutions. Financial assistance, singularly, 
will not serve to overcome the gross underrepresentation 
of low income and minority high school graduates, how­
ever, and this is illustrated by the low entrance rates for 
low income students to UC and CSUC.

Low income graduates embark upon the work-a-day 
world at twice the rate of graduates of high income 
schools, i.e., one year after graduation. There are far 
more low income unemployed than there are high income 
graduate counterparts (4 percent).

In addition, 2 percent of Spanish surname and 4 per­
cent of black graduates enter the University of California,



31

while at the same time, 14 percent of white graduates en­
tered.

Opportunities for higher education continue to be in­
equitably distributed between high school graduates of 
high and low income backgrounds, the result being that 
the poor, who are most often ethnic minorities, are se­
verely deprived.

The under participation of minorities in the California 
State Educational system was evident as of 1975:

“ On the basis of race, roughly 85 percent of both 
full-time and part-time learners in California are 
white, compared to only about 75 percent of the 
state’s adult population. In other words, ethnic mi­
norities are underrepresented among learners.

Because Blacks, Mexican-Americans, and Native 
Americans have been inadequately served in the past 
by traditional schools and colleges, they might be ex­
pected to be overrepresented among participants in 
adult education. But this is not the case. As Table 
2 shows, the proportion of minorities engaged in 
adult education in California is no higher than that of 
whites. Nationally, their proportion is even lower 
than that of whites.

Past experiences with formal schooling clearly dis­
courage many minority group members from partici­
pating in postsecondary education. In the the national 
CN8 survey, twice as many blacks as whites men­
tioned such barriers as “ low grades in the past,” 
“ not confident of my ability”, and “ don’t meet re­
quirements to begin programs” as obstacles to further 
education (Carp et al, 1974). In California, barriers 
for Mexican-Americans are probably even greater 
than for Blacks because of language problems. Post­
secondary Alternatives: Meeting California Educa­
tional Needs For Postsecondary Alternatives, Pre­
pared for the California Legislature, September, 
1975.”

A Report of the United States Commission on Civil 
Rights, The Federal Civil Rights Enforcement Effort— 1974,



32

Volume III, To Ensure Equal Education Opportunity, Jan­
uary 1975, reflects that schools and colleges are deficient in 
their access to racial minorities in educational advantages 
provided by the state of California (p. 284).

When, as here, the State of California is promoting the 
intendment of the Thirteenth and Fourteenth Amend­
ments, the Civil Rights Act of 1964, Title VI, 42 U.S.C.
2000d and other federal remedial legislation, its action is 
not only permissible but should be encouraged by this 
Court.

What this Court held as to New York’s implementing 
the Voting Rights Act in United Jewish Organization v.
Carey, — IT.S. —, 97 S.Ct. 996, (1977) at 1005 is apropos 
to the instant case:

“ Section 5, and its authorization for racial redis­
tricting where appropriate to avoid abridging the 
right to vote on account of race or color, are consti­
tutional. Contrary to petitioner’s first argument, 
neither the Fourteenth nor the Fifteenth Amendment 
mandates any per se rule against using racial factors 
in districting and apportionment. Nor is petitioner’s 
second argument valid. The permissible use of racial 
criteria is not confined to eliminating the effects of 
past discriminatory districting or apportionment.”

Hence, it is clear that California has had a significant 
amount of racial discrimination and is not free of igno­
miny as the majority below infers. For while the court 
states “ [t]here is no evidence in the record to indicate -
that the University has discriminated against minorities WJ
in the past” (Bahlce, 553 P.2d 1152, 1169) to justify its 
findings, this statement, when read against the backdrop 
of the badges of slavery in California in education, hous­
ing, voting and the like creates a situation against which 
the court cannot presume the nonexistence of glaring fact.
Id. at 1169. This is especially true since the very people 
against whom an adverse opinion would irreparably in­
jure, and who have a great interest in the outcome of this



33

significant case, were not before the court. Id. at 1169, 
n. 29.

What this Court held as to the exercise of power by 
Congress under the Fifteenth Amendment in South Caro­
lina v. Katsenbach 383 U.S. 301, 328 (1966) ought to be ap­
plicable to the state of California in promoting the pur­
poses of the Fourteenth Amendment:

“ After enduring nearly a century of systematic re­
sistance to the Fifteenth Amendment, Congress might 
well decide to shift the advantage of time and inertia 
from the perpetrators of the evil to its victims.”

II. THE USE OF RACIAL CLASSIFICATION TO PROMOTE IN­
TEGRATION OR TO OVERCOME THE EFFECTS OF PAST 
DISCRIMINATION IS NEITHER "SUSPECT" NOR PRESUMP­
TIVELY UNCONSTITUTIONAL.

In the late sixties, the medical school at Davis, like many 
other medical and professional schools in this nation real­
ized that in order for their institutions to reflect a more 
heterogeneous enrollment, their traditional admissions cri­
teria had to be changed. (See Appendix C). These schools 
found themselves in a segregated state even though many 
did not intentionally practice overt discrimination. Davis 
Medical School was among those schools which acted to al­
leviate a low minority enrollment. In fact, the University of 
California at Los Angeles did not graduate its first black 
medical student until 1970, or 51 years after being founded. 
Furthermore, the University of California at Los Angeles 
did not graduate its first black dentist until 1974, or 5o years 
after the founding of the Dental School. Blackwell, “ Access 
of Black Students to Graduate and Professional Schools” 5 
[Southern Educational Foundation (1975)]. Davis estab­
lished a special admissions program to ameliorate its almost 
segregated medical school enrollment.

In the past ten years, both graduate and undergraduate 
schools have initiated so-called affirmative action programs



34

in an effort to facilitate the increase of minorities in gradu­
ate and undergraduate institutions of higher learning. How­
ever, the need for affirmative action programs has become 
compelling in other work and professional areas of the so­
ciety where minorities were nonexistent or in areas where 
their presence was so low as to border on the extinct.

Amici seeks reversal of the California State Supreme 
Court decision in Bakke because it is constitutionally erro­
neous. First, the California Supreme Court erroneously 
concluded that racial classification to promote integration is 
presumptively unconstitutional and “ suspect.” This con­
clusion is not the law as Amici understand it. In fact, as 
Judge Tobriner observed in his dissenting opinion below:

“ The governing authorities . . . lend no support to 
the conclusion that the use of racial classifications to 
ameliorate segregated conditions is presumptively un­
constitutional . . . .  By failing to distinguish between 
invidious racial classifications and remedial or ‘benign’ 
racial classifications, the [State court] majority utilize 
the wrong constitutional standard in evaluating the 
validity of the Davis special admissions program.” 
Bakke v. Regents of University of California, 553 P.2d 
1152, 1173 (1976). (Tobriner, dissenting).

The Bakke case removes scabs from old wounds brought 
on by invidious discrimination. For the arguments raised 
by Bakke ignore what the court must not ignore: that the 
history of this country is replete with judicial negation of 
the legal existence of black people. Hence, as Bakke argues 
that race, as an element of affirmative action programs, is 
unconstitutional—Amici, arguing the reverse, does not hes- 
tate to remind the court of the dark past, and the accouter­
ments of slavery which remain today.

A. Accouterments of Slavery

The Civil'Rights Cases 109 H.S. 3 (1883) had presented 
the question of the extent to which the power of the federal 
government could be used in the protection of citizenship



35

rights created by Constitutional amendments and statutes. 
The decision in the consolidated cases established the prin­
ciple, foreshadowed by the Slaughter House Cases, 16 Wall, 
36 (1873) and U.S. v. Cruikshank, 92 U.S. 542 (1876) that 
Congress had no authority under the Fourteenth Amend­
ment either to initiate legislation which impinges upon the 
States’ police power or to establish laws which control the 
acts of private persons in the States. The ground was laid 
for another major test of the federal government’s dispo­
sition to defend black Americans against assaults upon their 
rights qua citizens equal in the eyes of the law.

Plessy v. Ferguson, 163 U.S. 537 (1896) provided the issue 
on which the Supreme Court would again decide which priv­
ileges and immunities of black citizens it would construe 
within the realm of federal power. Homer Plessy, an Afro- 
American by race, was convicted in the local criminal court 
of New Orleans, Louisiana for violation of a state statute. 
The statute of import, enacted in 1890, provided that blacks 
and whites should not travel in the same compartments on 
passenger trains of Louisiana. The question of the consti­
tutionality of the statute came before the Supreme Court 
by certiorari. The majority held that it was a valid exercise 
of police power for the State of Louisiana to separate train 
passengers by race while in the state and not a violation of 
the Thirteenth or Fourteenth Amendment having to do with 
the abolition of involuntary servitude and equal protection 
of the laws. Thus, “ separate but equal” became constitu­
tionally acceptable. Regarding the Fourteenth Amendment, 
the majority opinion included the following viewpoint:

“ The object of the amendment was undoubtedly to 
enforce the absolute equality of the two races before 
the law, but in the nature of things it could not have 
been intended to abolish the distinctions based upon 
color, or to enforce social, as distinguished from politi­
cal equality, or a commingling of the two races upon 
terms unsatisfactory to either.” Id. at 544.



36

The Court, further, wrote of the impotence of law in the 
face of “ natural” racial antipathy: “ Legislation is power­
less to eradicate racial instincts, or abolish distinctions 
based on physical differences. If the civil and political rights 
of both races be equal, one cannot be inferior to the other 
civilly [sic] or politically. If one race be inferior to the 
other socially, the Constitution of the United States cannot 
put them on the same plane. ’ ’ Id. at 551.

One Justice had a different perspective on the segregation 
statute and its purpose believing that “ [t]he arbitrary sep­
aration of citizens, on the basis of race, while they are on a 
public highway, is a badge of servitude wholly inconsistent 
with the civil freedom and the equality before the law es­
tablished by the Constitution. It cannot be justified upon 
legal grounds.” Justice John Harlan pointedly discussed 
what he saw to be the socio-political and normative consid­
erations at issue.

“ Every one knows that the statute in question had 
its origin and purpose . . .  to exclude colored people 
from coaches occupied or assigned to white persons .. .

The white race deems itself to be the dominant race 
in this country. And so it is, in prestige, . . . education, 
. .. wealth,. . .  and . . .  power. So I doubt not, it will con­
tinue to be for all time, if it remains true to its great 
heritage. . . . But in the view of the constitution, in the 
eye of the law there is in this country no superior, dom­
inant, ruling class of citizens. There is no caste here. 
Our constitution is color-blind and neither knows nor 
tolerates classes among citizens. In respect of civil 
rights all citizens are equal before the law.” Id. at 557.

This decision had enormous impact. Barely had the Court 
settled this principle for public carriers when it was ex­
tended to public schools and, tragically, the “ equal” was 
lost. In Cumming v. Richmond County Board of Education, 
175 U.S. 528 (1899), the Court was presented with the 
following facts: The Ware High School of Richmond 
County, Georgia, a public school for blacks was suspended 
‘for economic reasons’. The high school for white children



37 .

in Richmond County continued to operate. Gumming’s, a 
black taxpayer, took the matter to court complaining that 
the action closing the black school was discrimination 
against Black Americans and a violation of the ‘ ‘ equal pro­
tection” and “ privileges and immunities” clauses of the 
Fourteenth Amendment. The record of the trial revealed 
no abuse of discretion permitted under the law to the Rich­
mond County Board of Education. Although, the constitu­
tionality of laws providing for separate accommodations 
for blacks and whites in public schools of the States was 
attacked in the argument of Cumming’s counsel, the ques­
tion was not presented. The blacks of Augusta, Georgia 
brought suit against the Board and asked for a judicial 
remedy for closing the white high schools since Plessy re­
quired “ equal facilities”. Upon writ of error the United 
States Supreme Court affirmed the decision of the lower 
state court (the Supreme Court of Georgia) upholding the 
school Board 's action. Ruling that the County Board did not 
have to maintain a high school for blacks or close the white 
high schools, Justice John Harlan, for the Court, stressed:

“ [W]hile all admit that the benefits and burdens of 
public taxation must be shared by the citizens without 
discrimination against any class on account of their 
race, the education of people in schools maintained 
by state taxation is a matter belonging to the respec­
tive states, and any interference on the part of Federal 
authority with the management of such schools cannot 
be justified except in the case of a clear and unmistak­
able disregard of rights secured by the supreme law of 
the land.” Id. at 545.

