Bakke v. Regents Brief for Petitioner

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Brief Collection, LDF Court Filings. Bakke v. Regents Brief for Petitioner, 1977. 0406c147-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d7c2caf7-7711-4918-b444-556c775d513c/bakke-v-regents-brief-for-petitioner. Accessed November 01, 2025.

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JAMES M. NABRIT, III
ASSOCIATE-COUNSEL

I n the

Supreme Court of the United States
Ogtobee Term 1977

No. 76-811

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

vs.

Allan B akke,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA

BRIEF FOR PETITIONER

P aul J . Mish k in
Boalt Hall
Berkeley, CA 94720

J ack B. Owens
600 Montgomery Street
San Francisco, CA 94111

D onald L . R eidhaar
590 University Hall
Berkeley, CA 94720

Counsel for Petitioner

A rchibald Cox

Of Counsel on the Brief

S O R O P R IN T IN G C O M PA N Y O F C A L IF O R N IA , 3 4 6 F IR S T ST R E E T , SA N F R A N C IS C O 9 4 1 0 5

SUBJECT INDEX
Page

Opinions Below................ -........ -.................................. 1

Jurisdiction ...................................................... -........... 1

Question Presented........................................................ 2

Constitutional Provision Involved............-................ ... 2

Statement ..... ........... .......... .............-........-.................- 2

Summary of Argument...................-......-.......-.............. 8

Argument ............................................ -.............-.......... 13

Introductory...................... -................ ---.....- ........ 13

I. The Legacy of Pervasive Bacial Discrimination in
Education, Medicine and Beyond Burdens Discrete
and Insular Minorities, as Well as the Larger
Society. The Effects of Such Discrimination Can
Not Be Undone by Mere Reliance on Formulas of
Formal Equality. Having Witnessed the Failure
of Such Formulas, Responsible, Educational and
Professional Authorities Have Recognized the
Necessity of Employing Raeially-Conscious Means
to Achieve True Educational Opportunity and the
Benefits of a Racially Diverse Student Body and
Profession ......... -....................................— ........ - ^
A. The Legacy of Discrimination Continues to

Burden and to Obstruct the Advancement of
Discrete and Insular Racial Minorities..... . 17
1. The delay in implementing Brown v.

Board of Education is but one of the ele
ments of the experience of growing up as a
member of racial minority in this country.. 17

11 S ubject I ndex

Page
2. The most significant fact about doctors

from minority groups is that they are so
few, and the most significant fact about
health care for such groups is that it is
scarce and inferior....... .......................... — 21

B. Until the Advent of Special-Admissions Pro
grams, Medical Schools, Except for Two
Traditionally Black, Were White Islands in a
Multi-Racial Society.......... ...............- -....—- 26
1. Formal barriers against minority partici

pation in medical schools did not fall until
very recently and, by itself, the elimination
of those restraints did not produce racial
diversity. Indeed, mere reliance on for
mulas of formal equality raised the threat
of retrogression, rather than the prospect
of progress —............................................. 26

2. Despite the persistence of discrimination,
a pool of fully qualified minority appli
cants existed by the late 1960’s, but the
steep rise in demand for medical school
admission, coupled with the sharp in
crease in the numerical credentials of
those admitted, continued to exclude mi
norities --------------------........ -.............—- 2S

C. Special-Admissions Programs Are Intended
to Further Goals Universally Recognized As
Compelling. The Investment of Effort in Such
Programs in Professional Schools Has Been
Nationwide, and Reflects a Nationwide Recog
nition, Shared by This Court, That the Endur
ing Effects of Racial Discrimination Cannot

S ubject I ndex iii

Page
Be Countered by Mere Abolition of Formal
Barriers ............... .......................................... 32

D. Furtherance of the Goals of the Davis Pro
gram and Its Counterparts Nationwide
Unavoidably Requires the Use of Racially-
Conscious Means ____ ___ _____ ______ ___ 35

An Admissions Program Adopted Voluntarily by a
State Medical School to Counter the Effects of
Pervasive Discrimination and to Secure the Educa
tional Benefits of Racial and Ethnic Diversity in a
Student Body Accords with the Equal Protection
Clause __________-__ ____________________ 44
A. A State’s Use of Racial Criteria, Even for a

Remedial Purpose, Is Undeniably a Cause for
Concern. However, An Accurate Assessment,
Rather Than an Exaggeration, of the Basis for
Concern Is In Order. Furthermore, Identify
ing the Real Basis for Concern Represents the
Beginning, Not the End, of the Appropriate
Inquiry ................................. ................. ........ 44
1. The Davis Program Does Not Resurrect

the Insidious Quotas of Another Era. It
Sets a Goal Not a Quota; There Is Noth
ing of Constitutional Significance in the
Use of a Number to Define the Goal...... 44

2. The Relevant Concern in the Utilization
of Racial Criteria for Remedial Purposes
in Admissions Is Not the Infliction of Any
Slur or Stigma or the Infringement of
Any Right to Admission on the Basis of
Relative Merit, However Defined..... ...... 48

IV Subject I ndex

Page
3. The Relevant Basis for Concern Is a Po

tential for the Arousal of Racial Aware
ness. Identifying that Concern Repre
sents the Beginning, Not the End, of the
Requisite Analysis ................................... 57

B. The Decisions of This Court and Other Courts
Sustaining the Use of Racial Criteria to
Enhance Racial Diversity in Schools and to
Counter the Effects of Discrimination Estab
lish That the Arousal of Racial Awareness
Inevitably Produced by Special-Admissions
Programs Does Not Render Them Invalid..... 61

C. The Standard of Strict Judicial Scrutiny Is
Inapplicable in This Case ............................- 68

D. Regardless of the Weight of the Burden of
Justification, the Davis Program Does Not
Contravene the Equal Protection Clause ....... 74
1. The Means Chosen by the Medical School

Are Rationally Related to the Desired
Ends, and Under This Court’s Precedents
the Challenged Program Is Therefore
Constitutional .......................................... 74

2. If Use of Racial Criteria In a Remedial
Context Triggers an Intermediate Stand
ard of Review, the Davis Program
Meets Such a Standard ........................... 77

3. Measured Against the Standard of Strict
Judicial Scrutiny, the Davis Program Is
Constitutional ............................................ 79

Conclusion ................................... ................................. 86

CITATIONS

Cases:
Pages

A levy v. Downstate Medical Center, 39 N.Y.2d 326,
334-35, 348 N.E.2d 537, 544-45, 384 N.Y.S.2d 82, 89
(1976)........................ .....................................64, 72, 77, 79

American Party of Texas v. White, 415 U.S. 767
(1974)........................................................................ 85

Anderson v. Martin, 375 U.S. 399 (1964) .....................61, 78
Associated General Contractors of Massachusetts, Inc.

v. Altshuler, 490 F.2d 9 (CA 1, 1973), cert, denied
416 U.S. 957 (1974) ............................. ...... ............... 67

Balaban v. Rubin, 14 N.Y.2d 193, 199 N.E.2d 375, 250
N.Y.S.2d 281, cert, denied 379 U.S. 881 (1964).......... 64

Berea College v. Kentucky, 211 U.S. 45 (1908)............ 86
Bolling v. Sharpe, 347 U.S. 497 (1954) ........................ 20
Booker v. Board of Education, 45 N.J. 161, 212 A.2d

1 (1965) .................................... ............................... 64
Brooks v. Beto, 366 F.2d 1, 24 (CA5 1966) ................. 68
Brown v. Board of Education, 347 U.S. 483 (1954)....passim
Bullock v. Carter, 405 U.S. 134 (1972) .................... . 85

Califano v. Goldfarb, 97 S.Ct. 1021 (1977)................... 72
Califano v. Webster, 97 S.Ct. 1192 (1977)......... ......... 77, 84
Carr v. Montgomery County Board of Education, 289

F.Supp. 647 (M.D.Ala. 1968), aff’d sub nom. United
States v. Montgomery County Board of Ed., 395
U.S. 225 (1969)............ - ............................... ........... . 66

Carter v. Gallagher, 452 F.2d 315 (CA8) (en banc),
cert, denied 406 U.S. 950 (1972)................................ 67

Contractors Association of Eastern Pennsylvania v.
Secretary of Labor, 442 F.2d 159 (CA3 1971), cert.
denied 404 U.S. 854 (1971)___ ____________ ____ 67

Craig v. Boren, 97 S.Ct. 451 (1976)............. ................ 77
Crawford v. Board of Education of the City of Los

Angeles, 17 C.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28
(1976) 18

VI Citations
Pages

Davis v. Board of School Commissioners, 402 U.S. 33
(1971) ........ ................. .................... ........................62, 66

DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169
(1973), vacated as moot, 416 U.S. 312 (1974).......... 64

DeFunis v. Odegaard, 416 U.S. 312 (1974).... .............. 46
Dunn v. Blumstein, 405 U.S. 330 (1972)................. 80,81,82

Edwards v. California, 314 U.S. 160 (1941)..---- ------- 59

Franks v. Bowman Transportation Co. Ine., 96 S.Ct.
1251 (1976)................................................................61, 66

Fuller v. Volk, 250 F.Supp. 81 (D.N.J. 1966)............... 64

G-ermann v. Kipp, 14 Fair Empl. Prac. Cas. 1197
(W.D.Mo. 1977)........ ...................... ........................ 77

Gibson v. Board of Public Instruction of Dade County,
Florida, 272 F.2d 763 (CA5 1959)........ ......... ......... 21

Green v. County School Board, 391 U.S. 430 (1968).... 35
In re Griffiths, 413 U.S. 717 (1973)............................... 81
Guinn v. United States, 238 U.S. 347 (1915)............... 40

Hernandez v. Texas, 347 U.S. 475 (1954)---- ------- ---- 20
Ilirabayashi v. United States, 320 U.S. 81 (1943)...... 68, 69
Hughes v. Superior Court, 339 U.S. 460 (1950) ........ 47
Hunter v. Erickson, 393 U.S. 385 (1969)............. ....... 72

Katzenbach v. Morgan, 384 U.S. 641 (1966)............... 75
Keyes v. School District No. 1, 413 U.S. 189 (1973)....62, 65
Kirkland v. Department of Correctional Services, 520

F.2d 420, reh. en banc denied, 531 F.2d 5 (CA2
1975), cert, denied 97 S.Ct. 73 (1976)------ ---- ---- - 57

Korematsu v. United States, 323 U.S. 214 (1944)...... 68, 69

Lau v. Nichols, 414 U.S. 563 (1974)....... ...................... 75
Local 53 of International Ass’n of Heat & Frost I. &

A. Workers v. Vogler, 407 F.2d 1047 (CA 5 1969).... 67
Lochner v. New York, 198 U.S. 45 (1905).................. 85
Loving v. Virginia, 388 U.S. 1 (1967)..... ......... 48, 49, 69, 70,

72,73, 80

Citations vii
Pages

Lubin v. Panish, 415 U.S. 709 (1974)............................81,85

Morean v. Board of Education, 42 N.J. 237, 200 A.2d
97 (1964)................................... 64

Morton v. Maneari, 417 U.S. 535 (1974)...... 20,53, 55, 75, 84
McDaniel v. Barresi, 402 U.S. 39 (1971)...................... 36, 61
McDonald v. Santa Pe Trail Transportation Co., 427

U.S. 273 (1976).......................................................... 78
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) 16
McGowan v. Maryland, 366 U.S. 420 (1961)................. 74, 75
McLaughlin v. Florida, 379 U.S. 184 (1964)..........58, 69, 70,

80, 81, 84

NAACP v. Allen, 493 F.2d 614 (CA5 1974) ............. 67
North Carolina State Board of Education v. Swann,

402 U.S. 43 (1971)................. ............................... 35, 61,63

Offermann v. Nitkowski, 378 F.2d 22 (CA2 1967) ...... 63
Oyama v. California, 332 U.S. 633 (1948) ........ .....20, 69

Patterson v. American Tobacco Company, 535 F.2d
257 (CA4), cert, denied, 97 S.Ct. 314 (1976) .......... 67

Plessy v. Ferguson, 163 U.S. 537 (1896) .....................69, 70
Porcelli v. Titus, 431 F.2d 1254 (CA3 1970), cert,

denied 402 U.S. 944 (1971) ............. ..................... 66

Bios v. Enterprise Association Steamfitters Local 638
of U.A., 501 F.2d 622 (CA2 1974) ............... ........ 67

Bosenstock v. Board of Governors, 423 F.Supp. 1321
(M.D.N.C. 1976) _______ ________ _____ _____ 64

San Antonio Independent School District v. Bodriguez,
411 U.S. 1 (1973) ............................... 38, 56, 71, 74, 75, 76

School Committee v. Board of Education, 352 Mass.
693, 227 N.E.2d 729 (1967), appeal dismissed 389
U.S. 572 (1968) .............. -......................

Shapiro v. Thompson, 394 U.S. 618 (1969)
64
19

CitationsV l l l

Pages
Shelton v. Tucker, 364 TT.S. 479 (1960) ..................... 81
Soria v. Oxnard School District, 386 F. Supp. 539

(C.D. Cal. 1974) ..................................................... 18
Southern Illinois Builders Association v. Ogilvie, 471

F.2d 680 (CA7 1972) .............................................. 67
Spangler v. Pasadena City Board of Education, 311

F. Supp. 501 (C.D. Cal.' 1970) ............................... 18
Springfield School Committee v. Barksdale, 348 F.2d

261 (CA1 1965) ....................................................... 63
State ex rel Citizens Against Mandatory Bussing v.

Brooks, 80 Wash.2d 121, 492 P.2d 536 (1972) ........ 64
Storer v. Brown, 415 U.S. 724 (1974)...... ..............82,84, 85
Sugarman v. Dougall, 413 U.S. 634 (1973) ............... 81
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) .....................................18, 63, 65, 66, 84
Sweezy v. New Hampshire, 354 U.S. 234 (1957).......... 76

Tancil v. Woolls, 379 U.S. 19 (1964) ................. ....... 78
Tometz v. Board of Education, 39 I11.2d 593, 237

N.E.2d 498 (1968) ............................................... 64

United Jewish Organizations of Williamsburgh, Inc.
v. Carey, 97 S.Ct. 996 (1977)....54, 55, 61, 63, 70, 75,77, 84

United States v. Carolene Products Co., 304 U.S.
144 (1938) ................................................................ 68

United States v. International Brotherhood of Electri
cal Workers, Local No. 38, 428 F.2d 144 (CA6 1970),
cert, denied 400 U.S. 943 (1970) .............................. 67

United States v. Ironworkers Local 86, 443 F.2d 544
(CA9 1971), cert, denied 404 U.S. 984 (1971) .......... 67

United States v. Montgomery County Board of Educa
tion, 395 U.S. 225 (1969) .................................. 61,62,66

United States v. N. L. Industries, Inc., 479 F.2d 354
(CA8 1973) .............................................................. 67

Vulcan Society v. Civil Service Commission, 490 F.2d
387 (CA2 1973) .....................................................40,67

Citations ix

Pages
Wanner v. County School Board, 357 F.2d 452 (CA4

1966) ........................ ......................... -..................... 63
Weinberger v. Wiesenfield, 420 U.S. 636 (1975) ..... . 77

Constitutions :

United States Constitution
Fourteenth Amendment, ....... passim

California Constitution
Article IX, Section 9 ................................................. 75

Statutes :
28 U.S.C. § 1257(3) ...................................................... 1
42 U.S.C. § 2000(e), et seq............................................ 67

E xecutive Order:
Executive Order 11246, 30 F.R. 12319, as amended,

32 F.R. 14303, 34 F.R. 12985 .................—- -.......... 67
M iscellaneous :

AMA News, April 8,1968, p. 8 ......................... -.......... 23
Applewhite, Blacks in Public Health, 66 J.N.M.A. 505

(1974) -........................................... 23
Association of American Medical Colleges: Proceed

ings for 1968,44 J .M ed.E duc. 349 (1969)................. 34

Bickel, The Original Understanding and the Segrega
tion Decision, 69 H arv.L.Rev. 1 (1955) ................... 73

Brest, Foreword: In Defense of the Antidiscrimina
tion Principle, 90 H arv.L.Rev. 1 (1976) ................. 19

T he Carnegie Commission on H igher E ducation, A
Chance to L earn (1970) ...................-.................. 13

Crowley & Nicholson, Negro Enrollment in Medical
Schools, 210 J.A.M.A. 96 (1969).......... -.................. - 27

Cnea, Sakakeeny & Johnson, T he Medical School Ad
missions P rocess : A R eview oe the L iterature 1955-
76 (1976) ....-........................................ 29> 30> 50>51

X Citations
Pages

Curtis, Blacks, Medical S chools and S ociety (1971)-26, 27

Datagram: Ethnic Group' Members on U.S. Medical
Faculties, 51 J.M ed.E duc. 69 (1976) ..............-............. 22

Dove, Minority Enrollment in U.S. Medical Schools,
1969-70 Compared to 1968-69, 45 J.M ed.E duc. (1970) 28

Dube & Johnson, Medical School Applicants, 1973-74
(AAMC 1976) .................................................................... 29

Elesh and SchoUaert, Race and Urban Medicine: Fac
tors Affecting the Distribution of Physicians in
Chicago, 13 J. H ealth & Soc. BEH. (1972) ............ 26

Ely, The Constitutionality of Reverse Racial Discrimi
nation, 41 U .C h i .L.Rev. 723 (1974) ............... -....... 73

Freund, Constitutional Dilemmas, 45 B.U.L.Rev. 13
(1965) ....... -.............-......................................-.....—70, 86

Gordon, Descriptive Study of Medical School Appli
cants, 1975-76 (AAMC 1977) ...................................29,36

Greenawalt, Judicial Scrutiny of ‘‘Benign” Racial
Preference in Law School Admissions, 75 Col.L.
R ev. 559 (1975) ....................................................----- 56

Gunther, Foreword: In Search of Evolving Doctrine
on a Changing Court: A Model for a Newer Equal
Protection, 86 H arv.L.Rev. 1 (1972) ........................ 85

Hamilton, Graduate S chool P rograms for M inority/
D isadvantaged S tudents (1973) ............-............... 41

Haynes, Distribution of Black Physicians in the United
States, 210 J.A.M.A. 93 (1969)................................. 22

Hutchins, Reitman, & Klaub, Minorities, Manpower
and Medicine, 42 J.M ed.Educ. 809 (1967) ..............27, 28

Jenkins, The Howard Professional School in a New
Social Perspective, 62 J.N.M.A. 167 (1970).............— 25

Johnson, History of the Education of Negro Physi
cians, 42 J.M ed.E duc. 439 (1967)................................... 22

Citations xi

Pages
Johnson, Smith & Tarnoff, Recruitment and Progress

of Minority Medical School Entrants 1970-72, 50
J.M ed.Educ. 713 (1975) ....................................29,31,45

Kaplan, Equal Justice in an Unequal World, 61 Nw.L.
Rev. 363 (1966) ..................................................... 59

Kerckhoff & Campbell, Race and Social Status Differ
ences in the Explanation of Educational Ambition,
55 J .S oc.F orces 701 (1977)........................ -............. 37

Lieberson, Ethnic Groups and the Practice of Medi
cine, 23 A m. Soc. R ev. 542 (1958).............................. 25

Mantovani, T. Gordon & D. Johnson, Medical School
Indebtedness and Career Plans 1974-75 (DHEW)
Pub.No. (HRA) 1976)....................... -..................... 26

Medical Education in the United States, 1966-67, 202
J.A.M.A. 753 (1967)................................................. 29

Medical Education in the United States, 1975-76, 236
J.A.M.A. 2949 (1976)............................................... 29

Melton, Health Manpower and Negro Health: The
Negro Physician, 43 J.M ed.E duc. 798 (1968)........... 22

Mexican- A mertcan P opulation Commission of Cali
fornia, Mexican-American P opulation in Califor
nia A pril, 1973 (1973)....................................... - .... 2

The New York Times, June 6, 1974 ............................ 23

C. Odegaard, M inorities in Medicine : F rom R ecep
tive P assivity to P ositive A ction 1966-76 (1977)

20, 23, 27, 30, 34, 37, 40, 48, 58

Raup & Williams, Negro Students in Medical Schools
in the United States, 39 J.M ed.Educ. 444 (1964)..... 26

Redish, Preferential Law School Admissions and the
Equal Protection Clause, 22 U.C.L.A.L.Rev. 343
(1974) ............................-.......-......... 72

Reitzes, N egroes and Medicine (1958) .................... 26

Citationsxii
Pages

Report of Task Force of Association of American
Medical Colleges to Inter-Association Committee
on Expanding Educational Opportunities in Medi
cine for Blacks and Other Minority Students (April
22, 1970) ................................................................... 3,34

Sandalow, Racial Preferences in Higher Education:
Political Responsibility and the Judicial Role, 42
TX.Ch i.L.Rev. 653 (1975) ................................................. 70

Seham, B lacks and A merican Medical Case

(1973) ............... 22 ,24,26
Simon and Coveil, Performance of Medical Students

Admitted Via Regular and Admissions-Variance
Routes, 50 J.M ed.Edtic. 237 (1975) ........................ 31

Sowell, New Light on Black I.Q., The New York Times
Magazine, March 27, 1977 ....................................... 43

Thompson, Curbing the Black Physician Manpower
Shortage, 49 J.M ed.Edttc. 944 (1974) ...................... 23

U.S. Bureau of the Census, Department of Commerce,
U nited S tates Census of P opulation : 1970........2,19, 37

39,83
U.S. Bureau of Health Manpower, Department of

Health, Education, and Welfare, Pub. No. (HRA)
76-22, Minorities and Women in the Health Fields:
Applicants, Students and Workers (1975) .............. 23,36

Waldman, E conomic and R acial D isadvantage as
R eflected in T raditional Medical S chool Selec
tion F actors: A S tudy of 1976 A pplicants to U.S.
Medical S chools. (AAMC 1977) ............................29, 38

Wechsler, Toward Neutral Principles of Constitu
tional Law, 73 H arv.L.Rev. 1 (1959) ..... ................... 71

Wollenberg, A ll Deliberate Speed : Segregation and
E xclusion in California’s S chools, 1855-1975
(1976) 18

I k the

Supreme Court of tf)t Zintteb States;
Octobee T erm 1977

No. 76-811

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

vs.

A llan B akke,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF CALIFORNIA

B rief for Petitioner

OPINIONS BELOW
The opinion of the California Supreme Court is reported

at 18 C.3d 34,132 Cal. Rptr. 680, 553 P.2d 1152.

JURISDICTION
The California Supreme Court denied the University’s

petition for rehearing on Oetober 28, 1976 (R.494).1 The
petition for a writ of certiorari was filed on December 14,
1976 and was granted on February 22, 1977. 97 S.Ct. 1098.
The jurisdiction of this Court rests on 28 U.S.C. § 1257(3).

1. “R” references are to the record filed in this Court.

2
QUESTION PRESENTED

When only a small fraction of thousands of applicants
can be admitted, does the Equal Protection Clause forbid
a state university professional school from voluntarily
seeking to counteract effects of generations of pervasive
discrimination against discrete and insular minorities by
establishing a limited special admissions program that in
creases opportunities for well-qualified members of such
racial and ethnic minorities ?

CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States Con

stitution provides in pertinent part: . nor shall any State
. . . deny to any person within its jurisdiction the equal
protection of the laws.”

STATEMENT
The medical school of the University of California at

Davis opened in 1968, adding 50 to the total number of
places in the nation’s medical schools. In short order the
faculty realized (as have the faculties of most medical and
law schools in this country over the past decade) that
existing admissions criteria failed to allow access for any
significant number of minority students (R. 15, 57-58, 67,
85-86). Racial and ethnic minorities at that time comprised
over 23% of the population of California (including about
7% blacks and at least 14% Mexican Americans).2 The
entering class of 1968 at Davis contained no blacks, no
Chicanos, three Asians, and no American Indians (R. 216,
282).

2. These figures are estimates based upon the results of the 1970
census, as adjusted. U.S. Bureau of the Census, Department of
Commerce, Pub. No. PC(1)-D6, U nited S tates Cen su s oe P opu
lation : 1970. Detailed Characteristics, California, Section 1, Table
139 (1973); Mexican-American Population Commission of Califor
nia, Mexica n-Am erican P opulation in Ca lieo r n ia : April 1973
at 8. (1973).

3
In the two years that followed, the medical school faculty

fashioned and implemented a special admissions “Task
Force” program3 to compensate for the effects of societal
discrimination on historically disadvantaged racial and
ethnic minorities (R. 67, 159-60). Among the objectives of
this program were enhanced diversity in the student body
and the profession, improved medical care in underserved
minority communities, elimination of historic barriers to
medical careers for disadvantaged members of racial and
ethnic minority groups, and increased aspiration for such
careers on the part of minority students (R. 67-68). It was
the judgment of the Davis faculty that the Task Force
program was the “only method” that would achieve signifi
cant enrollment of minority applicants (R. 67-68).