By the turn of the century “ separate but equal” in the 
eyes of the law which in fact was translated into ‘ ‘ separate 
but u n eq u a l”  became the rule for treatment of Black Ameri­
cans. This, in addition, to deprivation of rights in other 
questions before the court involving blacks, such as jury 
service, suffrage and due process led to the degeneration of 
the legal status of Black Americans. The decision against 
federal intervention to protect black rights except in ob-



38

vious instances of state violation of federal laws (narrowly 
construed) marked an abandonment of Black Americans and 
the legalization of inequality. This is evident in numerous 
aspects of the lives of Black Americans including voting, 
jury service, housing, employment, public accommodations, 
racial violence and education. As late as the mid-1930’s the 
status of Black Americans remained similar to that of indig­
enous blacks under the system of apartheid in the United 
States. Rayford W. Logan, Betrayal of the Negro (New 
York, 1965); C. Vann Woodward, The Strange Career of 
Jim Crow, (New York, 1966); Charles Mangum, The Legal 
Status of the Negro (Chapel Hill, 1940) ; Richard Bardolph,
The Civil Rights Record (New York, 1970); YVilliam H.
Hastie, “ Toward An Equalitarian Legal Order”, 407 An- 
nals of the American Academy of Political and Social Sci­
ence 18 (1973)

To examine the Afro-American experience during the first 
third of the Twentieth Century was to view, in the words 
of Mr. Justice Douglas, “ a spectacle of slavery unwilling 
to die.” Jones v. Mayer, 393 U.S. 409 (1968). Citizens, 
charged with the enforcement of law, and private persons 
engaged in activities were instruments which disfranchised 
the black voter. See e.g. Guinn v. U.S., 238 U.S. 347 (1915);
Nixon v. Herndon, 273 U.S. 536 (1927); Grovey v. Town­
send, 295 U.S. 45 (1935); Breedlove v. Suttles, 302 U.S.
277 (1937); Lane v. Wilson, 307 U.S. 268 (1939). Blacks,
solely on the basis of race, were deprived of the right to
serve on juries. See e.g., Smith v. Texas, 311 U.S. 128 (1940)
and Hill v. Texas, 316 U.S. 400 (1942). Blacks have been de- 0^-
prived of the right to own and convey property based upon
race, and either have been forced to live in segregated areas
or denied access to privately designated white areas. See
e.g., Buchanan v. Warley, 245 U.S. 60 (1917); Corrigan v.
Buckley, 271 U.S. 323 (1926), Harmon v. Tyler, 273 11.S. 608 
(1927); Shelley v. Kraemer, 334 U.S. 1 (1948). Black Ameri­
cans have been denied gainful employment, discriminated 
against in employment benefits and opportunities for



39

grounds having nothing to do with character or training 
but race alone. See e.g., Hodges v. U.8., 203 U.S. 1 
(1906), and Steele v. Louisville and Nashville Railroad 
Company, 323 U.S. 192 (1944). See also, Robert Weaver, 
Negro Labor (New York, 1946) and Sterling Spero and 
Abraham Harris, The Black Worker (Reprint edition, 
New York, 1968). Separation of the races in the use of 
public facilities was forced by law. The notion of inferiority 
attached to former slave status and race reenforced seg­
regation has tended to support unequal treatment in, for 
example, dining cars, restaurants, buses, public beaches 
and public parks. See e.g., McCabe v. Atchison, Topeka and 
Santa Fe Railroad, 235 U.S. 151 (1914); Lombard v. Loui­
siana, 373 U.S. 267 (1963); Gayle v. Browder, 352 U.S. 903 
(1956); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955); 
New Orleans Park Improvement Association v. Detiege, 358 
U.S. 54 (1955). Where it seemed to be within the power of 
the federal government under the Reconstruction Amend­
ments and Civil Rights statutes to intervene in states to 
protect the lives of black people, Presidents and Attorney 
Generals failed to act. Lacking this, Congress failed to pass 
legislation against mob violence, such as lynchings. See e.g., 
Mary F. Berry, Black Resistance/White Law (New York, 
1971), Arthur Raper, The Tragedy of Lynching (Chapel 
Hill, 1933) and Moore v. Dempsey, 261 U.S. 86 (1923). In the 
field of education, most relevant to this case, blacks were 
not provided with equal educational opportunities on any 
level and for many the education received was offered in 
separate, unequal facilities on unequal terms. Whether or 
not statutory segregation existed in a state as illustrated by 
Cumming, supra, discrimination on the basis of race con­
tinued to be the policy. Opporhmities to take advantage of 
public education decreased as black interest moved from 
secondary to college and graduate or professional education. 
See John Fleming, The Lengthening Shadoiv of Slavery 
(Washington, D.C., 1976), Loren Miller, The Petitioners 
(New York, 1956), Richard Kluger, Simple Justice (New 
York, 1977), Brown v. Board of Education, 347 U.S. 483,



40

(1954); Bolling v. Sharpe, 347 U.S. 497 (1954). See also, 
Horace Mann Bond, Education and the Negro in the Ameri­
can Social Order (reprint edition, 1956).

The struggle against segregated schools and unequal 
education opportunities illustrates graphically how funda­
mentally racism influenced policy in the first half of the 
Twentieth Century. The experience of Afro-Americans 
with public education was colored by not only Gumming 
which established the right of the state to regulate the 
public education provided its youth, but also Berea Col­
lege v. Kentucky, 211 U.S. 45 (1908) and Gong Lum v. 
Rice, 275 U.S. 78 (1927) in which the Court held that segre­
gation in the public schools was not violative of the prin­
ciple of “ equality before the law” ; that it was unlawful 
for a state chartered corporation to operate a private 
school with integrated classes and that state legislatures 
might settle issues relative to education at the public ex­
pense without federal court intervention.

During a protracted, organized struggle through the 
courts, NAACP lawyers led in the main by Charles Hous­
ton with the assistance of many dedicated black lawyers, 
cases were argued to establish precedents in support of 
equality and then desegregation. Houston, as the first, 
Special Counsel of the NAACP, reasoned that a pro­
tracted struggle was appropriate since not only a portion 
of the white masses had to be neutralized and persuaded 
of the logic and justice of the NAACP position for equal­
ity, but also the judges hearing arguments were part of 
the judicial process of the United States which operated 
with a keen awareness of and reverence for stare decisis 
and judicial parsimony. With the “ real aim . . .  to abol­
ish all segregated schools” Houston pursued a line of 
cases which he believed would lead to the “ elimination of 
segregation.” McNeil, “ Charles H. Houston,” 3 Black 
Law Journal 123 (1974). The course charted began on the 
state level in 1935. Donald Game Murray sought a legal 
education in the state of Maryland. In 1935 he took his



41

complaint of the state University’s refusal to admit him 
to court. By 1936 the Maryland Court of Appeals held 
that Murray should he admitted to the existing state law 
school in compliance with equality under the law guaran­
teed by the Constitution, Pearson v. Murray, 182 A. 590 
(1936). Between 1938 and 1954 Constitutional principles 
were argued by civil rights attorneys and affirmed by the 
United States Supreme Court. See Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337 (1937); Sipuel v. Oklahoma, 332 
U.S. 631 (1948), Sweatt v. Painter, 339 U.S. 629 (1950), 
McLaurin v. Oklahoma, 339 U.S. 639 (1950). The year 1954 
witnessed the fulfillment of the dream of the NAACP and 
Legal Defense Fund lawyers. In Broivn I, supra, at 495 
the court held ‘ ‘ in the field of public education the doctrine 
of ‘separate but equal’ has no place. Separate educational 
facilities are inherently unequal. Therefore, we hold that the 
plaintiffs and other similarly situated . . . are . . .  by reason 
of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment” . A similar conclusion was reached and seg­
regated education in the District of Columbia adjudged 
a deprivation of liberty in that it was violative of the 
due process clause of the Fifth Amendment and Bolling v. 
Sharpe, 347 U.S. 497 (1954).

The above cases establish without a doubt that racial 
classifications cast an ignominous shadow over the na­
tion’s history and its basic fundamental principles as a 
free democratic society. Yet, in all the cases excluding 
blacks and other minorities from access to public and 
private places, racial classifications were designed, utilized 
and enforced to “ explicitly or covertly, to stigmatize, ex­
clude and accord inferior treatment to minorities” . Bakke, 
supra at 115. See e.g., Jones v. Mayer, 392 U.S. 409, 445-447 
(1967); Gayle v. Browder, 352 U.S. 903 (1956); Jlunter v. 
Erickson 393 U.S. 385 (1969).

As progenies of slaves in this country, Amici has al­
ways labored under the belief that the purpose of the



42

Fourteenth Amendment was for the benefit and the pro­
tection of black people. Amici has relied on the Slaughter­
house Cases, 83 U.S. (16 Wall.) 36, 81 (1873); accord, 
Speech of Senator Edward Brooke, “ Crisis in Affirmative 
Action,” Georgetown National Law Center 4-5 (May 25, 
1977) as a basis for their belief. Racial classifications at 
issue in this case are those designed to erase the “ badges of 
slavery” Jones v. Mayer, supra at 445 and to promote the 
constitutional goals embodied in the Fourteenth Amend­
ment.

B. Promotion of Integration in California

The burden of proof was on Bakke to establish that the 
program as administered by the University of California 
fell outside the protection of the purpose of the Four­
teenth Amendment, as well as beyond the protection of 
state law and announced policy. Simply stated: Bakke 
failed to carry this burden as a matter of fact and law. 
This failure becomes more pronounced when even the cas­
ual reader assesses the legislative hearing of the Califor­
nia Legislature of March 2, 1977, in which David Saxon, 
President of the University of California stated:

“ We are determined to provide new opportunities 
for members of groups who have been underrepre­
sented in higher education, both because it is right 
and because the entire society ultimately benefits from 
the fullest possible realization of individual poten­
tial . . .

“ But there is no blinking the fact that accurate 
measures of human potential may be some years 
away. And in the meantime, in justice to students 
whose promise deserves the opportunity for fulfill­
ment and to a society which needs their contributions, 
we have instituted various kinds of special admissions 
programs which, for lack of better measures not yet 
available, give weight to ethnic origin. At this stage, 
such special programs are clearly the most effective



43

way of improving minority access to graduate and 
professional instruction. And that is why we have 
pursued the full judicial avenues in the Bakhe case 
so tenaciously and will continue to do so.

“ In the long run, however, race is not the best 
measure to use—and I say this not only because the 
use of race can be invidious but because it is so crude 
a measure, so impoverished a way of classifying hu­
man beings. And so we will continue to work through­
out the University on finding better measures of hu­
man potential.

“ But let no one mistake our motives in pursuing 
the search for better admissions techniques at this 
time. The search does not indicate that we believe we 
are likely to lose the current case before the Supreme 
Court, or that we are not marshalling our best talents 
and committing our fullest energies to winning the 
case. We must win, because we are still developing 
other and better measures, and minority enrollments 
would surely suffer if we could not continue using 
race as a direct measure for some time to come.

“ If minority enrollments suffer, some minority stu­
dents with high potential would be lost to themselves 
and to society. And that discrimination against human 
potential, however unintended and however related to 
our present inadequate measures, must not be allowed 
to happen. It is to prevent that most tragic kind of 
discrimination that the University is determined to 
persuade the highest court in the land of the justice—• 
the rightness—of missions procedures that will pre­
serve the access of promising minority students to 
our colleges and universities.”

Transcripts and Statements, Hearings On the Bakke 
Decision California State Legislature at p.p. 91-93, March 
2, 1977 (NO. 603) (original emphasis)

It is noteworthy that the notion that blacks have caught 
up to a point where a neutral application of the law 
should now be applied is rebutted by President Saxon’s 
testimony before the California Legislature. This educa-



44

tor flatly states that at this time special admissions pro­
grams are “ clearly the most effective way of improving 
minority access to graduate and professional instruction’’.