The program has led to entering classes at Davis of sub
stantially greater racial and ethnic diversity than in 1968.
From 1970, the first year of operation of the program,
until 1973 and 1974, the years at issue in this case, minority
students were admitted as follows:

Task Force Program General Admissions Total
Blacks Chicanos Asians Total Blacks Chicanos Asians Total Minorities

1 9 7 0 4 . . . 5 3 0 8 0 0 4 4 12

1971 ... . . . 4 9 2 15 1 0 8 9 2 4

1 9 7 2 ... . . . 5 6 S 16 0 0 11 11 27
1973 ...... 6 8 2 16 0 2 13 15 31

1 9 7 4 ...... 6 7 2 15 0 4 5 9 245

8. The “Task Force” program at Davis was part of a nation-
wide effort in which a prominent role was played by a Task Force
of the Association of American Medical Colleges; see the Report of
that Task Force to the Inter-Association Committee on Expanding
Educational Opportunities in Medicine for Blacks and Other Mi
nority Students (April 22, 1970).

4. The entering class of 1970 consisted of a total of 52 students;
the total class was increased the following year to 100, the level at
which it has remained (R. 215; 282).

5. The data appearing in this table are at R. 216-18. The record
indicates that there were 16 Task Force admittees in 1974. Ibid.

4
Under the general admissions procedure at Davis, grade-

point averages and scores on the Medical College Admis
sions Test (“MCAT”) are of major importance, but they
are not determinative. Individual attributes unrelated to
formal credentials are given weight, as are factors of
importance to the profession, such as whether the applicant
originates from and may be likely to return to an area
where health care services are in short supply (R. 64-65,
180, 183). Applicants must submit, in addition to college
transcripts and MCAT scores, a description of extracur
ricular and community activities, a history of work experi
ence, personal comments regarding reasons for wanting to
attend medical school, and letters of recommendation (R.
62, 197-200, 231-40, 282). Because the number of applicants
annually far outstrips the number of available places (e.g.,
by ratios of 25 and 37 to 1 for 1973 and 1974) and because
admissions is an arduous and time-consuming process, ap
plicants with undergraduate grade-point averages below
an arbitrarily picked figure are summarily rejected (R. 63,
205, 219, 282). Of the remaining applicants, those whose
files reflect particular promise are granted personal inter
views with members of the admissions committee (R. 62-
63).

The person conducting an interview prepares a summary
of the meeting and then assigns the applicant a score of
0 to 100. The score given takes into account many factors
The Brief of Amici Curiae in opposition to certiorari in this case
pointed out, at p. 23 n.12, that in that year there were only 15
Task Force admittees. In its Reply to that Brief of Amici, the Uni
versity acknowledged this to be a fact. In 1974, one Task Force
admittee withdrew before the start of classes and, despite the exist
ence of a Task Force waiting list, admission was then granted to a
non-minority applicant from the regular admissions process. The
reduction of Task Force admittees in 1974 from 16 to 15 occurred
after the close of discovery in this case and did not become known
to counsel until recently. See Reply to Brief of Amici Curiae in
Opposition to Certiorari, p. 5, n.4.

relating to the applicant, including formal credentials,
letters of recommendation, demonstration of motivation,
character and imagination, the type and locale of the appli
cant’s anticipated practice, whether the applicant is likely
to add diversity or make a special contribution to the
student body, and the interviewer’s assessment of the appli
cant’s potential in medicine. .After the interview, other
members of the admissions committee review tire file, includ
ing the interview summary (but minus the score assigned
by the interviewer), and assign their own scores. The
grades of individual interviewers and reviewers are then
cumulated into a total or “benchmark” number. Benchmarks
are used as the primary but not wholly controlling basis
for final decisions on admission (E. 63-65,156-58,180).

Applicants to the Task Force program submit the same
materials as applicants for general admission (E. 161, 169,
197-200, 282). Final selection of Task Force applicants, as
of applicants for general admission, is made by the full
admissions committee (E. 166). However, as to those stu
dents, the full committee acts on the recommendations of a
Task Force subcommittee, which has the responsibility for
processing Task Force applicants (E. 65-67). In practice
only disadvantaged members of racial and ethnic minority
groups are admitted under the Task Force program (E.
171). The materials submitted by minority applicants to
the Task Force program are screened to determine if those
applicants are disadvantaged, and those who are not are
referred to the general admissions process (E. 65-66, 170).
The files of the disadvantaged minority applicants are
further screened in order to select those to be invited for
a personal interview (B, 66). In the years at issue in this
litigation, the Task Force program selected for interviews
and further consideration some candidates who had grade-

6
point averages below the cut-off figure employed in the
general admissions process (E. 175). The ensuing interview
ing and rating procedures parallel those employed in gen
eral admissions (E. 66,164).

All students admitted are fully qualified to meet the
requirements of a medical education at Davis (E. 67). In
1973 and in 1974, 16 and 15 students, respectively, out of
an entering class of 100 were admitted pursuant to the Task
Force program (E. 67, 221, 282).6 The Task Force goal set
by the faculty for those years was 16 students (E. 164-66).
The students admitted pursuant to the program were
chosen from a pool of minority applicants more than ten
times the size of the group that could be offered admission,
let alone the smaller number that could actually be enrolled
(E. 205, 219, 282).

Eespondent applied for admission to the medical school
for the entering classes of 1973 and 1974 (E. 69). His was
one of 2,464 applications for admission for 1973 (E. 205,
282), and one of 3,737 applications for 1974 (E. 219, 282).
Eespondent was a highly rated applicant who came very
close to admission (E. 254, 308; Pet. App. 108a). He applied
under the general admissions program in both years, and in
both years he was granted an interview (E. 69). Students
admitted on recommendation of the Task Force subcom
mittee in 1973 and 1974 often had MCAT test scores, grade-
point averages, and benchmark ratings lower than respond
ent (E. 175-82).

Following his second rejection, respondent brought suit
in state court against the Eegents of the University of
California (the University). The trial court upheld respond
ent’s claim that the challenged program discriminated

6. See note 5, supra.

7
against white applicants on the basis of race and therefore
violated the Equal Protection Clause (Pet. App. F, p. 117a).
However, it refused to order respondent’s admission, be
cause he had not met the burden of proving that he actually
would have been admitted in the absence of the Task Force
program (Pet.App. F, pp. 116a, 117a).

The California Supreme Court took the case directly from
the trial court, “prior to a decision by the Court of Appeal,
because of the importance of the issues involved.” 18 C.3d
at 39. The highest state court held the challenged program
unconstitutional “because it violates the rights guaranteed
to the majority by the equal protection clause of the Four
teenth Amendment of the United States Constitution.” Id.
at 63. Conceding, at least for the purposes of argument, that
the objectives of the Task Force program were not only
proper but compelling, the court, wholly without support
in the record, theorized that alternatives, such as increasing
the number of medical schools, aggressive recruiting or
exclusive reliance on disadvantaged background without
regard to race, would somehow achieve real racial diversity
without giving any weight whatsoever to race. Id. at 54-55.
The court also ruled that the trial court erred in imposing
on respondent the burden of proof as to whether he would
have been admitted in the absence of the Task Force pro
gram. Id. at 63-64. In its opinion as originally released, the
court directed that the case be remanded to the trial court
for redetermination of that issue with the University bear
ing the burden of proof (Pet.App. A, p. 38a).

The University filed a petition for rehearing (R. 445).
In that petition, the University conceded that, given re
spondent’s high rating in the admissions process, it would
not be able to sustain the burden of proving that respondent
would not have achieved admission in the absence of the

Task Force program.7 The court below denied rehearing
(Pet.App. B) but modified its initial opinion to direct that
respondent be admitted (Pet.App. C).

SUMMARY OF ARGUMENT

One of the things in which the nation may take great
pride since the end of World War II has been its willing
ness to address in actions, rather than simply words, the
racial injustices that are the unhappier parts of our legacy.
In that era, and for the first time in this century, we have
undertaken to deal vigorously and realistically with the
American dilemma by significant and persevering effort

7. E. 451, 487-88. The University resisted below, as it resists
today, the contention that it should bear the burden of proof on
whether respondent’s admission in fact turned on the existence or
nonexistence of the Task Force program. The University’s conces
sion in its rehearing petition does not constitute a reversal of that
position. Father, it reflects simply that, in light of respondent’s
proximity to admission in the years at issue, whether he would have
been admitted in the absence of the challenged program is, practi
cally speaking, a question of where the burden of proof on that
issue is allocated. The trial court in this ease found that respondent
would not have attained admission in either 1973 or 1974 even if
there had been no Task Force program (E. 389-90; Pet.App. 116a-
117a). However, in making that finding, the trial court was oper
ating on the premise that respondent bore the burden of proof (E.
383; Pet.App. 111a). Even on that assumption, the court in its
notice of intended decision declared: “There appears to the Court
to be at least a possibility that [respondent] might have been ad
mitted absent the 16 favored positions on behalf of minorities” (E.
308; Pet.App. 108a). Furthermore, although respondent’s numerical
rating did not put him in a group that was certain of admission,
it must be remembered that numerical ratings are not wholly con
trolling in the regular admissions process (E. 63-65). In addition,
in a report prepared in response to a complaint filed by respondent
with the Department of Health, Education and Welfare (see E.
281), the chairman of the admissions committee declared, “ [H]ad
additional places been available, individuals with Mr. Bakke’s rat
ings would likely have been admitted to the medical School [in
1973] as well” (E. 254).

9
and. by making the difficult adjustments inevitably in
volved in seeking to bring the reality of our society closer
to its aspirations. This Court played a major role in
articulating and imparting momentum to this commitment,
but the Court has not acted alone. The commitment to
relegate the lingering burdens of the past to the past has
run deeply and widely throughout the country, among a
great many of its institutions.

The problem also runs deep and wide. The dismantling
of the formidable structures of pervasive discrimination
requires great endurance, and the courage to maintain the
necessary great effort.

That the obstacles are formidable was clear from
the outset. But their true complexity only began to
appear after the first successful steps had been taken.
Nonetheless, those institutions that, in the exercise of
their appointed roles, confront at close range the enduring
effects of what has been handed down to us have not
shrunk from the commitment when the unforeseen com
plexities began to reveal themselves. Thus, when it be
came clear in the 1960’s that dismantling of formal racial
barriers did not itself bring long-alienated minorities into
the mainstream, the widespread response was not abandon
ment of the commitment but effort to seek new ways to
undo the continuing effects of past discrimination and to
achieve the benefits of a truly open, racially diverse
society.

The response was not only widespread; it sprang from
a broad range of independent and autonomous sources.
No central authority directed this effort. Yet toward the
end of the last decade, many governmental and private
institutions, including this Court, came concurrently to
the realization that a real effort to deal with many of
the facets of the legacy of past racial discrimination

10
unavoidably requires remedies that are attentive to race,
that color is relevant today if it is to be irrelevant tomor
row. This discovery and response was found in many
sectors of society; the school desegregation area was a
major arena, but the same phenomenon was found in
employment, housing, and many other areas, including
professional education.

This case concerns access of minorities to professional
education and careers, specifically in medicine. The experi
ence of the professional schools in the 1960’s mirrored the
picture elsewhere. The falling of formal racial barriers
failed to lead to participation by significant numbers of
minorities. All but two medical schools in the nation re
mained virtually all-white islands in a multiracial society.
Indeed, in terms of the numbers of minorities entering
medical schools, a threat of retrogression appeared.

At about the same time that other parts of the society
were independently arriving at similar conclusions, many
medical schools and national professional organizations
came to the realization that the only effective solution lay
through race-conscious admissions programs. The use of
racially-blind admissions criteria resulted in near-total
exclusion of historically disfavored minorities during a
period when the competition for medical school places was
only normally intense. The end of the last decade saw a
dramatically heightened over-all demand for admission to
medical school, which inevitably carried with it a sharp
escalation in the level of formal credentials of those attain
ing admission. These schools soon realized that failure to
devise and implement race-conscious admissions policies
would prolong indefinitely essentially all-white student
bodies and the extreme scarcity and isolation of minority
physicians. Medical schools, like many other institutions in
the society, found it both appropriate and necessary to

11
address a problem historically cast in racial terms through
remedial programs employing racial criteria.

Race-sensitive measures were employed in medical-
school admissions, as elsewhere, because they were found
to be necessary, not because of an ignorance of the con
cerns that may inhere in the use of such means, even for
remedial purposes. In programs like that at issue in this
controversy, the relevant concern is not for quotas, for
any slur or stigma against any particular group, for any
corruption of meritocratic principles, or for any singling
out of any particular ethnic group to bear the brunt of
the program. There has been a tendency to inject such
concerns into this matter, but on analysis they prove to be
irrelevant, misleading, or both. The relevant concern is for
a potential for the arousal of racial awareness in a society
that is striving to put behind it past tendencies to view
persons in racial and ethnic terms. The identification of
this concern represents the beginning, rather than the end,
of the requisite analysis. And, on balance, as well as
under all of the controlling authorities, the potential for
the arousal of racial awareness inescapably contained in
programs like that of the Davis medical school, when
weighed against the significant benefits to be achieved,
does not violate the Equal Protection Clause.