C. The Racial Classification In This Case Is Constitutionally
Permissible

Where segregation results directly or indirectly from 
past or present racially motivated public policies the Con­
stitution has been held to require favorable treatment of 
minorities. See, for example, United States v. Jefferson 
County Board of Education, 372 F.2d 836 (5th Cir., 1966), 
cert, denied 389 U.S. 840, 19 L.Ed. 2d 103 (1967) which 
held that school districts formerly segregated by law must 
go beyond neutrality and take affirmative action to bring ( r
Negroes into formerly white schools. In Carter v. Galla­
gher, 452 F.2d 315, 331 (8th Cir. 1971), cert, denied 406 
U.S. 950, 32 L.Ed. 2d 338 (1972), the court stated:

“ It would be in order for the District Court to man­
date that one out of every three persons hired by the 
[Minneapolis] fire department would be a minority in­
dividual who qualifies until at least 20 minority per­
sons have been so hired.”

Indeed, this Court has emphatically recognized the uti­
lization of racial classification of students to achieve inte­
gration in school assignments. The Court had made this 
rather clear:

“ 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.” Board of Education v. Swann, 402 
U.S. 43, 46 (1971).

And where there is racial imbalance not resulting from 
racially motivated public policies, the courts have permit­
ted the public agency to remedy that imbalance by giving 
preference to minorities. For example, in Porcelli v. Ti-



45

tus, 431 F.2d 1254 (3d Cir. 1970), the court held that a 
school hoard may give preference to black teachers over 
white teachers in order to integrate the faculty and 
stated:

“ State action based partly on considerations of color, 
when color is not used per se, and in furtherance of 
a proper governmental objective, is not necessarily a 
violation of the Fourteenth Amendment.”

The United States Supreme Court has recognized that 
the equal protection clause does not inflexibly require 
blindness to the special problem and needs of minority 
groups. In Swann v. Charlotte Mecklenburg Board of 
Education, 402 U.S. 1, 16, 28 L.Ed. 2d 554, 566 (1971) the 
court held that school authorities may assign minority 
students to a particular school in the same proportion to 
its student body as the minority bears to the whole popu­
lation :

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

Even if we assume, contrary to the facts, that Plaintiff 
was displaced from the Davis Medical School because of 
the special admissions program, he is in exactly the same 
position as a Caucasian student displaced from school by 
the operation of the minority program at issue in Sivann, 
or a Caucasian teacher who failed to be promoted because 
of the minority preference in Porcelli.

Thus, the broad discretion of admission officers to ac­
cept those students it deems necessary for the benefit of



46

the school, the profession, and society includes discretion 
to consider minority group status.

This statement compliments and supports Judge Tro- 
briner’s statement that:

“ The racial classifications embodies in the special 
admissions program are not intended to, nor do they 
in fact, exclude any particular racial group from par­
ticipation in the medical school; on the contrary, the 
program is aimed at assuring that qualified appli­
cants of all racial groups are actually represented in 
the institution.” 553 P.2d 1152, 1175 (dissenting).

Unless the current trend and state of the law is that 
integration and its effectuation via special programs 
which promote integration are per se invidious, the Cali­
fornia Supreme Court must be reversed. As stated and 
supported throughout Amici brief, the compelling state 
interest is lodged squarely in the recognition that at pres­
ent there is no other way of improving minority access to 
graduate and professional instruction.

In sum, the central purpose of the equal protection 
clause of the Fourteenth Amendment to the United States 
Constitution and of the federal civil rights acts was to 
protect black people against oppression and discrimina­
tion by the majority. See, e.g., Strauder v. West Virginia, 
100 U.S. 303 (1880). The Supreme Court’s doctrine that 
racial classifications are constitutionally “ suspect” arose 
in the context of classifications that had the purpose or 
effect of disadvantaging racial minorities. See, e.g., Kore- 
niatsu v. United States, 323 U.S. 214 (1944); Brown v. 
Board of Education, 347 U.S. 483 (1954); McLaughlin v. 
Florida, 379 U.S. 184 (1964). The Court has not implied 
that nonoppressive and nonindividious racial classifications 
are suspect or impermissible, but on the contrary, has 
permitted race to be taken into account for remedial pur­
poses. See Swann v. Charlotte-MecMenburg Board of Edu­
cation, 402 U.S. 1 (1971). See generally Ely, The Constitu-



47

tionality of Reverse Racial Discrimination, 41 U. Chi. L. 
Rev. 723 (1974).

We do not argue that benign racial classifications 
should be immune from judicial scrutiny. The use of race 
always carries potential for abuse, which calls for scru­
tiny more demanding than the illusory “ minimally ra­
tional” classification standard that is often applied to 
economic regulations. See Gunther, Foreword: In Search 
of Evolving Doctrine on a Changing Court: A Model for 
a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972). In 
examining a program purporting to aid rather than op­
press traditionally disadvantaged minorities, the court 
should inquire whether the program is in fact designed 
and operated so as to substantially further constitution­
ally legitimate and important social objectives. See, e.g., 
F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 
(1920); Nebbia v. New York, 291 U.S. 502 (1934).

D. The Special Admissions Program ai the Davis Medical School 
Serves Ralional and Compelling Stale Interests.

The general rule is that a classification must be sus­
tained against a claim of denial of equal protection if 
there is any rational basis for it. The United States Su­
preme Court has, however, carved out a narrow exception 
to this rational basis test: when the classification is to the 
detriment of a minority race it is called a “ suspect” clas­
sification requiring proof that the objective of the classifi­
cation serves a compelling state interest rather than 
merely any rational state interest. See “ Development in 
the Law—Equal Protection”. 82 liar. L. Rev., 1965 (1969); 
McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222 
(1964). The rational basis test would appear to apply in 
this case as the classification used by the Davis Medical 
School is not based solely upon the racial or minority 
classification of an applicant. The United States Supreme 
Court has never held or stated that race is a “ suspect



48

classification” triggering the compelling interest test 
when the purpose and effect of a classification is to bene­
fit minorities. Indeed, it is clear from the decisions of the 
Court, that the suspect classification category was cre­
ated to protect racial minorities. There is every indication 
that this extraordinary exception to the rational basis test 
is a shield protecting minorities against discrimination 
and not a sword preventing society from redressing the 
effects of historical discrimination against minorities.
Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 
920 (2nd Cir. 1968).

In any event, the special admissions program at the 
Davis Medical School meets either the rational interest 
or the compelling interest test. The fact is that adequate |P
medical and legal services to minority group persons is 
one of the great unmet medical and legal needs in our 
society and doctors and lawyers from such backgrounds 
are seriously under-represented in the medical and legal 
professions. This condition can be improved by admission 
of students from these groups.

E. Impact On The Professions Of Law And Medicine For 
> Black Americans; A Compelling Stale Interest

As illustrative of the broader issue involving affirmative 
action programs and their constitutional efficacy, this 
Court last term had before it the issue of affirmative 
action involving law school admission of black students.
DeFunis v. Odegaard, 416 U.S. 1038 (1974). Today, the 
Court is faced with another important professional as- ( 0
pect of the American society: the admission of minority 
applicants to medical schools as a result of affirmative 
efforts. As the following discussion points out “ The black 
legal community of this nation is small, far too small to 
address itself to the myriad and more complicated legal 
task which it is frequently called upon to undertake.”
Smith, Towards a Houstonian School of Jurisprudence 
and the Study of Pure Legal Experience, 18 How. L.J.



49

1, 10 (1973). Likewise, the black medical community is 
small and is not capable of serving numerous blacks in 
need of medical care and treatment. The ominous threat 
of the extinction of other professions in which there are 
few or no blacks hangs in the balance if the opinion of 
this Court should side with those arguing that affirmative 
action programs are not constitutionally protected.

Hence, the Bakke position fundamentally affects equal 
opportunity for black participation in American society in 
the area of law and medicine, and all professional life it­
self.

As statistics bear out, there are few blacks among mem­
bers of the American bar. Significantly “ [b]etween 1900 
and 1940 the percentage of representation of Blacks in 
the bar ranged between .6 and .8 percent. . . . [T]he 
lawyer population generally grew very little between 1900 
and 1920 . . . [B]etween 1930-1940 it increased almost 
40,000.” Toilet, Black Lawyers, Their Education and the 
Black Community, 17 How. L.J. 326, 346 (1972).

United States History with its continuous themes of 
struggles for liberty and against racial injustice, has 
demonstrated, in a telling way, the major importance of 
lawyers to the nation. “ Traditionally, lawyers have 
played a critically important role in the political and eco­
nomic development of the United States. Twenty-five of 
the fifty-six signers of the Declaration of Independence 
were lawyers. Thirty-one of the fifty-five members of the 
Constitutional Convention were lawyers. The United 
States House of Representatives and Senate and the state 
governments and legislative bodies across the country 
have had a larger proportion of officials and members 
from the legal profession than from any other profession 
. . . [PJerhaps no society, culture or country has per­
mitted or projected lawyers to the level of prominence 
they have had in the United States since the Declaration 
of Independence.” Id. at 326-27. Major issues of power



and authority, civil liberties and civil rights confronted 
by the society more often than not have ended in litiga­
tion. Black lawyers, leaders in the political arena and 
counsel in the courts, have managed and resolved such 
national confrontations and disputes. See Alfred Kelly 
and Winfred Harbison, The American Constitution (Re­
vised edition; New York, 1976); Norman Dorsen, ed., The 
Rights of Americans (New York, 1970); See e.g., Fletcher 
v. Peck, 6 Cranch 87 (1870); American Communications 
Association v. Bonds, 339 U.S. 382 (1950); Dennis et at. v. 
United States, 341 U.S. 494 (1951); Strauder v. West Vir­
ginia, 100 U.S. 303 (1880), Hodges v. United States, 203 
U.S. 1 (1906); Norris v. Alabama, 294 U.S. 587 (1933), 
Steele v. Louisville & Nashville Railroad Company, 323 
U.S. 192 (1944); Shelley v. Kramer, 334 U.S. 1 (1948); 
McLaurin v. Oklahoma, 339 U.S. 637 (1950); and Brown v. 
Board of Education, 347 U.S. 483 (1954). This case now 
before the Supreme Court, is another instance in which 
minorities in the legal profession have come to be relied 
upon as advocates in a matter involving equal opportunity 
for minorities in higher education in a democratic society.

In 1976, the total number of white lawyers in the United 
States was estimated to be 400,000 while the total number 
of black lawyers was approximately 7,500 or 1.8% of the 
profession. A 1976 Association of American Law Schools7 
survey of minority group students in legal education in­
dicates a total of 5,503 Black Americans enrolled in ap­
proved law schools 1976-77 as compared with 5,127 in 
1975-76 and 2,128 in 1969-70. The “ largest absolute in­
crease in first year enrollment was that for blacks [i.e., 
2,045 (1975-76) to 2.128 (1976-77)]; however, the increase 
of 83 in the first year for black law students represented 
the smallest percentage increase of the six groups [i.e., 
Black American, Chieano, Puerto Rican, other Hispanic- 
American, Asian or Pacific Islander, Native American or 
Alaskan Native].77 Rudd, Executive Director, Association



51

of American Law Schools, Memorandum to Executive 
Committee, April 1, 1977 (Washington, D.C., 1977); Slo­
cum, Executive Director of Council on Legal Education 
Opportunity, “ Statistical Information on The Black Law­
yer”, April 7, 1977 (Washington, D.C., 1977); See also 
National Bar Association’s “ Survey of the Black Lawyer” 
(Washington, D.C. 1972). Nevertheless, United States Cen­
sus Bureau Statistics which place the population of the na­
tion in 1970 at 203,211,926: 22,580,289 black and 177,- 
748,975 white Americans—prompt the conclusion that 
there remains a need for black lawyers. Commerce Dept., 
Bureau of the Census, “ Population . . .” (1970).