State action that arouses racial awareness in circum
stances where the potential for harm is very high and
where the state’s purpose is to inflict injury through such
arousal contravenes the Equal Protection Clause, as this
Court has recognized. Nevertheless, this and other Courts
have repeatedly upheld the utilization of racial criteria
for the purposes of achieving racial diversity in schools
and countering the effects of a legacy of discrimination,
despite the inevitable arousal of racial awareness prompted
by such means. The school desegregation cases, as well as

12
other lines of authority, reflect the ultimate judgment that
the benefits to be had from utilization of truly effective
remedies justify the transient societal costs and the
incidental effects on some whites. There is a distinction
between color-blindness and myopia, a line that has been
kept clear in these cases. 'They are determinative authority
for reversal in the instant case. But the University does
not rest there. The same result follows if resort be had to
other lines of authority.

The standard of strict judicial scrutiny does not apply to
this case. That standard is appropriately applied to racial
classifications aimed at harming discrete and insular minor
ities, to groups historically alienated and denied a voice in
political affairs. To apply stringent scrutiny to measures
intended to aid such groups, and when majoritarian proc
esses are plainly unimpaired, would stand the Equal Pro
tection Clause on its head and lead to an unwarranted, un
justified, and aberrational degree of judicial intervention in
intractable matters of educational policy properly reserved
to the states and to educators.

Begardless of the standard of review or burden of justi
fication, the Davis medical school program comports with
the Equal Protection Clause. The traditional standard of
review properly applies, and the program plainly meets i t ;
there is the most rational relationship between means and
ends. An intermediate standard of review is not warranted
by the circumstances, but the program in any event meets
such a standard. Finally, although strict judicial scrutiny is
wholly inappropriate, the program passes even that bar
rier. The ends of the program are as compelling as imagin
able in our country today. The fit between means and ends
is as tight as possible. There are no effective alternatives.
Unless the ends of the program are to be held illegal or
unless the state is to be left with compelling interests that it

13
is powerless to vindicate, the result below must be reversed
even on the standard least favorable to the University’s
position.

ARGUMENT
Introductory

The outcome of this controversy will decide for future
decades whether blacks, Chicanos and other insular minori
ties are to have meaningful access to higher education and
real opportunities to enter the learned professions, or are
to be penalized indefinitely by the disadvantages flowing
from previous pervasive discrimination. Affirmance of the
judgment below would mark a return to virtually all-white
professional schools. The professions would remain white
enclaves. Reversal would permit continuation of admissions
programs, like the one at Davis, fashioned by educators who
have agreed that “ [t]he greatest single handicap the ethnic
minorities face is their underrepresentation in the profes
sions of the nation.” The Carnegie Commission on Higher
Education, A Chance to Learn, 12-13 (1970). It would also
allow educators, rather than lawyers and judges, to deal
with intractable matters of educational policy.

Today, only a race-conscious plan for minority admissions
will permit qualified applicants from disadvantaged minori
ties to attend medical schools, law schools and other institu
tions of higher learning in sufficient numbers to enhance
the quality of the education of all students; to broaden
the professions and increase their services to the entire
community; to destroy pernicious stereotypes; and to
demonstrate to the young that educational opportunities
and rewarding careers are truly open regardless of ethnic
origin. Applicants for admission to professional schools

14
greatly outnumber the available places. Until their cultural
isolation is relieved by full participation in all phases of
society, historically alienated minorities would be screened
out by all racially blind methods of selection. There is,
literally, no substitute for the use of race as a factor in
admissions if professional schools are to admit more than
an isolated few applicants from minority groups long sub
jected to hostile and pervasive discrimination.

A fundamental error of the court below lies in its failure
to recognize this necessity. The court did not deny the great
values of the goals of the medical school faculty. It opined,
however, upon sheer speculation, without citation to evi
dence in or studies outside the record, that significant
numbers of minority medical students eould be enrolled by
reliance on “neutral” alternatives, such as recruitment.
Although the University believes that the California court
exceeded the judicial function in substituting its judgment
for that of educators and for that reason alone must be
reversed, its error was compounded by the fact that it was
wrong. Its “alternatives” are illusory. None of them would
lead to significant minority participation. A quixotic at
tempt to employ some of them would grievously harm
educational values considered fundamental by most facul
ties.

Most professional schools in this country today utilize
special-admissions programs. Since the governing boards
of these schools are not given to the employment of
ineffective means, it is no accident that these programs
employ racial criteria. These entities will recognize (as
they have in the past) the fallacies and false hopes in the
admissions policies espoused by the court below. Most pro
fessional schools predictably will be unwilling to engage
in subterfuge and, in the event of an affirmance, would
simply shut down their special-admissions programs. They

15
would be consigned to watching the number of minority
students in their schools dwindle to disappearance and to
hoping and waiting, much as the country hoped and waited
in the 1920’s and 1930’s, for the end of an era in which the
tyranny of abstract legal formulas bars gravely needed
reform efforts undertaken by entities other than the judici
ary.

Some faculties, reading between the lines of the opinion
below or of an affirmance at this Court and in a desperate
hope to preserve significant minority enrollment, might
resort to sub rosa race lines. This would represent sub
silentio acknowledgment of the by now obvious point that a
problem historically cast in racial and ethnic terms admits
only of solutions unavoidably defined in racial and ethnic
terms. However attractive this course might appear at
first, ultimately it would lead to three grave difficulties.

First, perhaps even the most ardent exponents of
realpolitik would agree that whatever the case for hypoc
risy and disingenuousness in other arenas, it may be intol
erable in a university. Second, the racial criteria at issue
here, unlike those that harm the discrete, powerless minori
ties, are realistically susceptible to alteration or elimination
by majoritarian or representative processes. Surreptitious
resort to racial and ethnic criteria would impair the ability
of these processes to control any abuses. Finally, an effort
to disguise purpose undoubtedly would encumber the judi
cial process, but ultimately it would not totally frustrate
judicial scrutiny. If deliberate reliance in any form on
factors of race or ethnicity as a means for dealing with
past or present exclusion of minorities from professional
schools and the professions constitutes invidious discrim
ination, as the court below held, then a program purportedly
neutral on its face but in fact applied for the purpose of
obtaining color-conscious results could in time be demon-

16
strated to be illegal. Accordingly, an effort to achieve the
ends of the Davis program while disclaiming, with a know
ing wink, reliance on race very likely would bring grief to a
faculty that made the attempt. It would certainly bring to
the courts a continuous burden of supervision of the admis
sions processes of the nation’s professional schools.

Despite the tenor of the opinion below, it simply is not
true that a judicial striking down of the challenged pro
gram won’t make much of a difference, that faculties nation
wide would find effective alternatives, and that significant
minority participation in professional education for the
foreseeable future would be likely to continue. There is no
such easy way out, notwithstanding the opinion of the court
below. The fundamental importance of this ease calls for
a clear-eyed recognition of what is really at stake and for
a resistance to the inclination to blink, or worse to mask,
the consequences of an affirmance.

The faculty of the Davis medical school, like this Court,
“was rightly concerned that childhood deficiencies in
the education and background of minority citizens, re
sulting from forces beyond their control, not be
allowed to work a cumulative and invidious burden
on such citizens for the remainder of their lives.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806
(1973).

The faculty sought to shorten the distance between the con
cept of formal equality of opportunity and the actuality of
real inequality of opportunity. Whether such voluntary,
remedial efforts will be permitted to continue, and whether
the doors, so recently opened, to the traditionally white pro
fessional schools are in fact to remain open to historically
excluded minorities, will turn on the result in this case.

The country is well-served by programs like the one at
the Davis medical school. They are positive proof to those

17
so long excluded from positions of responsibility that all
citizens are truly to be offered a chance to perform in
professional roles. Without such programs, the promise of
Brown v. Board of Education rings hollow in professional
education, for our time and, perhaps, for a very long time
to come.

I
The Legacy of Pervasive Racial Discrimination in Education,
Medicine and Beyond Burdens Discrete and insular Minorities,
as Well as the Larger Society. The Effects of Such Discrimina
tion Can Not Be Undone by Mere Reliance on Formulas of
Formal Equality. Having Witnessed the Failure of Such For
mulas, Responsible Educational and Professional Authorities
Have Recognized the Necessity of Employing Racially-Con-
scious Means to Achieve True Educational Opportunity and
the Benefits of a Racially Diverse Student Body and Profession.

A. THE LEG A CY OF DISCRIMINATION CONTINUES TO BURDEN AND TO
OBSTRUCT THE ADVANCEMENT OF DISCRETE AND INSULAR RACIAL
MINORITIES.

1. The delay in implementing Brown v. Board of Education is but one of the
elements of the experience of growing up as a member of a racial minority
in this country.

Students applying for admission to medical school in
1970, the first year of operation of the Davis Task Force
program, would in ordinary course have begun elementary
school in 1954, the year this Court decided Brown v. Board
of Education, 347 TT.S. 483. Brown eloquently expressed the
goal of educational opportunity unimpaired by the effects of
racial discrimination, but implementation of the commit
ment expressed in Brown has taken years and is even today
not complete. A rectification of such magnitude cannot occur
overnight, especially when it encounters resistance at the
local level. Minority students entering medical schools in
the 1970’s are from the generation of minority students who
have seen the hope but not the promise of Brown. This

18
Court spoke to the delay in implementing Brown at about
the time the Davis program got under way:

“Over the 16 years sinee Brown II, many difficulties
were encountered in implementation of the basic con
stitutional requirement that the State not discriminate
between public school children on the basis of their
race. Nothing in our national experience prior to 1955
prepared anyone for dealing with changes and adjust
ments of the magnitude and complexity encountered
since then. Deliberate resistance of some to the Court’s
mandates has impeded the good-faith efforts of others
to bring school systems into compliance. The detail and
nature of these dilatory tactics have been noted fre
quently by this Court and other courts.” Swann v.
Charlotte-Mechlenburg Board of Education, 402 U.S.
1,13 (1971).

Still more recent cases on this Court’s docket, from cities
of the North and West as well as the South, testify to the
continued prevalence of serious obstacles to the achievement
of desegregated schools. And for every case which reaches
this Court there are hundreds, or thousands, of similar
problems in other places which are faced only administra
tively or by lower courts or indeed not litigated at all. More
over, even a state such as California, which is one of the
most open societies in the country, cannot claim to have
been (or to be) free of discrimination on the basis of race.
The California school desegregation cases alone contradict
any such assertion,8 and they again represent only the tip
of the iceberg. But California could not, in any event, in
sulate itself from the effects of segregated education else-

8. See, e.g., Crawford v. Board of Education of the City of Los
Angeles, 17 C.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28 (1976); Soria
v. Oxnard School District, 386 F. Snpp. 539 (C.D. Cal. 1974);
Spangler v. Pasadena City Board of Education, 311 F. Supp. 501
(C.D. Cal. 1970). See generally, C. Wollenberg, A nn D eliberate
S p e e d : Segregation and E xclusion in Calieornia’s S chools,
1855-1975 (1976).

19
where in the nation. It is not simply that persons from other
states have a constitutional right to become California resi
dents if they wish. See, e.g., Shapiro v. Thompson, 394 U.S.
618 (1969). Many have actually exercised that right,
including particularly substantial numbers of minorities
from the South, the major cities of the North, and elsewhere.
For example, 41% of American-born blacks residing in Cali
fornia in 1970 were born in the South—more than were
born in California® These individuals are residents of the
state, but to the extent that they have endured segregated
education elsewhere, they cannot escape its consequences
merely by emigrating to California.

Ultimately, however, the legacy of past discrimination is
not limited to the harmful effects of segregated education.
Unequal education, however significant and immediately
relevant, is but one facet of a much more pervasive pattern
of discrimination against minority persons in this country:

“Kacial generalizations are pervasive and have tradi
tionally operated in the same direction—to the disad
vantage of members of the minority group. A person
who is denied one opportunity because he or she is
short or overweight will find other opportunities, for
in our society height and weight do not often serve as
the bases for generalizations determining who will re
ceive benefits. By contrast, at least until very recently,
a black was not denied an opportunity because of his or
her race, but denied virtually all desirable opportuni
ties. As door after door is shut in one’s face, the indi
vidual acts of discrimination combine into a systematic
and grossly inequitable frustration of opportunity.”10

9. The figures are essentially the same for the age-group most
eligible for medical school (20-24 years old). U.S. Bureau of the
Census, Dep’t of Commerce, Pub. No. PC(1)-DC6, U nited S tates
Cen su s oe P o pu la tio n : 1970, Detailed Characteristics, California,
Section 1, Table 140 (1973).