The available pool of black lawyers has increased in 
absolute numbers but the percentage of blacks in the pro­
fession among all lawyers is not notably higher now than 
it was more than forty years ago. According to the esti­
mates in 1930, black lawyers comprised less than .007 per­
cent of the entire profession. Although figures vary, it 
appears that as compared with 159,735 white lawyers, 
there were between 1,175 and 1,230 black members of the 
bar. Houston, “ The Need For Negro Lawyers” 4 Journal 
of Negro Education 49 (1935). In the words of Dr. Charles 
Houston, a prominent black jurist of the period, despite the 
fact that arguments could be made that “ there [were] 
enough white lawyers to care for the ordinary legal business 
of the country”, there was a “ Need For Negro Lawyers”. 
“ Ordinary legal business” did not constitute the total 
work of attorneys in the United States then any more 
than it does now. “ [W]here . . . pressure is greatest and 
racial antagonism most acute . . . the services of the Ne­
gro lawyer as a social engineer [were] needed.” Id.

The need for Negro lawyers expressed by Dr. Charles 
Houston in 1935 has not changed in forty years even with 
recent affirmative action efforts. The society has continued 
to produce an abundance of white lawyers while the num­
ber of black lawyers, to say nothing of Americans of



52

Spanish descent and American Indians, has remained 
static or inconsequential. Griffin, Admissions: A Time for 
Change, 20 Hoiv. L.J. 128, 134, n.23 (1977). As Professor 
Griffin points out it is disquieting to know that blacks 
constitute 11.4 percent of the republic, yet comprise 1.8 
percent of the republic’s legal profession; and disquieting 
to know that Americans of Spanish descent make up 4.4 
percent of the population and comprise 0.9 percent of the 
legal profession; and disquieting to know that the Ameri­
can Indian comprises 800,000, yet may count fewer than 
325 Indian attorneys among its population. A recent re­
port by the Vice President for Academic Administration 
at Temple University indicates that there is one black 
attorney for every 5,000 blacks as compared with one 
white attorney for every 750 whites. Watson, “ The Fu­
ture of Graduate and Professional Schools,” Conference 
on Advancing Equality of Opportunity: A Matter of 
Justice (Washington, D.C., May 15, 1977).

The number of black lawyers and law students has al­
ways been disproportionate to the needs of the black 
community and the nation. This problem has been ad­
dressed in major studies by black legal scholars since 
1927. An examination of studies demonstrates clearly how 
gradually blacks have moved into the legal profession.

In 1934-1935, Houston and another black legal scholar, 
Fitzhugh L. Styles, author of Negroes and the Law, fur­
ther indicated the pressing need for black lawyers in 
studies which reviewed the size of the legal profession 
by state in 1934 and juxtaposed white and black lawyers. 
Houston, “ The Need for Negro Lawyers” 4 Journal of 
Negro Education 49, 50 (1935); Styles, Negroes and the 
Laic, 232, 234 (1937). These studies showed black lawyers 
represented .007 percent of the total population of the 
legal profession in 1935. There wTere then fewer than 1,230 
black lawyers in the nation.

*



53

A later “ Black Lawyer’s Study” prepared by Profes­
sor Jerome Shuman, indicated that even by 1971, black 
lawyers comprised less than one per cent of the entire 
profession due to both “ inability to afford a, legal educa­
tion” and the “ exclusionary practices of many of the law 
schools.” Shuman, “ A Black Lawyers Study”, 16 How. 
L.J. 225, 229-230 (1971). Hence, there has been some 
progress in the past six years, but not nearly enough 
effort to “ jump and shout” !

It is clear from Shuman’s study that by 1971, or 36 
years after Houston’s study, the number of black lawyers 
had increased by only 3,000 black attorneys. Today, there 
are approximately 7,500 black lawyers, as opposed to 
nearly 400,000 white attorneys. In 1935 there were 158,- 
735 white attorneys. In short, there has been no signifi­
cant increase in the black lawyer population, and the con­
cerns voiced by Houston in 1935 remain constant in 1977. 
Indeed, Professor Tollett has concluded that “ [Ujntil 
. . . oppressed minority groups approach proportional 
representation in law school and the bar, preferential or 
special recruitment programs imperatively should con­
tinue apace.” Tollett, supra at 352 (emphasis added).

The impact of Bakke operates to summarily undermine 
the need and desire for equal opportunity in the field of 
medicine, also. Historically, the medical profession has 
been grossly under-represented in terms of black partici­
pation and membership, thus demanding the necessity for 
greater black enrollment in medical schools. (See Appendix 
C) A recent, yet unpublished statistical study prepared by 
Dr. Elizabeth Abramowitz of the Institute for the Study of 
Educational Policy is most illustrative of this theory. 
Abramowitz, “ Black Enrollment in Medical Schools” More 
Promise Than Progress (Institute for the Study of Educa­
tional Policy—-Howard IT., Wash., D.C.)



54

Dr. Abramowitz’s study reveals a well-known fact that 
the need exists for “ more doctors as health providers 
sensitive to the needs of black patients and as medical re­
searchers studying health problems related to social class 
and race.” Notwithstanding medical research, federal in­
volvement with medical schools has centered around pro­
viding financial assistance for the training of those per­
sons promising to work in underserved rural and urban 
communities. In spite of this attempt, however, the num­
ber of black doctors in the United States falls short of 
being described as negligible.

In 1974, for example, black doctors comprised 2% of 
all practicing doctors in the U.S., while at the same time, 
black citizens comprised 11% of all citizens. Keeping 
these figures in mind, if the only means of health service 
accessible to blacks emanated from the 6,600 black doc­
tors, there would be only one black doctor for every 3,400 
black persons. In comparing this situation with the then 
existing 330,000 white doctors, there would have been one 
white doctor for every 557 white persons. The result: the 
black doctor continues to be a limited resource in the 
medical delivery system for black and white patients, 
similarly.

The American Medical Association, hoping to alleviate 
this “ supply” problem, endorsed the remedy of “ increas­
ing the number of black medical students to a figure 
roughly proportional to the black population.” The goal 
set in the late 1960’s, by the AMA, was to have 10% 
black enrollment in medical schools by the mid-1970’s. In 
1969, however, blacks totalled 2.8% of the 37,669 medical 
students, and by 1974, blacks totalled only 6% of the 
53,554 medical students. Granted, that in this time span 
black enrollment in all medical schools increased 223% 
(from 1,038 in 1969 to 3,355 in 1974), however, black en-



55

rollment in all medical schools has not reached, and is not 
even near reaching, a comparable degree of similitude 
with the black population.

In 1969 only two historically black medical schools ex­
isted in the U.S., Howard University and Meharry Medi­
cal College, and these schools enrolled slightly less than 
one-half (46%) of all black medical students. However, 
by 1973, black enrollment in historically black medical 
schools accounted for only 21% of all black medical stu­
dents. In other words, between 1969 and 1972, the most 
significant increase in black enrollment in medical schools 
occurred on the campuses of historically and predomi­
nantly black medical schools.

This racial isolation in the fields of law and medicine is 
indicative of the racial isolation and non-access of blacks 
to other professional and highly technical fields.

It must follow where a state decides within the exercise 
of its police power that there is a compelling state interest 
to correct this glaring tragedy on the promise of equality, 
that such a state policy is permitted under the Fourteenth 
Amendment.

III. THE RATIONALE OF BROWN COMMANDS THE REVERSAL 
OF THE CALIFORNIA SUPREME COURT

This Court’s pronouncement in Brown v. Board of 
Education, 347 U.S. 483 (1954), 349 U.S. 294 (1955) sig­
nalled and simulated a great advance in the struggle of 
blacks for full equality in this society. To understand and 
appreciate Brown’s impetus to the Civil Rights struggle 
it is necessary to understand what the struggle was and is. 
It is a struggle to obtain pure legal existence for black 
people in American.



56

In Brown v. Board of Education, supra, the United 
States Supreme Court concluded “ that in the field of 
public education the doctrine of ‘separate but equal’ has 
no place.” Id. at 495. This court uttered that “ the plain­
tiffs . . . for whom the actions have been brought are, by 
reason of the segregation complained of, deprived of the 
equal protection of the laws guaranteed by the Four­
teenth Amendment.” Ibid.

The Brown decision was written to free the republic 
of the psychological knowledge at the time of Plessy v. 
Ferguson, supra, as well as to repudiate the doctrine 
which is associated with its name. Hence, the court opened 
the door to black people in this nation to roam its fields, 
to climb its ladders in the arts and humanities, to tinker 
with its values, and to allow access to street cars as well 
as this nation’s medical and other professional schools of 
higher education. The Brown decision was a judicial an­
nouncement of existence for black people and others simi­
larly situated in a democratic society. Blaustein and Fer­
guson, Desegregation and the Law (Knoff 1962).

It would seem, as Professor J. Clay Smith, Jr. has writ­
ten, that affirmative action is but another element of black 
people’s struggle to obtain pure legal existence in Amer­
ica. Smith, Towards A Houstonian School of Jurispru­
dence and the Study of Pure Legal Existence, 18 How. 
L.J. 1 (1973). Professor Smith has written:

“ Throughout the history of black people in America 
there has been a profound physical and intellectual 
struggle to be free, to be treated fairly under the law 
by persons charged with the responsibility of enforc­
ing the law or by those charged with its interpreta­
tion. Unequal treatment of black people in the form 
of custom, local and national laws, early court cases



57

(and no doubt administrative decisions) obviously 
negated the application of the natural law to black 
people. Today, by-and-large, the lack of recognition 
of the metaphysical worth of black people stems from 
the mistaken belief that black people are less than 
human. This negative phenomenon lodged itself into 
the common and statutory laws and customs in early 
American history. Legal negation, whether in the na­
ture of expressed or implied law, or by application 
or interpretation, has left its mark on the minds of 
the citizens of America, both black and white. To the 
extent that the uneven and disparate application of 
the law has left any notion of the lack of the worth 
and human dignity of black people, or has interfered 
in any way with their natural right to freely partici­
pate in a republic born on a philosophical base that 
all men are created equal under law—to that extent, 
black people have been denied a pure legal existence. 
Pure legal existence looks to the future but studies 
the present and the past of the law that touches black 
people and those similarly situated, in order to trace, 
to ascertain, and to analytically assess the growth 
of how near they are to an existence which is free 
from racial discrimination. Pure legal existence, then, 
is an existence, under law, which is barren of racial 
discrimination in law and in its application; it encom­
passes being in a society in which the accouterments 
of slavery are no more.” Id. at 4-5.

Out of the struggle to obtain a pure legal existence for 
black people in America there were legions of lawyers who 
have entered the legal arena to cast a new and innovative 
approach and to give a more profound meaning to the 
rule of law as written and as applied to black people. As 
Professor Smith observed:

“ That approach assisted in the formulation of the 
legal strategy to rewrite an historical tragedy—ra­
cism. . . . ” Id. at 5.



58

The Civil Eights struggle today is indebted to the 
Houstonian School of Jurisprudence for its legal plan­
ning and strategy and for the men and women it has 
trained and inspired to use the law as a tool for social 
progress to realize a pure legal existence for black people 
in America.

Chief Justice Taney in Bred Scott v. Sanford, 19 How. 
393, 403 (1857), with great legal scholarship, has best 
described the legal position of black people before the 
Civil War. Blacks were “ non-beings” in the law. Taney 
could not find within Anglo-American jurisprudence a 
legal description for blacks. He could not classify them 
within the existing tools for legal characterization. In the 
words of Taney:

“ The question is simply this: Can a negro, whose 
ancestors were imported into this country, and sold 
as slaves, become a member of the political com­
munity formed and brought into existence by the Con­
stitution of the United States, and as such become 
entitled to all the rights, and privileges, and immuni­
ties, guaranteed by that instrument to the citizen? 
One of wThich rights is the privilege of suing in a 
court of the United States in the cases specified in 
the Constitution.

It will be observed, that the plea applies to that 
class of persons only whose ancestors were negroes 
of the African race, and imported into this country, 
and sold and held as slaves. The only matter in issue 
before the court, therefore, is, whether the descen­
dants of such slaves, when they shall be emancipated, 
or who are bom of parents who had become free be­
fore their birth, are citizens of a State, in the sense 
in which the word citizen is used in the Constitution 
of the United States. And this being the only matter 
in dispute on the pleadings, the court must be un-



59

derstood as speaking in this opinion of that class 
only, that is, of those persons who are the descen­
dants of Africans who were imported into this coun­
try, and sold as slaves.

It is difficult at this day to realize the state of 
public opinion in relation to that unfortunate race, 
which prevailed in the civilized and enlightened por­
tions of the world at the time of the Declaration of 
Independence, and when the Constitution of the 
United States was framed and adopted. But the pub­
lic history of every European nation displays it in a 
manner too plain to be mistaken.

They had for more than a century before been re­
garded as beings of an inferior order, and altogether 
unfit to associate with the white race, either in social 
or political relations; and so far inferior, that they 
bad no rights which the white man was bound to 
respect; and that the negro might justly and lawfully 
be reduced to slavery for his benefit. ’ ’ Id. at 407.

To achieve and perpetuate this legal non-being in the 
words of Frederick Douglass:

“ To make a contented slave you must make a 
thoughtless one, . . . darken his moral and mental 
vision, and . . . annihilate his power of reason. He 
must be able to detect no inconsistencies in slavery. 
. . .  It must not depend upon mere force: the slave 
must know no higher law than his master’s will.”

The words of Mr. Justice Douglas, concurring in Jones 
v. Mayer Co., supra at 445-447, are sobering in reflecting 
upon the viability of the system to continue its oppression 
of blacks:

“ Some badges of slavery remain today. While the 
institution has been outlawed, it has remained in the 
minds and hearts of many white men. Cases which



60

have come to this Court- depict a spectacle of slavery 
unwilling to die.”

The legal struggle for equality of opportunity to which 
Brown gave great impetus is still far from its stated ob­
jectives and goals. This litigation brings before this Court 
the most serious challenge to the Civil Eights advancement 
raised since Brown.

The importance of the field of education to the Civil 
Rights advancement has been stated by Professor Smith 
thusly:

“ Educational opportunity has been long the major 
focal point for the removal of barriers to better jobs 
in the government and industry for providing the 
training of teachers to teach black children to read, 
to write, and to facilitate their learning with dreams 
of professional achievement and creativity in the arts. 
Nonbeing for black people has been tlm history of 
bondage which existed in America, the historical ne­
gation of educational opportunities, and the disparate 
treatment in nearly every endeavor by blacks who 
have sought to drink from the well of equality and to 
eat from the tree of life in a society in which no man 
is above the law.” 18 How. L.J. 1, 8-9.

The concept of affirmative action in the United States 
was in its inception designed to award preference to 
Blacks and other minorities in employment and education. 
The beneficiaries of affirmative action are the victims of 
past and present discrimination. Visualized as a remedial 
tool, the concept is a method for redress. As was stated 
in Karst, “ Affirmative Action and Equal Protection”, 60 
Va. L. Rev. 955, 964 (1974): “ The overriding purpose of 
affirmative action is not to remedy yesterday’s discrimina­
tion, but to serve today’s social needs.”



61

The late President Lyndon B. Johnson summarized 
America’s moral dilemma of race in the following lan­
guage:

“ For the cries of pain, and the hymns and protests 
of oppressed people, have summoned into convocation 
all the majesty of this great Government, the Govern­
ment of the greatest Nation on earth. Our mission is 
at once the oldest and most basic of this country: to 
right wrong, to do justice, to serve man. In our time 
we have come to live with the moments of great 
crisis. Our lives have been marked with debate about 
great issues—issues of war and peace, issues of 
prosperity and depression. But rarely, in any time, 
does an issue lay bare the secret heart of America 
itself. Rarely are we met with the challenge, not to 
our growth of abundance, or our welfare or our se­
curity—but rather to the values and the purposes and 
the meaning of our beloved Nation. The issue of 
equal rights for American Negroes is such an issue. 
And should we defeat every enemy, and should we 
double our wealth and conquer the stars and still be 
unequal to this issue, and then we will have failed as 
a nation.” U.S. President, Johnson “ Message Rela­
tive to the Right to Vote”, (March 15, 1965).

It is the view of Amici that in order to achieve effective 
and positive results under the mandate of affirmative ac­
tion, racial classifications and preferential treatment 
are necessary. Race must be taken into account in order 
to effectuate the goal of an integrated society.

The concept of preferential treatment has its origin in 
the Civil War Amendments and the Reconstruction Acts. 
Both were primarily adopted to benefit former slaves 
and to correct their former conditions of servitude.

Historically, Congress has demonstrated a disposition 
to provide special opportunities and relief for the for­
merly enslaved Blacks. The thrust of such actions gave 
rise to educational assistance (1863), to the development 
of the Freedmen’s Bureau (1865-67) and to special finan-



62

cial assistance toward the development of higher educa­
tion for the freedmen (1867-1928).

In 1863, before the Emancipation Proclamation, and 
preceding the creation of the Freedmen’s Bureau, Con­
gress was cognizant of the need to educate those who 
were in human bondage. Therefore, Congress by its own 
initiative incorporated an institution for the education of 
colored youth in the District of Columbia. The stated ob­
jectives of the institution were:

“ To educate and improve the moral and intellectual 
condition of such of the colored youth of the nation 
as may be placed under its care and influence . . . .” 
12 Stat. 796 (1863).

In 1865, Congress deemed it not only necessary and 
permissible under the Thirteenth Amendment, hut also 
within its powers to establish an agency which would pro­
vide assistance and relief as well as protect the rights 
and interest of loyal white refugees driven from their 
homes as a result of war and freedmen.

“ An act to establish a Bureau for the relief of Freed­
men and Refugees” provided that:

[T]here is hereby established in the War Depart­
ment, to continue during the present war of rebellion, 
and for one year thereafter, a Bureau of refugees, 
freedmen, and abandoned lands, to which shall be 
committed of all abandoned lands, and the control 
of all subjects relating to refugees and freedmen 
from rebel states, or from any district or country 
within the territory embraced in the operations of the 
Army, under such rules and regulations as may be 
prescribed by the Bureau and approved by the Presi­
dent. The said Bureau shall be under the manage­
ment and control of a commissioner to be appointed 
by the President by and with the advice and consent 
of the Senate.” 13 Stat. 507 (1865)



63

In 1866, one year before the termination of the Act 
establishing the Freedmen’s Bureau, Congress acted to 
lengthen the term of the Act, but also to broaden its scope, 
thereby reinterating its concern for the freedmen. Presi­
dent Johnson, in February 1866, vetoed the legislation on 
constitutional grounds, arguing that there was no longer 
a need for a special agency such as the Freedmen’s Bu­
reau to administer to the affairs of the freedmen.

“ The war has substantially ceased; the ordinary 
course of judicial proceedings is no longer inter­
rupted; the courts, both State and Federal, are in 
full, complete, and successful operation, and through 
them every person, regardless of race and color, "is 
entitled to and can be heard. The protection granted 
to the white citizen is already conferred by law upon 
the freedmen; strong and stringent guards, by way 
of penalties and punishments, are thrown around his 
person and property, and it is believed that ample 
protection will be afforded him by due process of 
law, without resort to the dangerous expedient of 
‘military tribunals’, now that the war has been 
brought to a close.” 74 Congressional Globe 3838.

Johnson also, objected to the Bureau’s unbridled au­
thority to confiscate abandoned lands.

On July 16, 1866, Congress by two-thirds vote overrode 
Johnson’s veto of the Freedmen’s Bill. By overriding the 
veto, Congress reaffirmed its policy commitment to provide 
special relief and assistance to the Negro.

The second enactment of the Freedmen’s Bureau, like 
the first, operated under the express powers of Congress. 
71 Congressional Globe 918.

Section 12 of the Act goes further than the original Act 
by explicitly showing Congressional concern for the edu­
cation of freedmen:

“ Section 12: And be it further enacted, that the 
commissioner of this bureau have power to seize, 
hold, use, lease or sell all buildings and tenements,



64

and any lands pertaining to the same, or otherwise 
formerly held under color of title by the late so-called 
confederate states, and not heretofore disposed of 
by the U.S. and any buildings of lands held in trust 
for the same by any person or persons, and to use 
the same or appropriate the proceeds derived there­
from to the education of the freed people; and when­
ever the Bureau shall cease to exist, such of said so- 
called confederate states as shall have made provision 
for the education of their citizens without distinction 
of color shall receive the sum remaining unexpended 
of such sales or rentals, which shall be distributed 
among said state for educational purposes in propor­
tion to their population.” 14 Stat. 176. (1866).

Section B of the same Act indicates clearly that Congress 
intended the Commissioner of the Bureau to oversee the 
education of the freedmen.

“ And be it further enacted, that the commissioner 
of this Bureau shall at all times cooperate with pri­
vate benevolent association of citizens in aid of freed­
men, and with agents and teachers, duly accredited 
and appointed by them, and shall hire or provide by 
lease buildings for purposes of education whenever 
such association shall, without cost to the govern­
ment, provide suitable teachers and means of instruc­
tion; and he shall furnish such protection as will be 
required for the safe conduct of such schools.” Id.

By 1866, Congress set forth as one of its primary objec­
tives for the Bureau through its Commissioner, the monu­
mental task of overseeing the education of the freedmen.

Bureau implementation of this Act and a general policy 
to provide assistance to Blacks followed in 1867. Con­
sistent with its policy of providing educational opportuni­
ties for freedmen, Congress, in 1867, incorporated How­
ard University. 14 Stat. 438 (1867). Further Congress­
ional activity in 1867 evidences interest in special assist­
ance to Blacks: (1) “ A Resolution for the Relief of 
Freedmen or Destitute Colored People in the District of



65

Columbia ’ ’ stated that fifteen thousand dollars be, and 
the same is hereby, appropriated, out of any money in 
the treasury not otherwise appropriated, for the relief 
of freedmen or destitute colored people in the District 
of Columbia, the same to be expended under the direction 
of the Commissioner of the Bureau of Freedmen and 
Refugees. (15 Stat. at L., 20, 1867.) (2) “ [T]he Bureau 
allotted $407,752.21 to twenty institutions of higher learn­
ing for Negroes while $3,000 was given to a school for 
loyal refugees.” (G. Bentley, History of the Freedmen’s 
Bureau (1974), p. 179.)

It was not the intent of the Congress that Howard be 
an institution of higher learning exclusively for the bene­
fit of the freedmen; it was open to all. Section One of the 
Charter stipulated that Howard be a ‘University for the 
education of youth in the liberal arts and sciences” . Nev­
ertheless, while “ Howard’s Charter provided for the 
‘education of youth’, it can hardly be denied that the 
founders expected a sizable number of the students to be 
Negroes. Howard was thus unique because it also planned 
the education . of a sizable number of Negro men and 
women and white men and women.” Howard could be 
properly viewed, by 1870, as a “ predominately Negro 
University” . Rayford W. Logan, H oward U niversity, The 
F irst Hundred Years, 1867-1967 (New York, 1969), 25-26.

By 1870, some members of Congress were raising ques­
tions about the propriety of Commissioner Howard’s ex­
penditure of Bureau funds on Howard. The Committee 
■ on Education and Labor presided over the hearing 'which 
heard testimony concerning the authority of the Bureau 
to expend its education funds on Howard University.

In response to a charge that Gen. O. O. Howard, Com­
missioner of the Freedmen’s Bureau, acted improperly 
the committee stated:

“ If one of the very purposes of the Bureau was to
educate freedmen, and if the university was estab-



66

lished for that purpose, the expenditure was not im­
proper. The reports of the general school superin­
tendent of the Bureau which were put in evidence, 
show clearly that the great and earnest effort of the 
commissioner was to inaugurate a system of common 
school education among the freedmen. A necessary 
adjunct and indispensible condition precedent to this 
plan was to establish a university that could give life 
and energy to these widely scattered schools. The 
necessity of preparing and qualifying teachers for 
future use among the freedmen justifies the expendi­
ture.” House Beport No. 121 (July 15, 1870).

Here again Congress rebuffed challengers to its intention 
and developed policy to provide special assistance and 
opportunities for the Negro. By dismissing the charges 
against Gen. Howard on the above mentioned grounds, 
Congress reaffirmed its commitment to the education of 
the Negro. This commitment is further evidenced by the 
fact “ that between 1879 and 1925, the Federal Treasury 
appropriated over four million dollars” to Howard Uni­
versity, despite the fact that federal appropriations were 
not specifically required or authorized by the Act of In­
corporation.