10. Brest, Foreword: In Defense of the Antidiscrimination
Principle, 90 Harv.L.Rev. 1, 10 (1976) (italics original).

20
Growing up black, Chicano, Asian, or Indian in America

is itself an experience which transcends the particular fact
of segregated education. The history and culture of each
of these groups is different, and thus to some extent is the
precise nature of the experience. But these groups all con
stitute

“ethnic minorities separated not only by substantially
different attitudes and experiences but by continued
educational disadvantages. [They] also share a dis
advantage resulting from circumstances of their par
ticular racial mixture. More of their members are
visibly distinguishable from the dominant majority
by their darker skin and certain related physical fea
tures. The prejudice of whites against people with
darker skins has a long history. It is expressed in
negative attitudes that encourage the preservation
of this psychological distance between [these] ethnic
groups and whites that their cultural differences had
already created. Even efforts by members of these
minorities to merge with the majority have been de
terred by this color prejudice.

“Each of [these] minority groups has been separated
and alienated within the United States. . . ,mi

11. C. Odegaard, M in orities in M e d ic in e : F rom R eceptive
P assivity to P ositive A ction 1966-76 at 8 (1977) [hereinafter
cited as M in orities in Med icin e] . The quoted passage speaks orig
inally of American Indians, Black Americans, Mexican Americans,
and Puerto Ricans, hut its reasoning clearly applies fully to Asian
Americans. The Court’s own cases of eourse provide a documentary
record of the history of discrimination against the groups included
in the Davis program. See, e.g., B o llin g v. Sharpe, 847 IJ.S. 497
(1954) ; H ernandez v. Texas, 347 U.S. 475 (1954); O yam a v. Cali
fo rn ia , 332 U.S. 633 (1948); M orton v. M ancari, 417 U.S. 535
(1974) . Because they share a history of uninterrupted discrimina
tion and near-total alienation based in substantial part on color,
these groups differ from other ethnic minorities. These groups are
referred to in this brief as racial minorities or as minorities. The
term “race” is vague and imprecise if not inaccurate, but as the
court below observed: “Unfortunately lexicon is imprecise and until
an improved taxonomy emerges we shall probably be compelled to
discuss problems such as that before us in terms of race.” 18 C.3d
at 46.

21
In other words, including those of this Court, to grow up
a member of one of these groups is to be of a discrete and
insular minority in this country.12

The difficulties inherent in growing up as a member of
a discrete and insular minority are encountered throughout
society. The problem is societal in nature. This case deals
with one aspect of the broader societal problem—medical
schools and medicine—and with the efforts of a medical
school to address those facets of the larger problem which
fall within its appointed role. Because this case on its
facts involves medical school admissions, we turn now to
the legacy of discrimination in the context of medicine.

2. The most significant fact about doctors from minority groups is that they
are so few, and the most significant fact about health care for such groups
is that it is scarce and inferior.

The ramifications of societal discrimination for minority
doctors extend to every aspect of their professional lives.
Black doctors have been isolated and constricted by denial
of opportunities in their training, their practice, and their
professional status.18 Restrictions on the access of black

12. The difference between growing up as a member of the
majority and growing up as a member of a racial minority can be
illustrated by comparing respondent’s life experiences with those
he would have encountered if black. Respondent was bom in the
midwest (R. 112). Subsequently he moved with his parents to
Florida, where he attended Coral Gables High School in Dade
County ( Ib id .) . In moving to Florida, his parents had the comfort
of knowing that respondent would be eligible for the best public
high school education available. That would not have been true if
respondent had been black, for in the years in which respondent
attended high school, Florida practiced de ju re discrimination and
“complete actual segregation of the races, both as to teachers and
pupils, still prevailed in the public schools of [Dade] County.”
Gibson v. B oard o f P u b lic In s tru c tio n o f D ade C oun ty , F lorida,
272 F.2d 763, 766 (CA5 1959).

13. Because extensive documentation is available only for
blacks, the discussion in this part of the brief focuses on that
minority group. What data are available suggest that the picture
for other minorities is not essentially different. See text at and
n. 22, in fra .

22
medical graduates to advanced clinical training and to spe
cialty board certification have resulted in fewer specialists
among black physicians than among white.14 The relative
paucity of blacks on the faculties of American medical
schools exceeds even the degree of their scarcity in the
profession.15 Racial barriers have often obstructed hospital
appointments necessary to effective practice.16 Such appoint
ments, continuing education, valuable professional contacts,
and even specialty certification have turned upon member
ship in the state or local medical society.17 Yet it was not
until 1968 that the American Medical Association prohibited
racial bars to membership in its state and local affiliates.18
And in 1971 the House of Delegates of that organization
found it necessary to adopt a resolution threatening sus
pension of local units which continued to practice racial
exclusion.19

14. M. Seham, B lacks and A merican Medical Care 57, 71
(1973) [hereinafter cited as B lacks and Medical Care] ; Haynes,
D istr ib u tio n o f B lack P hysic ians in the U n ited S ta tes , 210 j .a .m .a .
93, 95 (1969); Melton, H ea lth M anpow er and N egro H e a lth : T he
N egro P hysic ian , 43 J.Med.Educ. 798, 806 (1968); Johnson, H is
to ry o f the E d u ca tio n o f N egro P hysicians, 42 J .M ed .E duc. 439,
442-43 (1967).

15. D atagram : E th n ic G roup M em bers on U .S. M edical F acu l
ties, 51 J.Med.Educ. 69, 70 (1976). And 36% of the black members
of medical faculties serve at Howard University, Meharry Medical
College, and the University of Puerto Rico. Id .

16. B lacks and M edical Care, 71-77.
17. Id . at 75; Melton, supra note 14, at 806.
18. B lacks and Medical Care, 74.
19. Id . at 81.
The presence or absence of minority members in medical societies

can also make a difference in the way those organizations address
important questions of health care. Thus, for example, it would be
not merely insensitive, but unthinkable, for the head of a medical
society with substantial numbers of minority members to make the
following public statement, attributed to the president of the Ameri
can Medical Association in 1968:

“ [The president] said that the medical profession should
not be blamed for this group’s [“people in big-city ghettos”]

23
The data could be multiplied. But the most important

fact about minority doctors is that there are so few of them.
The 1970 census reported 6,002 black physicians out of
279,658 physicians in the United States, or 2.1% of the
total.20 The reported ratio of black physicians to blacks
is far lower than the physician/non-physician ratio for the
nation at large. For blacks, that ratio is 1/4248. For the
population generally, it is 1/649. The shortage of black
physicians is most acute in the deep South, where in some
states the physician/non-physician ratios among blacks
has been reported to be in the range of 1/15,000 to 1/20,000.21
The picture for Mexican Americans and American Indians
is almost certainly worse yet.22

The scarcity and inferior status of minority physicians
is mirrored by the scarcity and inferiority of health care
services for minorities. The distressing status of health
care for minorities is amply chronicled elsewhere:

“Every measure of health we have shows striking
differences between the white and nonwhite population,
and this gap is becoming a chasm in spite of all the
advanced technical resources in our country. Blacks
in our country do not live as long as whites; black
mothers die in childbirth more often than whites and

inability or lack of willingness to educate themselves, for the
conditions in which they live, for the lack of transportation to
allow them to visit existing health care institutions, and for
their reluctance to see a physician in a free clinic until their
condition is beyond help.” AMA News, April 8, 1968, p. 8.

20. U.S. Bureau of Health Manpower, Dep’t of Health, Educa
tion and Welfare, Pub. No. (HRA) 76-22, M inorities and W om en
in the H ea lth F ields: A p p lica n ts , S tu d e n ts and W orkers at 9
(1975).

21. Thompson, C urbing the B lack P hysic ian M anpow er S h o r t
age, 49 J .M ed.E dttc. 944, 945-46 (1974).

22. The data are very sparse. See M in orities in Medicine 33;
Applewhite, Blochs in P ub lic H ea lth , 66 J.N.M.A. 505, 506 (1974) ;
T h e N ew Y ork T im es , June 6, 1974, at 36, col. 5 (letter from
William E. Cadbury, Jr., Executive Director, National Medical
Fellowships, Ine.).

24
their babies are more likely to be premature, stillborn,
or dead in their first year of life. Blacks visit doctors
less frequently than whites and when they go to the
hospital they are more likely than whites to need a
longer stay, which reflects the fact that they have been
medically neglected. In almost every category of illness,
the morbidity and death rates among blacks are higher
than among whites. Blacks suffer proportionately more
acute and chronic illnesses. In 1960 the death rate for
blacks from pulmonary tuberculosis was roughly four
times that of the white population, and the number
of active cases among blacks was three times as high.
According to the Public Health Service data, in 1962
the incidence of reported syphilis among blacks was
ten times greater than among whites and the death
rate was about four times as high. Hypertension, dia
betes, cirrhosis of the liver, and malignant neoplasms
also affect blacks more than they do whites. . . .

“Black death rates relating to such communicable
diseases as whooping cough, meningitis, measles, diph
theria, and scarlet fever are particularly high. This,
of course, is because frequently black children have
not been immunized. And in almost every category of
causes of deaths for infants, the rate for blacks is 39.5
per 1,000 live births, almost twice as high as for whites
(20.8). . . . The difference cannot be attributed to
income alone, since when the death rates of infants
from low-income families are analyzed, race still makes
the difference. The infant death rate for families whose
income is less than $3,000 is 27.3 per 1,000 live births
for white families, and 42.5 for blacks; when family
income is between $3,000 and $4,900, the rate for whites
is 22.1, and 46.8 for blacks.” 23

To suggest that the paucity of minority physicians is
reflected in poor medical care for minorities is not to sug
gest that only blacks can treat blacks or that only Asians

23. B lacks and M edical Care 9-11.

25
should treat Asians or that only Chicanos should be trained
to treat Chicanos. It is simply to recognize the reality that
many forces, including economics, idealism, and continuing
patterns of discrimination, commonly bring minority phy
sicians back into minority communities, where the shortage
of health services is most severe, and that as a society we
have refrained from compelling other physicians to locate
their practices in those areas.

“If you could insist, for instance, that the people
who come into the professional schools make a contract
for 10 or 20 year terms to serve low-income people,
then you would have no need to be racially selective.
But the fact of the matter is you could neither make
nor enforce such a contract. Therefore, one must be
more explicit in favoring those people who, in fact,
are more likely to make a commitment to serve in that
sector of the community that has the most acute medi
cal and public health needs for a long term. Viewed
from that quasi-contractual perspective, independently
of the race of the people involved, then I think you can
have the proper focus on what needs to be done in the
admission policies. Operating on that theory of a con
tract in its social sense, I think it is safe to say that
there is an overwhelming disproportion of probability
that black people will return by necessity of culture and
custom to the black community, to use their talents. It
is not a philosophical position, it is a statistical posi
tion. It is justified not on the basis of the theory of
differences of color, but on the practical necessities of
the deprivation of peculiar enclaves within our society
that we need to be concerned with a new racially-
selective education.”24

24 J enkins, T he H ow ard P rofessional School in a N ew Social
P erspective , 62 J.N.M.A. 167 (1970). There are data showing that
doctors of non-racial ethnic groups (Anglo-Saxon, Irish, Italian,
Jewish, and Polish) tend to “specialize in serving their fellow-
ethnics.” Lieberson, E th n ic Groups and the Practice o f M edicine,
23 Am. Soo. Rev. 542, 546 (1958). There is also a strikingly high

B. UNTIL THE ADVENT OF SPECIAL-ADMISSIONS PROGRAMS, MEDICAL
SCHOOLS, EXCEPT FOR TWO TRADITIONALLY BLACK, WERE WHITE
ISLANDS IN A MULTI-RACIAL SOCIETY.

1. Formal barriers against minority participation in medical schools did not
fall until very recently and, by itself, the elimination of those restraints did
not produce racial diversity. Indeed, mere reliance on formulas of formal
equality raised the threat of retrogression, rather than the prospect of
progress.

The beginning of this decade witnessed the advent of
minority special-admissions programs. Before then, medical
schools in the United States had always been white islands
in a multi-racial society, except for traditionally black
Howard University and Meharry Medical College. For the
longest portion of our history after the end of slavery,
minorities were excluded from many, if not most, medical
schools by law or by official school policies.25 The final col
lapse of state de jure barriers was unquestionably mandated
in 1954. Over the following years, state schools fell into line,
with varying degrees of implementation of the requirements
of Brown.2<i In addition, many private schools responded to
the moral imperative of Brown, although the last of the
explicit discrimination policies in medical schools was not
abandoned until 1971.27 As the formal barriers dropped,

percentage of minority medical students interested in practicing in
physician shortage areas. See R. Mantovani, T. Gordon & D. John
son, M edical School Indeb tedness and C arreer P lans 1974-75 at
28, 32, 50 (DHEW Pub. No. (HRA) 77-21,1976). See also J. Curtis,
B lacks, Medical S chools, and S ociety 147 (1971); Elesh and
Schollaert, Race and U rban M edicine: F actors A ffe c tin g the D is
tr ib u tio n o f P hysic ians in Chicago, 13 J. H ealth & Soc. B e h . 236
(1972).