Congressional policy with respect to education of 
Blacks is explicit in the language of the Committee on 
Education in its January 1926 Report which accompanied 
House Bill 8466, an Act to amend section 8 of the original 
Act of Incorporation of Howard University.

The Committee on Education, to which was referred 
H.R. 8466, a bill to amend Section 8 an act entitled 
‘An Act to Incorporate the Howard University in 
the District of Columbia,’ approved March 2, 1867, 
by authorizing Federal appropriations to aid in the 
construction, development, improvement, and main­
tenance of said university, having considered said 
bill, reports favorable thereon with the recommenda­
tion that the bill does pass as introduced.



67

Howard University was incorporated under the act 
of March 2, 1867. The first Federal appropriation for 
its aid was granted March 3, 1879. From that date 
the Federal Government has annually contributed to 
the construction maintenance, and development of the 
institution, $221,000 being the largest amount appro­
priated for maintenance in any one year. Since the 
establishment of the Budget System, however, and the 
consolidation of all jurisdiction over appropriations 
in one committee of the House, items recommended 
by the Budget and approved by the Committee on 
Appropriations have frequently been stricken out in 
the House on the point of order that such appropria­
tions are not authorized by existing law. The purpose 
of this bill is to authorize such appropriations for 
the maintenance, development, improvement, and con­
struction of Howard University as Congress may an­
nually desire to make.

Apart from the precedent established by 45 years of 
congressional action, the committee feels that Fed­
eral aid to Howard University is fully justified by the 
national importance of the Negro problem. For many 
years past it has been felt that the American people 
owed an obligation to the Indian, whom they dispos­
sessed of this land, and annual appropriations of siz­
able amounts have been passed by Congress in ful­
fillment of this obligation. The obligation in favor of 
the Negro race would seem to be even stronger than 
in the case of the Indian.3 The Negro was not robbed 
of his land as was the Indian, but he was seized by 
force and brought unwillingly to a strange country, 
where for generations he was the slave of the white 
man, and where, as a race, he has since been com­
pelled to eke out a meager and precarious existence.

Moreover, financial aid has been and still is extended 
by the Federal Government to the so-called land-grant 
colleges of the various States. While it is true that ne-

3 See this Court’s approval of preferential treatment of descend­
ants of the American Indian. M o r to n  v. M a n c a r i, 417 U.S. 535 
(1974).



grow [sic] may be admitted to these colleges, the con­
ditions of admission are very much restricted, and gen­
erally it may be said that these colleges are not at all 
available to_ the negrow, [sic] except for agricultural 
and industrial education. This is particularly so in the 
professional medical schools, so that the only class a 
school in America for training colored doctors, dentists, 
and pharmacists is Howard University, it being the 
only place where complete clinical work can be secured 
by the colored student.

There is furthermore a strong practical reason why 
a school like Howard University should be maintained 
in the District of Columbia. The Freedmen’s Hospital 
was authorized by Congress in 1904, and was built upon 
land owned by Howard University. The university gen­
erously leased the land to the Federal Government for 
99 years, at $1 a year, with a privilege of renewal for a 
like period. The existence of this hospital so near to 
the medical school of Howard University affords the 
students of the university an opportunity which exists 
nowhere else in this country to acquire the clinical 
course. On the other hand, this opportunity exists for 
white students in every State of the Union.

In addition to the great importance to the country of 
having an institution capable of developing trained 
leaders for the colored race in all walks of life, the 
urgent necessity of making possible a supply of prop­
erly trained phvsieians of that race for the protection 
of the health of all our people, white as well as black, 
must be plain to every fair-minded American citizen. 
House Report Ho. 121 45 Stat. 1021 (1928).

The minority report, which also accompanied Bill H.R. 
8466 to the floor presented opposing arguments based 
upon an interpretation of legality and constitutionality, 
widely at variance with the majority positions. Id.

This reasoning was not persuasive. The majority pre­
vailed and the House passed the Act providing statutory 
authorization for future federal appropriations to How-



69

ard University. An Act to amend section 8 of an Act en­
titled “ An Act to incorporate the Howard University in 
the District of Columbia ’ provided that:

“ Annual appropriations are hereby authorized to aid 
in the construction, development, improvement, and 
maintenance of the university, no part of which shall 
be used for religious instruction. The university shall 
at all times be open to inspection by the Bureau of 
Education and shall be inspected by the said Bureau 
at least once each year. An annual report making a 
full exhibit of the affairs of the university shall be 
presented to Congress each year in the report of the 
Bureau of Education. ’ ’

It is not arguable that an examination of the relation­
ships between Blacks and the Federal Government after 
1870 reveals abandonment of Black protection and the in­
stitutionalization of racist practices such as separate and 
unequal treatment. Furthermore, a specific survey of the 
Federal Government’s policy with respect to Black educa­
tion demonstrates a mixed response to the Black Ameri­
can’s call for equal education opportunities. Frequently 
ameliorative measures for the education of the general 
populace failed to stipulate sanctions against racially biased 
implementation of Congressional directives. Nevertheless, 
there is Congressional activity from 1863 to 1870 and 1926 
to 1928 which reflects a disposition to assist Blacks suffer­
ing under disabilities occasioned by a previous condition of 
servitude and race. Specific measures in regard to freed- 
men’s relief and education, 1863-1870 and Howard Univer­
sity, 1867-1928 together constitutes a parallel developing 
policy of educational opportunities for Blacks and affirm­
ative action toward the broadening of such opportunities.

Dr. Tollett states the legal basis in support of preferen­
tial treatment:



70

“ Three major overlapping and interrelated consti­
tutional arguments can be made in support of prefer­
ential admissions. First, the Civil War Amendments 
and Reconstruction Civil Rights Acts when construed 
together and structurally lead to the conclusion that 
they were adopted and enacted primarily for the 
benefit of other discrete insular disadvantaged minor­
ities similarly situated as Blacks; and they can be used 
formally and incidentally for the benefit of any group 
subjected to invidious discrimination. The primary and 
secondary purposes of these laws, thus, not only pro­
hibit discrimination against these groups, but also im­
pose an affirmative duty upon the states to establish 
and secure equity and justice to these groups. The 
primary and secondary purposes take priority over 
the formal and incidental purposes of these laws.” 
Toilet, “ Present Context of Graduate Education and 
Potential Impact on Minority Participation” (Un­
published) ; Spring, 1975.

In analyzing the plight of the American of African de­
scent, one may attempt to compare his trials and tribula­
tions with those of immigrants of European descent. Balike, 
553 P.2d 1153, 1163, n. 16. However to even so much as 
speak of comparing two such groups so diametrically op­
posed in terms of experiences, struggles, and means of 
adapting to this country and its practices, is absolutely 
absurd!

The manner in which these two groups of people were 
brought into this country is the most distinguishing point 
of reference that should be dealt with. The black person 
came to America as a slave, forced to live in this country 
in human bondage, forced to live in this country as human 
property. . . . Yet the indignity with which blacks were 
treated did not stop at such an apparently inhumane prac­
tice. The government of this country further endorsed the 
moral degradation of once historically proud people, by 
setting forth in its Constitution a provision clearly stating 
that the slave, i.e., the black person, was to be considered 
three-fifths of a person. One would think that this was the



71

epitome of demoralization, yet more was in store.... In some 
eases black persons in this country were encouraged to lose 
sight and hope of establishing any type of family ties, since 
it was not an uncommon practice to separate a mother from 
her loved ones or to bring together a black man and black 
woman for the purpose of procreating more suffering hu­
mans, a practice equated with that of breeding cattle. The 
black person in this country was not ony deprived of an 
education in which he would be able to learn to count basic 
numbers and write his own signature, but he was deprived 
of a more fundamental means of education—the ability to 
read. Hence, this country further endorsed the manner of 
keeping the black person ignorant, so ignorant that he knew 
of no other life beyond his visual scope, so ignorant that 
he was oftentimes drained of the very desire to learn and 
explore the possibility of another kind of life. That may 
have been beneficial to him, however, since he was not al­
lowed to travel freely, or even speak freely, without the 
risk of severe punishment, even death.

On the other hand, the immigrant of European descent 
never experienced such treatment or any reasonable fac­
simile to such; that much is certain . . .  no more need be 
said. Marcus Lee Hansen, The Immigrant in American 
History (1940).

This Court’s decision in Brown v. Board of Education, 
347 H.S. 483 (1954), 349 U.S. 294 (1955), outlawed racial 
classification by the state in affording educational facili­
ties. As a result of this decision the process of education 
in this country began to move from that of dual systems 
to unitary systems. In the process of desegregation—for 
remedying past effects of racial discrimination—race has 
been used as an affirmative factor. As the progeny of 
Brown, supra, spread from the field of education to all 
endeavors of activity of the State so did the use of race 
as an affirmative factor in attacking racial discrimination 
in the fields of housing, employment, voting, and other 
areas. As Senator Edward Brooke has stated:



72

“ And let there be no doubt that there are ample Con­
gressional Precedents for special categorical programs 
which consider age, race, socio-economic conditions 
and education deficiencies in allocating federal re­
sources. And there are specially targeted educational 
programs like the Trio programs and those contained 
in Title IX of the Higher Education Act. Special Bills 
to help the handicapped have also received great at­
tention and support.

“ Recently, there have been efforts by the Congress 
to turn away from the categorical funding concept. 
But, as ranking minority member on the Labor-HEW 
Subcommittee of the Senate Appropriations Commit­
tee, I see again and again recognition that many seg­
ments of our society have debilitating problems which 
will remain insoluble without intensive and particu­
larized aid. And, there is often a realization that, when 
left to their own devices, federal and state agencies 
or private institutions with substantial federal support, 
will not be sensitive or responsive to the needs of the 
poor, the disenfranchised or the disadvantaged.” Ed­
ward Brooke, IT.S. Senator from Massachusetts, Na­
tional Conference on the “ Crisis in Affirmative Ac­
tion” at the Georgetown Law Center, Washington, 
D.C., May 25, 1977.

America’s moral dilemma has raised the stark constitu­
tional issue of whether racial classifications may be used 
for “ benign purposes”. Stated another way—may the 
State single out racial minorities for favorable treatment, 
for remedial, compensatory, or similar purposes ?

As the late President Lyndon B. Johnson emphasized 
at the Civil Rights Symposium at the dedication of the 
Lyndon Baines Johnson Library, in Austin, Texas, De­
cember, 1972:

‘ ‘ [W] e cannot obscure this blunt fact, the black 
problem remains what it has always been, the simple 
problem of being black in a white society. That is 
the problem to which our efforts have been addressed. 
To be black in a white society is not to stand on



73

level and equal ground. While the races may stand 
side by side, whites stand on history’s mountain and 
blacks stand in history’s hollow. Until we overcome 
unequal history, we cannot overcome unequal oppor­
tunity. ’ ’

Amici desires the court to recognize what the Brown 
decision sought to achieve in this society and what has 
not come to be; that is, the full recognition by the domi­
nant race that because of segregation of the past and 
all of its ugly “ psychological accouterments” , black peo­
ple remain behind today in the republic solely on the basis 
of race. The Brown decision and its progeny have been 
painfully waged by people of goodwill, both black and 
white, in attempts to achieve the full promise of Brown. 
The court has had a sufficient number of cases before it 
in these past twenty-three years to be disabled to claim 
ignorance of the plight of black people in this society 
seeking to catch up to their rightful place in a society 
that plundered their being. Stated differently, Brown rep­
resents the rebirth [See Slaughter-House Cases, 16 Wall. 36, 
67-72 (1873).] of a legalism: that Black people have 
a legal existence in this constitutional democracy. The 
position that we take here in Bahhe represents a restate­
ment of a truism: that the same Fourteenth Amendment 
which recognized our legal existence announced in Brown 
protects black people from claims of reverse discrimnia- 
tion based on the implementation of affirmative action 
programs.

The basis of Balike’s claim is that he should be treated 
equally; that the affirmative action program of petitioner 
discriminated against him because it admitted black stu­
dents whose test scores were less attractive than his own; 
that the admission of black students caused his rejection 
and negated his aspiration to possibly participate in the 
society as a medical doctor. Amici reminds this court that 
this republic could have concurred in this very claim had 
it adopted the argument Bakke now raises in Bred Scott



74

v. Sanford, 19 How. 393 (1857). (See especially, Wayne 
Associate Justice, concurring in Dr eel Scott at 454.) Since 
the Court chose not to allow black people to “ become a 
member of the political community formed and brought 
into existence by the Constitution . . .  or to be entitled to 
all the rights, privileges, and immunities, guaranteed by 
that instrument . . .” the black American aborted, un­
watered above the ground in an unfree society while the 
roots of his free white brothers dug down deep into the 
earth capturing all the moisture, allowing them to take, 
expand and to receive every advantage offered by the so­
ciety. Id. at 403.

Amici does not fault jBakke for his claim. We do not, 
however, believe that this Court will allow the judicially 
created preference that it gave to white people between 
Dred Scott and Plessey (38 years) and from Plessey to 
Broivn (59 years) causing black people to remain in a 
judicially created second-class citizenship status for 97 
years, to be repeated here by undermining affirmative ac­
tion programs. The Court had an opportunity to make this 
a color blind society as a matter of law in Plessey; to 
make race a neutral factor in a democratic state. It chose 
not to do so, and now it should allow black people in this 
society to catch up under constitutionally protected affirm­
ative action programs as mandated by the Thirteenth and 
Fourteenth Amendments.

The stark issue ultimately revealed by this instant ap­
peal is whether the majority shall have more advantage 
because of their advantaged position. Bakke is in fact 
asking for more advantage: that whites be given the one 
hundred (100) seats so as to include him. Had the sixteen 
(16) seats been assigned to veterans, a preference de­
signed because the veteran had not only served his coun­
try but had been discommode i nd excluded from the 
mainstream for a period of time,. Bakke’s complaint would 
be that the non-veteran white majority’s rights had been 
infringed upon. Bakke’s complaint is that more white ma-



75

jority applicants should have been admitted, thus perpet­
uating the white advantage over other minorities in a 
program state supported by all the residents.

Can California perpetuate a system of education whose 
burden is borne by all its residents which perpetually en­
hances the advantages of its white majority to the supe­
rior societal benefits! Can this he done under the pretext 
that the Fourteenth Amendment to the Constitution, 
though intended to provide equality to the newly freed 
slaves and their descendants, commands this permanent 
inequality! Amici think not. They do not believe that the 
Constitution mandates a state of inequality in perpetuity 
for Black Americans.

Mr. Justice Stewart cited with approval in his concur­
ring opinion in Lau v. Nichols, 414 U.S. 563, 569, (1974), 
the following language:

“ Senator Humphrey, during the floor debates on the 
Civil Rights Acts of 1964, said: ‘Simple justice re­
quires that public funds, to which all taxpayers of all 
races contribute, not be spent in any fashion which 
encourages, entrenches, subsidizes, or results in racial 
discrimination.’ ”

CONCLUSION

This Court should not impose a constitutional require­
ment prohibiting the University of California, Davis, Med­
ical School from using race, along with other factors in 
selecting students for admissions. Race should meet con­
stitutional requirements when properly utilized as a part 
of an over-all admissions system.

The judgment below should be reversed.



76

Respectfully submitted,
Herbert 0. Reid, Sr.
J. Clay Smith, J r.
H oward University School of Law 
2935 Upton Street, N.W. 
Washington, D.C. 20008
C o u n se l f o r  T h e  N a tio n a l M e d ic a l  
A s s o c ia tio n , I n c .,  T h e  N a tio n a l B a r  
A s s o c ia tio n , In c .,  a n d  The N a tio n a l  
A s s o c ia tio n  f o r  E q u a l  O p p o r tu n i ty  
I n  H ig h e r  E d u c a tio n

June 6, 1977

On Brief
Genna Rae McNeil, Ph.D. 
Michael R. Winston, Ph.D. 
Herschelle Reed 
S tu d e n t  A s s is ta n ts  
Robert L. Bell 
Tamara D. Harris 
Carolyn P. Smith 
Eszart A. Wynters 
Albert S. Harris, J r. 
Robert H. Thompson



APPENDIX



APPENDIX "A"

H istorically B lack, J unior, F our Y ear Graduate 
and P rofessional I nstitutions

ALABAMA (13)
Alabama A & M University 
Alabama Lutheran Academy

Alabama State University

Bishop State Jr. College 
Daniel Payne College

Lawson State Community College

Lomax-Hannon College

Miles College 
Oakwood College 
Selma University

Normal, Alabama 35762
1804 Green Street 
Selma, Alabama 36701
1100 S. Jackson Street 
Montgomery, Alabama 36101
Mobile, Alabama 36603
6415 Washington Boulevard 
Birmingham, Alabama 35212
3060 Wilson Koad 
Birmingham, Alabama 35221
South Conecuh Street 
Greenville, Alabama 36037
Birmingham, Alabama 35064
Huntsville, Alabama 35806
1501 Lapsley Street 
Selma, Alabama 36701

Dr. E. D. Morrison 
Dr. Willis L. Wright

Dr. Levi Watkins

Dr. S. D. Bishop
Dr. James Luther Myers

Dr. Leon Kennedy

Bev. C. M. Smith

Dr. W. Clyde Williams 
Dr. Calvin B. Bock 
Dr. M. C. Cleveland, Jr.



Stillman College P. 0. Box 1430 
Tuscaloosa, Alabama 35491

Dr. Harold N. Stinson

Talladega College 627 W. Battle Street 
Talladega, Alabama 35160

Dr. Aaron Brown 
Interim President

Tuskegee Institute Tuskegee, Alabama 36088 Dr. Luther H. Poster
Arkansas Baptist College 1600 High Street

Little Rock, Arkansas 72202
Attorney J. C. Oliver

Philander Smith College 812 West 13th Street 
Little Rock, Arkansas 72203

Dr. Walter R. Hazzard

Shorter College 604 Locust Street
Little Rock, Arkansas 72114

Dr. Olney L. Griffin

University of Arkansas North Cedar Street Dr. Herman Smith
(Pine Bluff) Pine Bluff, Arkansas 71601 (Chancellor)

DELAWARE (1)
Delaware State College Dover, Delaware 19901 Dr. Luna I. Mishoe

DISTRICT OP COLUMBIA (4)
D. C. Teachers College 11th & Harvard Streets, N.W. 

Washington, D.C. 20009
Dr. Wendell Russell

Federal City College 1420 New York Ave. NW. 
Washington, D. C. 20005

Dr. Wendell Russell



Howard University 2400 - 6th Street, N.W. Hr. James Cheek
Washington, D. C. 20001

Washington Technical Institute 4100 Connecticut Avenue, N.W. Hr. Cleveland L. Hennard
Washington, H. C. 20008

FLORIDA (4) 
Bethune-Cookman College

Edward Waters College

Florida A & M University

Florida Memorial College
GEORGIA (10)
Albany State College

Atlanta University

Clark College

Fort Valley State College

640 Second Avenue 
Daytona Beach, Florida 32015
1658 Kings Road 
Jackson, Florida 32209
Tallahassee South Boulevard 
Tallahassee, Florida 32307
Miami, Florida 33054

Hazard Drive 
Albany, Georgia 31705
223 Chestnut Street, S.W. 
Atlanta, Georgia 30314
240 Chestnut Street, S.W. 
Atlanta, Georgia 30314
South Macon Street 
Fort Valley, Georgia 31030

Dr. Oswald Bronson 

Dr. Cecil Cone 

Dr. Benjamin L. Perry 

Dr. W. C. Robinson

Dr. Charles L. Hayes

Dr. Thomas D. Jarrett

Dr. Charles L. Knight 
Acting President

Dr. Cleveland Pettigrew



Interdenominational Theological 
Center

Morehouse College 

Morris Brown College 

Paine College 

Savannah State College 

Spelman College

KENTUCKY (2)
Kentucky State University

Simmons University

LOUISIANA (4)
Dillard University

*

Atlanta, Georgia 30314

223 Chestnut Street, S.W. 
Atlanta, Georgia 30314
643 Hunter Street, N.W. 
Atlanta, Georgia 31314
1235 Fifteenth Street 
Augusta, Georgia 30901
State College Branch 
Savannah, Georgia 31400
350 Leonard Street, S.W. 
Atlanta, Georgia 30314

East Main Street 
Frankfort, Kentucky 40601
1811 Dumesnell Street 
Louisville, Kentucky 40210

2601 Gentilly Boulevard 
New Orleans, Louisiana 70122

Dr. Grant S. Shockley 

Dr. Hugh M. Gloster 

Dr. Robert Threatt 

Dr. Julius S. Scott, Jr. 

Dr. Prince Jackson 

Dr. Donald Stewart

Dr. William A. Butts 

Dr. William L. Holmes

Dr. Samuel DuBois Cook



Grambling University 
Southern University (1) 
Southern University (2)

Southern University (3) 
Xavier University

MARYLAND (4)
Bowie State College

Coppin State College

Morgan State University

University of Maryland 
Eastern Shore

MICHIGAN (1)
Shaw College at Detroit

Grambling, Louisiana 71245
Baton Rouge, Louisiana 70813
6400 Press Drive
New Orleans, Louisiana 70813
Shreveport, Louisiana
7325 Palmetto Street
New Orleans, Louisiana 70125

Jericho Park Road 
Bowie, Maryland 20715
2500 West North Avenue 
Baltimore, Maryland 21216
Cole Spring Lane & Hillen Road 
Baltimore, Maryland 21212
Princess Ann, Maryland

7351 Woodward Avenue 
Detroit, Michigan 48202

Dr. Ralph W. E. Jones 
Dr. Jesse Stone

Dr. Norman Francis 

Dr. Samuel L. Myers
p

Dr. Calvin Burnett

Dr. Andrew Billingsley, Jr.

Dr. William P. Hytche 
(Chancellor)

Dr. Romallus O. Murphy



MISSISSIPPI (12)
Alcorn State University

Coahoma Jr. College

Jackson State University

Mary Holmes College

Mississippi Industrial College
Mississippi Valley State 

University
Natchez Jr. College

Prentiss Normal & Industrial 
Institute

Eust College 

Saints Jr. College 

Tougaloo College

Rural Station
Lorman, Mississippi 39096
R.I. Box 616
Clarksdale, Mississippi 38614
1325 Lynch Street 
Jackson, Mississippi 39217
Post Office Box 336
West Point, Mississippi 39773

Itta Bena, Mississippi 38941

1010 Ext. N. Union _ 
Natchez, Mississippi 39120
Prentiss, Mississippi 39474

Post Office Box 419 
Lexington, Mississippi 39095
Tougaloo, Mississippi 39175

Dr. Walter Washington

Dr. James E. Miller

Dr. John A. Peoples, Jr.