25. As late as 1948, 26 of the country’s 77 medieal schools stated
publicly that no blacks1 need apply. D. Reitzes, N egroes and Medi
c in e 8 (1958).

26. As of 1964, five state schools had still not complied. Raup &
Williams, Negro S tu d e n ts in M edical Schools in th e U n ited S ta tes ,
39 J.Med.Educ. 444, 445 (1964).

27. Id . at 444: Blacks and Medical Care 45.

27
minority applicants were, finally, at least considered for
admission. Bnt even adherence to admissions formulas of
formal equality made no significant difference in the pattern
of exclusion of minorities from medical school. The con
tinued exclusion was a function of persistent discrimination
in lower levels of education and in society, later intensified
by the greatly heightened general demand for medical
school admission. Indeed, in an ironic—and potentially
ominous—twist, the ending of official racial discrimination
apparently had the effect of reducing the total number of
black medical students in the country, when Howard and
Meharry began admitting significant numbers of whites and
the predominantly white schools did not yet have special-
admissions programs.28 The total number of blacks in medi
cal school, and the percentage of them in the historically
white schools, was substantially less in 1963-1964 than it
had been in 1955-1956 and did not return to the earlier level
until 1968-1969.29 In academic year 1968-1969, when the
record of minority participation was as good as it had ever
been, black Americans constituted eight-tenths of one per-

28. The total number of black medical students in the United
States in 1961-62 was 771. The number dropped the following year
to 715, and rose only to 735 in 1967-68. Meanwhile, black enrollment
in all schools other than Howard and Meharry remained essentially
unchanged from 1961-62 to 1962-63 (171 and 173 respectively),
and rose (to 211) in 1967-68. The black enrollment at Howard and
Meharry dropped sharply from 595 to 542 between 1961-62 and
1962-63, accounting for' virtually the entire reduction in the total
of black medical students in the country at that time. It dropped
still further, to 514, in 1967-68. The data for 1961-62 and 1962-63
are from Hutchins, Reitman, & Klaub, M inorities, M anpow er and
M edicine, 42 J.M ed .E duc. 809, 815 (1967). The data for_1967-68
are derived from Crowley & Nicholson, N egro E n ro llm en t in M edi
cal Schools, 210 J.A.M.A. 96, 97 (1969). As to the admission of
whites to the traditionally black medical schools, see Hutchins,
Reitman, & Klaub, supra, at 815; J. Curtis, M edical S chools and
S ociety 113-14 (1971).

29. M inorities in M edicine 19, an d sources cited.

28
cent, and Mexican Americans less than two-tenths of one
percent, of the total enrollment in the white schools.30

2. Despite the persistence of discrimination, a pool of fully qualified minority
applicants existed by the late 1960's, but the steep rise in demand for
medical school admission, coupled with the sharp increase in the numerical
credentials of those admitted, continued to exclude minorities.

Although the years since Brown have seen the elimination,
of formal barriers against minorities, the same period has
witnessed a dramatic increase in the general demand for
admission to professional schools.81 That growth in demand
for admission, particularly to medical and law schools, has
left far behind the time when all or most qualified applicants
could be admitted. Moreover, that increase in the overall
number of applicants for the limited number of places in
professional schools in the last decade frustrated the goal
of bringing historically suppressed minorities into the main
stream of graduate education and professional life by mere
reliance on the excision of formal discrimination.

Despite the persistent effects of past discrimination, a
pool of fully qualified minority applicants for medical
schools existed by the late 1960’s and early 1970’s. At the
same time, the greatly increased size of the pool of all
applicants in the last decade inevitably escalated sharply

30. American Indians were one-fortieth of one percent and
Mainland Puerto Ricans less than one-one-hundredth of one per
cent.. (The actual numbers were 9 and 3, respectively, out of a
total enrollment of 35,180.) The proportion of American Orientals
was a little over one percent. Dove, Minority Enrollment in U.S.
Medical Schools, 1969-70 Compared to 1968 -69 , 45 J.Med.Educ.
179, 180 (1970). Data are available only for certain years prior
to 1968-69, when the Association of American Medical Colleges
began to report statistics on minorities on a regular basis. See
Hutchins, Reitman & Klaub, n. 28 supra, at 814-15.

31. Medical school figures are as follows: In 1960-61, 14,397
persons applied for 8,560 positions. In 1970-71, 24,987 applicants
competed for 11,500 places. By 1975-76, the number of applicants
had risen to 42,303 while the number of available places had risen
more slowly, to 15,365. For a table of application activity over the
preceding 22 years, see 236 J.A.M.A. 2961 (1976).

29
the numerical credentials of those admitted pursuant to his
torical admissions policies,82 A large gap opened, which has
not yet closed, between the test scores and college records
exhibited by whites and those exhibited by minorities.83
Because of the gap in these credentials between minorities
and whites, the reliance placed on numerical indicators of
predicted academic performance in the late 1960’s continued
to limit admission almost exclusively to whites.34

Medical schools traditionally have not relied on numerical
indicators to the degree that law schools do today.35 Medi
cal school admissions processes historically have placed
more emphasis on noncognitive factors, including those dis
closed by personal interviews, candidates’ written state
ments, and letters of recommendation. But the increased
reliance on noncognitive elements in the medical school
world has never meant the abandonment of cognitive
factors. Indeed, for some years following the launching of
Sputnik in 1957, medical school faculties, among others,
accentuated scientific skills and research. This eoncentra-

32. See M edical E d u ca tio n in the U n ited S ta tes, 1975-76, 236
J A M A 2949 2962, 2963 (1976); M edical E d u ca tio n in the U nited
S ta tes , 1966-67, 202 J.A.M.A. 753 (1967). The data are summarized
and discussed in Cuca, Sakakeeny & Johnson, T h e Medical, S chool
A dmissions P rocess: A R eview of t h e L iterature 1955-76 at ISO-
34 (1976) (an Association of American Medical Colleges report)
[hereinafter cited as AAMC R eview : Medical S chool A dmissions] .

33 See Johnson, Smith & Tamoff, R ecru itm en t and Progress o f
M in o rity M edical School E n tra n ts 1970-72, 50 J.M ed .E duc. 713,
755 (1975); Dube & Johnson, M edical School A p p lica n ts , 1973-74
S u p p le m e n ta ry Tables, Table S-6 (AAMC 1976) ; Gordon, D escrip
tive S tu d y o f M edical School A p p lica n ts , 1975-/6, at 70,_ App.Table
A-l (AAMC 1977); Waldman, Econom ic and R acial D isadvantage
A s R eflected in T ra d itiona l M edical School Selection F actors: A
S tu d y o f 1976 A p p lic a n ts to U .S. M edical Schools (AAMC 1977)

I t should be noted that the MCAT score often given the greatest
weight by medical school admissions officials is the one for the sci
ence section. The quantitative score is at times also considered to
be of importance.

34. See pp. 27-28, supra, and accompanying notes.
35. See AAMC R e v ie w : M edical S chool A dmissions 75.

30
tion on the scientific mission ahead of medical schools’ other
charges led to an unusually heavy reliance on numerical
admissions criteria.

During the past ten years, the vast majority of medical
school faculties have taken a much wider view of their
role, reemphasizing their responsibilities for educating
effective clinicians and practitioners. In selecting among
a continually expanding pool of well-qualified applicants,
these schools have sought to admit a significant number of
applicants with characteristics more directly related to
the broad range of needs and responsibilities of medical
education and to the varied requirements of effective
delivery of health care. The increased relative weight
given nonnumerical criteria—such as motivation, charac
ter, ability to cope, interest in career patterns for which
there is a special need, orientation toward human as well
as scientific concerns—and the definition and balance of
those elements, varied from school to school. But in each,
the admissions process produced a class in which each
student was not only well-qualified cognitively but was
further “particularly qualified” for membership, one no
less than another, because . of personal characteristics
judged by that faculty to be relevant to the needs of the
educative community and the profession.36

36. “ [W]hereas 20 years ago most admissions officers were pri
marily concerned with choosing the academically best qualified
applicants, today’s admissions officers are trying to recruit and
select students who will also meet the objectives of their institu
tions and of society.” AAMC R e v ie w : Medical S chool A dmis
sions 9. See also id. at 2-9, 44, 127-31, and sources cited. See also
M in orities in Medicine 69-76.

The Davis medical school put substantial emphasis on non-
cognitive factors in its regular admissions process. The point is
graphically, if inadvertently, made by the table appearing at page
11 of the Brief for Respondent in Opposition to Certiorari. The
table demonstrates that respondent’s numerical credentials, in every
category except one (in one year) for both of the years he applied,
exceeded the average of all students admitted through regular
admissions.

31
Special-admissions programs, like the one at Davis,

represent a logical extension of the rejection of an exces
sive degree of reliance on science-related indicators. The
first step away from the doetor-as-scientist model was
aimed at producing a more diverse student body and pro
fession. But this step did not, by itself, lead to racial
diversity in the medical schools, nor a substantial number
of minority physicians. The width of the gap between the
numerical indicators of various groups continued to bar
minorities from medical education.87 Many schools recog
nized that a further step towards tempered reliance on
numerical indicators, particularly in light of concerns about
their accuracy in the ease of historically alienated minori
ties,88 was both necessary and appropriate in order to
obtain the benefits of significant minority participation.
Those schools made this further step without forfeiting
the value of cognitive indicators as rough tools for sorting
out those who are unqualified or as one rough guide in select
ing among those who are objectively qualified.

In sum, the institutions that took the next step of adopt
ing programs like the one at Davis continued the process
of broadening the scope of admissions criteria to bring
them more closely into line with a broad range of educa
tional imperatives and pressing needs in the profession
and the larger society. Thus, in the view of these schools,
the students admitted under these programs were as “par-

37. This is reflected in the small number of minorities who were
admitted through regular admissions at Davis in the years shown
in the record. See page 3, supra.

38. Few empirical studies are available even today. AAMC R e
view : Medical S chool A dmissions 50-51 discusses two: Johnson,
Smith and Tarnoff, n. 33 supra, and an unpublished paper by
Feitz. See also Simon and Coveil, Performance of Medical Students
Admitted Via Regular and Admissions-Variance Routes, 50 J.M ed.
E d. 237 (1975). The Davis faculty took such concerns into account
(R-. 68-69).

32
ticularly qualified” for admission as anyone else given a
place in the class. That these students were likely to make
life choices different from those of science-oriented gradu
ates of a decade before was seen as a virtue rather than
a loss. To restrict faculties in making these judgments,
to elevate once more the role of numerical indicators
in an arid conformity to a concept of formal equality
found inadequate by those faculties, would reinstate, at
least for the foreseeable future, a realm of virtually all-
white medical schools.

C. SPECIAL-ADMISSIONS PROGRAMS ARE INTENDED TO FURTHER G O ALS
UNIVERSALLY RECOGNIZED AS COM PELLING. THE INVESTMENT OF
EFFORT IN SUCH PROGRAMS IN PROFESSIONAL SCH O O LS HAS BEEN
NATIONWIDE, AND REFLECTS A NATIONWIDE RECOGNITION. SHARED
BY THIS COURT, THAT THE ENDURING EFFECTS OF RACIAL DISCRIMIN
ATION CANNOT BE COUNTERED BY MERE ABOLITION OF FORMAL
BARRIERS.

The Davis program, like its counterparts nationwide,
represents a voluntary effort by a medical school faculty
to further the process initiated in Brown v. Board of
Education. The ends of the program are universally recog
nized as compelling. The ends include reducing the historic
deficit of traditionally disfavored minorities in medical
schools and in the medical profession, countering the
effects of educational deprivation and societal discrimina
tion, and obtaining the educational and societal benefits that
flow from racial and ethnic diversity in a medical school
student body. The goals are not restricted to increasing the
number of medical school students and doctors from the
ranks of minority groups or to obtaining the benefits of
the recognition that, in a multi-racial world, applicants
from minority backgrounds may possess skills not shared
broadly by applicants from other backgrounds. Nor are
they limited to increasing aspirations among minorities

33
that have viewed medicine as a field closed to them and thus
unworthy of pursuit, or to destroying persistent and per
nicious stereotypes, among minorities and non-minorities
alike, that it is not the proper “place” for minorities to
aspire to become physicians. The goals also include increas
ing the skills of non-minority medical school students and
physicians. As a result of the integrated education made
possible by the Davis program, white students will develop
an enhanced awareness of the medical concerns of minori
ties and of the difficulties of effective delivery of health care
services in minority communities. They will also stand a
better chance of developing a rapport with their future
minority patients, no matter where they encounter such
patients. Although the challenged program does not oblige
a future physician to restrict his or her choices, the Davis
program may prompt more white physicians to practice
in minority communities, traditionally areas with a short
age of doctors. Even if the non-minority graduates of the
Davis medical school do not make that choice in locating
their practices, the challenged program will have permitted
them to build bonds to minority physicians for future con
sultation and referral, to the mutual benefit of physicians
and patients. White physicians graduating from Davis
during the life of the challenged program will possess
greater skills and be better doctors than would be possible
without the program.89

The adoption of the Task Force program by the Davis
faculty followed the formal recommendation of the Associ
ation of American Medical Colleges that “ [m] edical schools

39. Minority physicians graduated from Davis will also be bet
ter doctors than they would have been absent an integrated educa
tion. Of course, this point can’t be carried toofar, for the obvious
reason that absent the Davis program and similar programs across
the country, most minorities now in medical school would not re
ceive a medical education at all—integrated or otherwise.

must admit increased numbers of students from geographic
areas, economic backgrounds and ethnic groups that are
now inadequately represented,”40 and was part of a nation
wide effort undertaken by many medical schools about that
time to achieve a significant number of minority medical
students in the United States.41 That effort was endorsed
by leading professional organizations, including the Amer
ican Medical Association, the National Medical Association,
and the American Hospital Association, as well as the Asso
ciation of American Medical Colleges.42 The effort was
not restricted to medical schools or to medical professional
groups. Law school and other faculties across the country,
as well as other responsible authorities, including the
executive branch of the federal government, have volun
tarily and independently adopted racially-conscious means
to counter the enduring bane of pervasive discrimination.

40. A ssociation o f A m erica n M edical Colleges: Proceedings fo r
1968, 44 J .M ed.E duc. 349 (1969).

41. This effort was race-conscious from the outset. It will be
noted that the national Task Force referred to in note 3, supra,
had the stated purpose of expanding educational opportunity for
“Blacks and Other Minorities.” The Association of American Medi
cal Colleges established an Office of Minority Affairs in 1969, which
was supported by funds from the federal government and the
Alfred P. Sloan Foundation. For a summary of national activity
during this period, see M inorities in Medicine 23-27. See also note
51, in fra .

42. These organizations formed the Inter-Association Commit
tee which received and endorsed the Report of the Task Force on
Expanding Educational Opportunities in Medicine for Blacks and
Other Minority Students, see n. 3, supra. Financial support for
programs to increase minority participation came from a variety of
national sources. Early instances are mentioned in n. 41, supra and
in M inorities in Medicine at 23-27. In 1972, the Robert Wood
Johnson Foundation made a $10,000,000 grant “for use by medical
schools from 1972 to 1976 in recruiting and retaining students who
are female, from underrepresented minority groups, and/or from
rural areas. I t was assumed that these individuals would be more
apt to meet the geographical and specialty manpower needs of the
nation.” AAMC R e v ie w : Medical S chool A dmissions 7-8.

35
The substantial investment of effort in these programs has
not been lightly made, nor was it a function of academic
theorizing or uncabined idealism. Rather, it was a realistic
assessment of what is necessary to deal with a real-world
problem.

In choosing the challenged means, the Davis medical
school reflected an increasing national awareness that,
whatever might occur in an ideal society historically free
of centuries of invidious and pervasive discrimination
against the members of insular minority groups, in the real
world the mere elimination of formal barriers against
minorities could not actually produce equality of oppor
tunity. The widespread conclusion of professional school
faculties and others that affirmative, race-conscious steps,
rather than merely dropping formal barriers, were neces
sary to this end paralleled an identical conclusion by this
Court in the context of particularized racial discrimination
in public school systems. Green v. Gounty School Board,
391 U.S. 430 (1968). As this Court has recognized in the
school desegregation cases, the effects of deeply-ingrained
and long-standing discrimination cannot be overcome over
night, or simply by the abandonment of formal barriers.
Exclusive resort to a “color-blind” formalism, “against the
background of segregation, would render illusory the prom
ise of Brown v. Board of Education.” North Carolina State
Board of Education v. Swann, 402 TT.S. 43, 45-46 (1971).

D FURTHERANCE OF THE G O ALS OF THE DAVIS PROGRAM AND ITS
COUNTERPARTS NATIONWIDE UNAVOIDABLY REQUIRES THE USE OF
RACIALLY-CON SCIOUS MEANS.

The means chosen by the Davis medical school are the
means most directly related to the desired ends. The
faculty chose racially-conscious means because it concluded
nothing else would work. “To have done otherwise would

36
have severely hampered the [faculty’s] ability to deal
effectively with the task at hand.” McDaniel v. Barresi, 402
U.S. 39, 41 (1971).

The court below based its result largely on the premise
that racially-neutral means would further the goals of the
Davis program. That premise is wholly false. There are no
effective alternatives to attainment of the desired ends. One
of the California court’s proposals, expanding the number
of medical schools, is, of course, beyond the control of
medical school faculties, but the decisive answer is its
unrealism in today’s era of dwindling financial resources.43
Another, “aggressive programs” of identification and re
cruitment of prospects, simply ignores the great amount
of such activity which has been going on for some years,44

43. In Ms dissenting opinion, Justice Tobriner aptly described
this proposal as a “cruel hoax.” 18 C.3d at 90. Apart from its un
realism, this proposal overlooks an obvious fact demonstrated by
the experience at the Davis medical school when it opened its doors
and did not employ a special-admissions program—whatever addi
tional places in medical school are created are likely to be filled
overwhelmingly by white students. That has certainly been true for
the increased number of places which have become available even
since special-admissions programs started. Between 1968-69 and
1974-75, enrollment in American medical schools increased by
17,721 ’(from 35,833 to 53,554). Minorities and Women in the
Health Fields, n. 20 supra, at 13 (1975). In the absence of special-
admissions programs, virtually all of these new seats would have
been occupied by whites. As it was, whites still received the lion’s
share: 13,436 (76%) of the new places went to whites. Hid. I t is
also worth noting that in the 1975-76 entering class nationwide,
whites were 82% of all applicants and received 85% of the avail
able places. Gordon, Descriptive Study of Medical School Appli
cants, 1975-76, at 32 (1977).

44. The California court spoke of identifying and recruiting
disadvantaged students without regard to race. 18 C.3d at 55.
Even aside from the fundamental fallacy which this proposal
shares with any predicated upon obtaining significant numbers
of minority students by use of a disadvantage referent, see text at
and notes 46-48, infra, its futility is separately demonstrated by
the fact that extensive identification and recruitment programs
explicitly addressed to minority prospects as such have been func-

37
as well as tlie fact that the known existence of real oppor
tunities for admission to medical school constitutes a far
more powerful magnet than—and an essential condition to
the success of—any recruiting efforts.45 Similarly, the pro
posal for a special admissions program based on disadvan
tage without regard to race also founders on the rock of
reality. A racially “neutral” disadvantaged program would
produce results essentially indistinguishable from total
abolition of special-admissions, for at least two reasons.
First, whites greatly outnumber minorities at every income
level.46 Second, the gap between numerical indicators exhib-

tioning for years and have not obviated the necessity for admis
sions programs. The lower court’s proposal for “remedial schooling”
similarly ignores the substantial activities to this end, begun years
before the institution of special-admissions programs. For a brief
description of some of the nationwide identification, recruitment,
and pre-admission remedial training programs, see M inorities in
Medic in e 20-27. This summary does not, of course, include the
myriad programs carried on by individual schools.

45. The point would seem self-evident. There is reason to believe,
however, that the known availability of real opportunities for
admission may be particularly important to the educational ambi
tions of young minority students. See Kerckhoff _ & Campbell,
Race and Social S ta tu s D ifferences in the E x p la n a tio n o f E d u ca
tiona l A m b itio n , 55 J.Soc.F orces 701 (1977).

46. The court below may have been attracted to its dis
advantaged proposal by the thought that minority groups have a
very high proportion of lower-income families. That is a fac t: e.g.,
76% of black families, and 70% of those of Spanish origin, had
1969 incomes below $10,000. But it is also true that of all families
with such lower incomes, 85% were white, and only 15% minorities
(5% were of Spanish origin). U.S. Bureau of the Census, Depart
ment of Commerce, Pub. No. PC (2)-8A, U nited States Census
of P o pu la tio n : 1970 Sources and S tru c tu re o f F a m ily Incom e,
pp. 1-12. . . .

I t should also be noted that far more whites than minorities
possess the essential requisites for medical school, such as a high
school or college diploma. Of the population 25 and over in 1970,
11 3% of whites, but only 4.5% of blacks, had had four (or more)
years of college; 54.3% of whites had graduated from high school,
but only 31.4% of blacks had done so. Id ., S u b je c t R eports, Pub.
No. PC(2)-B, Educational Attainment, pp. 30-44.

38
ited by whites and by minorities remains just as wide
when only applicants from lower-income families are con
sidered as it is in the universe of all applicants.47 Thus,
adoption of a truly racially “neutral” disadvantaged
approach would do little more than substitute less-affluent
whites for more-affluent whites. Whatever the desirability
of such a result, it would not achieve the goal of signifi
cant minority participation.48

The proposals put forward by the court below are pre
sumably those it considered most likely to succeed, yet they
patently must fail. This is surely evidence of the wisdom
of this Court’s admonition that the “lack of specialized
knowledge and experience” among judges counsels against
judicial interference with the decisions of responsible
authorities in areas such as this, involving the “most
persistent and difficult questions of educational policy.” San
Antonio Independent School District v. Rodrigues, 411

A study by the Association of American Medical Colleges found
that of applicants from families with less than $10,000 income,
71% were white and 29% were “underrepresented minorities”.
Moreover, since most of the substantial number who had failed
to identify themselves were thought to be white, the 71% figure
may well be an underestimate. Waldman, Economic and Racial
Disadvantage as Reflected in Traditional Medical School Selection
Factors: A Study of 1976 Applicants to TJ.S. Medical Schools
(AAMC 1977).

I t is also worthy of note that the absolute number of applicants
with known scores and parental incomes under $10,000 who were
from “underrepresented minorities” was only 1,416 (out of a
total pool of 40,328). The number of such applicants who were
accepted in medical schools was 462. The total number of all
“underrepresented minorities” accepted in medical school was at
least 1,200. Did.

47. Did.
48. Projections of a “disadvantaged” special-admissions pro

gram (using legs-than-$10,000 family income as the criterion)
which used MCAT science scores or grade-point averages as selec
tors showed that “underrepresented minorities” actually admitted
to medical schools would constitute between 2% and 3% of the
class. Did.

39
U.S. 1, 42 (1973). It is also evidence that the solution by
way of “alternatives” is non-existent.

It is almost certainly impossible to admit more than an
isolated few minorities by resort to any referent truly neu
tral as to race. With regard to all such referents that have
any conceivable relevance to medical school admissions
(such as poverty, rural or inner-city background, etc.),
nonminorities greatly outnumber minorities.49 Even if the
gap in the numerical credentials were totally ignored, any
admissions program based on such a referent could allow
enrollment of a significant number of minorities only if its
scope were large enough to encompass the bulk of all admis
sions to every class.50 To give a program such hegemony
would force a medical school to commit far more of its
limited resources, in number of available spaces and other
wise, to this end than can be appropriately devoted to the
service of any one of its multifold missions. Such an ap
proach would also mean abandonment of educational values

49. A few examples should suffice. As to location, of residence:
86% of urban dwellers in 1970 were white and only 14% from
other racial groups (6% were of Spanish heritage); of those
residing in central cities, 77% were whites and 23% were of other
racial groups (7% were of Spanish heritage). U.S. Bureau of the
Census, Department of Commerce, Cen su s oe P o pu la tio n : 1970,
vol. 1, C haracteristics o f the P opu la tion , P a rt 1, U n ited S ta tes
S u m m a ry , p. 1-262.

Efforts to focus on educationally-deprived background would
provide no more useful referent: Of all 1970 families headed by a
person not a high school graduate which include children under
18, 82% were white and 18% were minorities (8% were of Spanish
origin). Id ., S u b je c t R eports, Final Report PC(2)-4A, F a m ily
C om position, pp. 103-05.

50. The degree to which whites outnumber minorities with
regard to any conceivably relevant referent, see n. 49, supra,
demonstrates that abolishing all reliance on numerical criteria is
no solution, quite apart from the fact that, to the extent that those
criteria are of value, to discard them would be to cast out the baby
with the bath water.

40
deemed fundamental by most faculties and governing
boards. Thus, any referent which is not simply a proxy for
race will not work. And any referent which is a proxy for
race would presumably be no less invalid under the decision
of the court below than a directly race-sensitive measure.
Cf. Guinn v. United States, 238 TJ.S. 347 (1915).