Dr. Joseph Gore

Dr. E. E. Rankin 
Dr. E. A. Boykins

Dr. McKinley K. Nelson

Mr. A. L. Johnson

Dr. W. A. McMillan

Mrs. Arenia M. King

Dr. George A. Owens

Rust Avenue
Holly Springs, Mississippi 38635

Holly Springs, Mississippi 38635



Utica, Mississippi 39175 Dr. J. Louis StokesUtica Jr. College
MISSOURI (1)
Lincoln University Jefferson City, Missouri 65101

NORTH CAROLINA (12)
Barber-Scotia College Cabarrus Avenue

Concord, North Carolina 28025
Bennett College Washington Street

Greensboro, North Carolina 27402
Elizabeth City State University Elizabeth City, North Carolina

27909
Fayetteville State University Fayetteville, North Carolina 28301

Johnson C. Smith University 100 Beattiesford Road
Charlotte, North Carolina 28208

Livingstone College 701 W. Monroe Street
Salisbury, North Carolina 28144

N. C. A&T State University 312 N. Dudley Street
Greensboro, North Carolina 27411

North Carolina Central University Fayetteville Street
Durham, North Carolina 27707

Dr. James Frank

Mrs. Mable P. McLean

Dr. Isaac H. Miller

Dr. Marion D. Thorpe 
(Chancellor)

Dr. Charles A. Lyons, Jr. 
(Chancellor)

Dr. Wilbert Greenfield

Dr. F. George Shipman

Dr. Lewis C. Dowdy 
(Chancellor)

Dr. Albert N. Whiting 
(Chancellor)



Shaw University

St. Augustine’s College

Winston-Salem State University

OHIO (2)
Central State University 
Wilberforce University

OKLAHOMA (1)
Langston University

PENNSYLVANIA (2)
Cheyney State College 
Lincoln University

SOUTH CAROLINA (8)
Allen University

118 E. South Street 
Raleigh, North Carolina 27602
1315 Oakwood Avenue 
Raleigh, North Carolina 27602
Winston-Salem, North Carolina 

27102

Wilberforce, Ohio 45384 
Wilberforce, Ohio 45384

Langston, Oklahoma 73050

Cheyney, Pennsylvania 19319 
Lincoln University, Pa. 19352

1530 Harden Street 
Columbia, South Carolina 29204

Dr. Richard L. Fields 
Acting President

Dr. Prezell R. Robinson

Dr. Kenneth R. Williams 
(Chancellor)

Dr. Lionel Newsom 
Dr. Charles E. Taylor

Dr. Thomas E. English

Dr. Wade Wilson 
Dr. Herman R. Branson

Dr. W. G. Nichols 
Interim President



Harden & Blanding Streets 
Columbia, South Carolina 29204
College Avenue
Orangeburg, South Carolina 29115 
Rock Hill, South Carolina 
Allen Street
Rock Hill, South Carolina 29732
North Main Street 
Sumter, South Carolina 29150
Orangeburg, South Carolina 29115
Denmark, South Carolina 29042

Benedict College

Claflin College

Clinton Jr. College 
Friendship Jr. College

Morris College

South Carolina State College 
Voorheos College

TENNESSEE (7)
Fisk University

Knoxville College

Lane College

LeMoyno-Owen College

17th Avenue, North 
Nashville, Tennessee 37203
901 College Street 
Knoxville, Tennessee 37921
501 Lane Avenue 
Jackson, Tennessee 38301
807 Walker Avenue 
Memphis, Tennessee 38126

Dr. Henry Ponder

Dr. H. V. Manning

Dr. Sallie Y. Moreland 
Dr. Spofford L. Evans

Dr. Luns C. Richardson

Dr. M. Maceo Nance, Jr. 
Dr. Harry Graham

Dr. Walter Leonard 

Dr. Rutherford H. Adkins 

Dr. Herman Stone 

Dr. Walter L. Walker



Dr. Lloyd 0. ElamMeharry Medical School

Morristown College 
Tennessee State University

TEXAS (9)
Bishop College

Huston-Tillotson College

Jarvis Christian College

Paul Quinn College

Prairie View A & M University 
Southwestern Christian College

Texas College

Texas Southern University

1005 - 18th Avenue, North 
Nashville, Tennessee 37208
Morristown, Tennessee 37814
3500 Centennial Boulevard 
Nashville, Tennessee 37203

3837 Simpson-Stuart Road 
Dallas, Texas 75241
1820 E. 8th Street 
Austin, Texas 78702
U. S. Highway 80 
Hawkins, Texas 75765
1020 Elm Street
Waco, Texas 76703
Prairie View, Texas 77445
Post Office Box 10 
Terrell, Texas 75160
2404 North Grand Avenue 
Tyler, Texas 75703
3201 Wheeler Avenue 
Houston, Texas 77004

Dr. Raymon E. White 
Dr. Frederick Humphries

Dr. Milton K. Curry

Dr. John T. King

Dr. E. W. Rand

Dr. Reuben D. Manning

Dr. A. I. Thomas 
Dr. Jack Evans

Dr. Allen C. Hancock

Dr. Granville Sawyer



Wiley College

VIRGINIA (6)
Hampton Institute

Norfolk State College

St. Paul’s College 
Tlie Virginia College 
Virginia State College 
Virginia Union University

711 Rosborough Spring Road 
Marshall, Texas 75670

East Queen Street 
Hampton, Virginia 23368
2401 Corprew Avenue 
Norfolk, Virginia 23504
Lawrenceville, Virginia 23868
Garfield Ave. & Dewitt Street
Petersburg, Virginia 23803
1500 N. Lombardy Street 
Richmond, Virginia 23220

Rev. Robert Hayes

Dr. Carl M. Hill

Dr. Harrison B. Wilson

Dr. James A. Russell, Jr. 
Dr. M. C. Southerland 
Dr. Thomas Law 
Dr. AllixB. James

11a



12a

APPENDIX "B"

T able I.*

E xtent of E lementary S chool Segregation in  75 S chool S ystems 
(Only California S chools Cited)

Percentage of 
Negroes in 

90 to 100 Percent 
Negro Schools

Percentage of 
Negroes in 
Majority 

Negro Schools

Percentage of 
Whites in 

90 to 100 Percent 
White Schools

Los Angeles, California 39.5 87.5 94.7

Oakland, California 48.7 83.2 50.2

Pasadena, California None 71.4 82.1

Richmond, California 39.2 82.9 90.1

San Diego, California 13.9 73.3 88.7

San Francisco, California 21.1 72.3 65.1

* Data based upon Report of the United States Commission On Civil Rights (1967) Ra- 
cial Isolation in the Public Schools.



APPENDIX "C"

F or P ress Conference to Announce: M inorities in M edicine: From  R eceptive P a ss iv ity  to P ositive
Action, 1966-1976 by Charles E. Odegaard, Ph.D.

W aldorf-Astoria Hotel 
Duke of W indsor Room 
301 Park  Avenue 
New York City
May 9, 1977 Table 1
S elected Minority Group E nrollment in  F irst-Year Classes in  U.S. Medical S chools (1968-1976)

Black American Mexican Mainland Total Selected Total First-Year
American * Indian American Puerto Rican Minority Group Enrollment

Number
Enrolled

% of 
Total 

Enroll­
ment

Number
Enrolled

%of
Total

Enroll­
ment

Number
Enrolled

%of
Total

Enroll­
ment

Number
Enrolled

% of 
Total 

Enroll­
ment

Number
Enrolled

% of 
Total 

Enroll­
ment

1968-69 266 2.7 3 0.03 20 0.2 3 0.03 292 2.9 9,863
1969-70 440 4.2 7 0.1 44 0.4 10 0.1 501 4.8 10,422
1970-71 697 6.1 11 0.1 73 0.6 27 0.2 808 7.1 11,348
1971-72 882 7.1 23 0.2 118 1.0 40 0.3 1,063 8.5 12,361
1972-73 957 7.0 34 0.3 137 1.0 44 0.3 1,172 8.6 13,677
1973-74 1,023 7.5 44 0.3 174 1.2 56 0.4 1,297 9.1 14,124
1974-75 1,106 7.5 71 0.5 227 1.5 69 0.5 1,473 10.1 14,763
1975-76 1,036 6.8 60 0.4 224 1.5 71 0.5 1,391 9.1 15,295
1976-77 1,040 6.7 43 0.3 245 1.6 72 0.5 1,400 9.0 15,613

* Blaek Americans at Howard and Meharry medical schools accounted for 120 of these 1969-70 freshmen and 195 of these 1974- 
75 freshmen.

Source: AAMC enrollment data.



14a

For Press Conference to Announce: Minorities in Medicine: From
Receptive Passivity to Positive 
Action, 1966-76 by Charles E. 

Waldorf-Astoria Hotel Odegaard, Ph.D.
Duke of Windsor Room 
301 Park Avenue 
New York City
May 9, 1977 Table 2

A pplicants to F irst-Year Classes in  U.S. Medical S chools
(1970-76)

Black
American

American
Indian

Mexican
American

Mainland Total Number of 
Puerto Minority Group 
Rican Applicants

Total Number 
of

Applicants
1970-71 1,250 24,987
1971-72 1,552 29,172 m
1972-73 2,382 36,135 W

*1973-74 2,227 240 349 233 3,049 40,506
1974-75 2,368 131 437 170 3,106 42,624
1975-76 2,286 128 434 204 3,052 42,303
1976-77 2,486 123 452 209 3,270 42,155

r
* Data for American Indians, Mexican Americans, and Mainland Puerto Ricans was not 

collected prior to 1973.
Source: AAHG and T h e  J o u r n a l  o f  T h e  A m e r ic a n  M e d ic a l A s s o c ia tio n , December 27, 

1976, Volume 236, No. 26, Index Issue, p. 2961, Table 8.



15a

For Press Conference to Announce: Minorities in Medicine: 
From  Receptive Passivity to Positive Action, 1966-76 
by Charles E. Odegaard, Ph.D.

Waldorf-Astoria Hotel 
Duke of Windsor Room 
301 Park Avenue 
New York City 
May 9, 1977

T able 3
P ercent o r A pplicants A ccepted to Medical S chool 

por Selected Y ears

% of All Students % of Black Students 
Accepted Accepted

1971-72 42.3 52.2
1972-73 38.1 36.0
1975-76 36.3 41.3
1976-77 37.4 39.1

Source: AAMC (data for American Indians, Mexican Americans, and Main­
land Puerto Ricans was not available at the time this was obtained)

Table 15.—S tudents R epeating the A cademic Y ear 
1975-1976

First-Year Class All Other Classes

Repeating Repeating
Enrolled Enrolled

Total No. % Total No. %
Afro-American 1,052 159 15.1 3,436 140 5.7
American Indian 61 4 6.6 115 6 5.2
Mexican American 228 21 9.2 490 26 5.3
Puerto Rican 

(mainland) 78 8 10.3 135 9 6.7
All other 

students 13,808 157 1.1 37,406 262 0.7



T able 24.—S tudents A dmitted 1973-1974 T hbough 1975-1976 
and S till in  Medical S chool or Graduated J une  1976

Retained Retained Retained
June 1975 June 1976 June 1976

Admitted Admitted Admitted
1973-1974 No. % 1974-75 No. % 1975-1976 No. %

Afro-American 935 817 87 1,001 919 92 905 854 94
American Indian 38 34 89 67 58 87 57 54 95
Mexican American 174 153 88 209 200 96 194 188 97
Puerto Rican 

(mainland) 51 50 98 65 62 95 72 69 96
All other students 12,633 12,272 97 13,211 12,988 98 13,776 13,538 98



17a

T able TV.—R atio of MedM AR (1976) in  S tate to 
Minobitt P opulation (1970 Census) in  T hat State

Rank State
(a)

Minority Population
0>)#  in MedMAR

b/a
X  105

1 New Mexico 210,356 61 29.0
2 Massachusetts 204,732 46 22.5
3 District of Columbia 540,823 121 22.4
4 Colorado 179,359 37 20.6
5 Hawaii 20,377 4 19.7
6 Minnesota 68,130 13 19.1
7 Maine* 5,416 1 18.5
8 Michigan 1,078,206 189 17.5
9 Tennessee 625,596 103 16.5
10 Maryland 714,185 116 16.2
11 Utah 32,084 5 15.6
12 Montana* 32,262 5 15.5
13 Nevada 45,257 7 15.5
14 Nebraska 58,951 9 15.3
15 Connecticut 223,229 32 14.3
16 Oklahoma 283,254 39 13.8
17 Pennsylvania 1,075,967 145 13.5
18 New Jersey 918,739 122 13.3
19 New York 3,128,673 401 12.8
20 Illinois 1,680,533 211 12.6
21 California 3,394,957 425 12.5
22 Missouri 500,358 61 12,2
23 Oregon 51,209 6 11.7
24 Iowa 43,371 5 11.5



18a

25 Kansas 144,262 16 11.1
26 Wisconsin 172,420 19 11.0
27 Ohio 1,023,378 109 10.7
28 Mississippi 820,861 87 10.6
29 North Carolina 1,177,655 123 10.4
30 West Virginia 68,446 7 10.2
31 Texas 3,038,923 310 10.2
32 Alabama 907,592 92 10.1
33 Virginia 875,215 86 9.8
34 Indiana 398,987 38 9.5
35 Louisiana 1,099,469 98 8.9
36 Georgia 1,195,798 106 8.9
37 South Carolina 794,446 69 8.7
38 Delaware* 81,886 7 8.5
39 Florida 1,097,393 86 7.8
40 Arizona 387,966 29 7.5



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