However, a recognition of the unavoidable relationship
between color-conscious means and color-conscious ends
does not represent a promotion of frequent, unnecessary or
undisciplined use of race or ethnic lines, even for pro
fessedly benign purposes, in attempting to deal with societal
problems. The University does not quarrel with the propo
sition that lines drawn on the basis of race or ethnic origin
must be approached “somewhat gingerly.” Vulcan Society v.
Civil Service Commission, 490 F.2d 387, 398 (CA2 1973).
The use of such lines in this instance represents, rather,
a judgment that they are a prerequisite to any real effort
to deal with an acute manifestation of the American
dilemma.

It is inconceivable that the Davis faculty could have been
unaware that dangers may inhere in the use of any race or
ethnic line. It is equally inconceivable that any of the nu
merous medical school faculties that have launched counter
part programs could have suffered from such ignorance.
The programs exist nationwide.51 The faculties that have

51. M inorities in M edicine supra note 12, at 11-12, sum
marizing Wellington & Gyorffy, R ep o rt on S u rv e y and_ E va lu a tio n
o f E q u a l E d u ca tio n O p p o rtu n ity in H ea lth P ro fession Schools,
Ts/bl© XX

Sensitivity of faculties to the dangers which may inhere in use
of racial criteria has at times resulted in the employing of euphe
misms. For example, the program at Davis was originally described
as one “to increase opportunities in medical education for dis
advantaged citizens” (R. 160). As experience has accrued, and the
importance of candor has become more evident, there has been
increasingly open acknowledgment of the explicit racially-

41
adopted and implemented them are comprised of men and
women of considerable commitment to moral principle who
are as acntely aware of the risks of race lines as any element
of onr society. For at least the last three decades, educators
have repeatedly been at the center of this country’s efforts
to grapple with the disabilities historically imposed on per
sons because of their color or ancestry. Educators have seen
first hand the damage that racial or ethnic antagonism can
inflict on young people, minority and nonminority alike.
Moreover, the feelings aroused by the use of racial criteria
in an educational context have been brought personally to
the attention of many faculty persons through the concerns
expressed, often vociferously, by disappointed applicants

conscious nature of these programs. For example, the effectiveness
of these programs in attracting minority students to apply to medi
cal school, see note 45, supra, as well as the admissions process,
requires open identification of the racially-conseious element.
Thus, the application form, whieh serves to convey as well as
elicit information, became quite explicit. Many medical schools use
a single form whieh an applicant files centrally through the Ameri
can Medical College Application Service; this form includes
questions asking for an applicant’s self-description in terms of
specific racial and ethnic categories and whether the applicant
wishes' “to be considered as a minority group applicant” (R. 236).
Davis joined the American Medical College Application Service
in 1974, thus adopting the organization’s form as its own (R, 146).

Many programs and activities of the Association of American
Medical Colleges were explicitly race-conscious from, the outset.
See, e.g., the booklet “Minority Student Opportunities in United
States Medical Schools 1969-70” published by that Association,
and subsequent annual editions containing minority enrollment
Q'f'Q +1 c y f i " P a y * a p a Ti sja h A A l

Regardless of the degree of explicitness in nomenclature, as the
Council of Graduate Schools in the United States stated as the
final conclusion of its survey in 1973, “it is clear that for almost
all institutions the students who are recruited into their special
programs are identified as ‘minority’ students rather than ‘dis
advantaged.’ While it is well known that not all minority students
are disadvantaged, for the purposes of institutional policy and
efforts, a minority designation is operationally the most significant
descriptor.” Hamilton, Graduate School Programs for Minority/
Disadvantaged Students 82 (1973).

42
and alumni whose children have not attained admission.
Universities have had and will inevitably continue to have
a deep concern, rooted in both principle and practicality,
about any use of race-conscious measures.

In addition to weighing the concerns prompted by any
reliance on race, even for remedial purposes, the University,
including the Davis faculty, must at the same time carry
out the full scope of its responsibilities. Vested by the state
with authority to determine admissions policies, California
Constitution, Article IX, Section 9, the University and its
faculties must do more than simply decide which individuals
will be allowed the benefits of a medical education. Admis
sions policies play an important role in determining the
nature and quality of the educational experience shared by
those in the student body. Perhaps slightly more indirectly
but surely no less effectively, those policies, in conjunction
with those of other schools, determine the make-up of the
medical profession and its effectiveness in delivering needed
health care services to all parts of the society. Responsible
exercise of the admissions authority vested in medical facul
ties thus justifies, if it does not demand, attention to the
effects of the legacy of racial discrimination and serious
efforts to seek to undo those effects in the areas of educa
tional and professional concern. Recognizing that only
racially-conscious means can work toward those ends, the
Davis faculty, like many others, properly discharged its
responsibilities when it made the judgment that the con
cerns prompted by racial criteria are unavoidable and are
outweighed by the benefits.

Color-conscious special-admissions programs are not
viewed as a permanent fixture of the admissions landscape.
The underlying philosophy of programs like the one at
Davis is that they will eliminate the need for themselves

43
and then disappear.52 The theory of the programs envisions
that the extending of an opportunity for admission to the
most capable minority students in this era will render
unnecessary any reliance on special-admissions for ensuing
generations.53 The programs also reflect a concern that if
affirmative steps are not taken, there is an unacceptable
risk of freezing minorities out of professional life for the
foreseeable future. The programs represent a transitional
means, a short-term necessity in the process of moving
towards a truly free and open multi-racial society.

52. The court below suggested that diminution or ending of
the programs would not be possible, because “human nature sug
gests that a preferred minority will be no more willing than others
to relinquish an advantage once it is bestowed.” 18 C.3d at 62.
At least one professional school, the law school of the University
of California at Berkeley, has already disproved the implication
of this assertion. The faculty in 1975 eliminated Japanese-Americans
from that school’s special-admissions program and reduced the
participation of Chinese-Americans in light of the number of
applicants from these groups gaining admission through general
admissions. See Brief for Sanford H. Kadish, et al., as Amici
Curiae on certiorari in the instant case, p. 25, n. 8.

53. The programs also reflect an educational judgment that
important educational and health care benefits accrue from the
presence of more than an isolated few minority students in medical
schools. If the programs do what they are supposed to, this end
will also be maintained despite the disappearance of the programs.

Of course, the programs may fail. A generation or two from
now the numerical indicators of various minorities may continue
to lag behind other groups (but see Sowell, New Light on Black
I.Q., The New York Times Magazine, March 27, 1977, pp. 56-62)
or only a small number of the members of a particular group may
opt for a medical career. Whatever the legal status of the programs
upon such an ultimate turn of events, the _ possibility of such
results does not argue for ending the experiment now.

II
An Admissions Program Adopted Voluntarily by a State Medi
cal School to Counter the Effects of Pervasive Discrimination
and to Secure the Educational Benefits of Racial and Ethnic
Diversity in a Student Body Accords with the Equal Protection
Clause.

A. A STATE'S USE OF RA CIAL CRITERIA. EVEN FOR A REMEDIAL PURPOSE,
IS UNDENIABLY A CAUSE FOR CONCERN . HOWEVER, AN ACCURATE
ASSESSMENT, RATHER THAN AN EXAGGERATION, OF THE BASIS FOR
CONCERN IS IN ORDER. FURTHERMORE, IDENTIFYING THE REAL BASIS
FOR CONCERN REPRESENTS THE BEGINNING, NOT THE END, OF THE
APPROPRIATE INQUIRY.

Although the Davis program employs racial criteria for
remedial rather than hostile purposes, there can be no deny
ing that the use of such criteria in any context is a cause
for concern. However, a ease of this magnitude calls for an
accurate assessment of the risks that may be raised. Because
this is an area where emotions are easily aroused and labels
seem to develop a life of their own, examination of the real
basis for concern should begin by setting aside matters too
easily, but inaccurately, injected into this case.

1. The Davis program does not resurrect the insidious quotas of another era.
If sets a goal not a quota; there is nothing of constitutional significance in
the use of a number to define the goal.

“Quota” is a label sometimes applied to this case, as by
the court below, 18 C.3d at 62, jjerhaps because that term
stirs such emotions. It evokes memories of an era of delib
erate exclusion by the dominant group of more than a
limited number of members of certain “classes.” Obviously
that is not true in the instant case. Today, the label quota
might signify a floor, a ceiling, or both. None of these
attributes appears in the Davis program, and it is mis
leading to use the term quota with regard to that pro-

45
gram. The Davis program sets a goal, not a quota. There
is no floor below which minority presence is not permitted
to fall. The medical school does not admit unqualified
applicants in order to insure that each entering class con
tains a particular number of minorities. Every student
admitted to Davis is fully qualified. If in a given year less
than sixteen well-qualified Task Force applicants are avail
able for admission to Davis, the goal will not be met. Of
course, given the current demand for medical education, a
shortage of qualified minority applicants promises to be a
rare event. The number of applicants of every background
has grown to such levels that the problem has become one
of turning away qualified minority applicants rather than
being unable to meet the admissions goal.54 Likewise, there

54. As indicated at p. 6, supra, minorities admitted to Davis
through the Task Force program were chosen from a pool of
disadvantaged minority applicants far more than 10 times the
number of those that could be admitted.

The major study of the academic progress of minority students
admitted to medical schools not long after special-admissions
programs had taken substantial effect nationwide reported:

“The most encouraging fact to emerge in the analysis of the
retention/attrition data was that all the raeial groups entering in
1970 and 1971 had retention figures higher than 91 percent at the
end of their first year in medical school. Compared with other
graduate and professional schools, this is very favorable. Moreover,
it should dispel the rumor of exceptionally high attrition among
minority students.

“For the two classes studied, black students had slightly lower
retention rates than did whites or most of the other minorities.
For the 1970 and 1971 entering classes, the retention rates for
blacks were 95 percent and 91 percent respectively, as compared
with 98 percent and 97 percent for white students. These rates for
blacks are similar to the national rates of a decade ago before the
applicant pool was expanded and before maximum, efforts were
made to improve retention rates. I t seems likely that with a concen
trated effort by students, faculty, and administrators and with
the expanding applicant pool noted . . . , future black student attri
tion figures could approximate even more closely the exceptionally
low national average.” Johnson,' Smith & Tarnoff, R ecru itm en t and
Progress o f M in o rity M edical School E n tra n ts 1970-72, 50 J.Med.
B duc. 713, 738 (1975) (footnotes omitted).

46
is no ceiling on minorities; the medical school does not
restrict them to the number coming through special-admis
sions. The total of minority students varies from year to
year, looking at the entire entering class, no matter how
admitted.

The claim of a quota against whites is a red herring;
there is nothing in the Task Force program’s use of a partic
ular number that either adds or detracts from respondent’s
claim. To be sure, a strained argument of a ceiling of 84
and 85 spaces can be made from respondent’s viewpoint
for the years in issue. But acceptance of that argument
would mean that any time a minority student is admitted
by a school treating race as a factor in admissions, there
is a ceiling on whites, even if the ceiling is 99 out of 100.
From respondent’s vantagepoint, it is difficult to see the
significance, in a constitutional sense, of the particular scope
of the special-admissions program. Bespondent’s constitu
tional attack would remain the same if the number admitted
through the challenged program was one in one year, 30 in
the next, 16 in each year, or 16 and then 15. His position is
that any diminution in his chances for admission brought
about by any reliance on racial criteria is forbidden by the
Fourteenth Amendment. The label “quota” comes in on his
side of the case for emotional, rather than analytical, pur
poses.

Goals of increasing minority participation can be defined
in terms of a number or in terms of a range or approxima
tion, such as “approximately 15 to 20 percent . . . if there
are sufficient qualified applicants available.” Admissions
Policy Statement for the Law School of the University of
Washington, § 6, reprinted in appendix to opinion of
Douglas, J., dissenting, in DeFunis v. Odegaard, 416 TT.S.
312, 347 (1974). The choice of a particular numerical goal

47
versus a range or band leads, presumably, to somewhat less
variation from year to year in the number of students enter
ing through special-admissions. But the choice of a partic
ular numerical goal in favor of a range has no independent
significance. Either represents nothing more than a policy
judgment about such matters as how much of the school’s
limited resources should be devoted to the service of one
among its many missions. Indeed, to the extent that the use
of a particular number limits the delegation to an admis
sions committee of authority over such matters, it may be
seen as a virtue.

Finally, the concept of quota is commonly linked to the
evocative label “proportional representation”-—the notion
of insuring representation of each group in the student
body in strict proportion to the percentage it comprises
of the general population. If this is what is meant by quota,
it is equally inapplicable to the instant case. The Davis Task
Force program makes no effort to achieve proportional
representation, as shown by the lack of relationship between
the size of its program (15% to 16% of the entering classes
in the years at issue) and the percentage of minorities in
the California population (approximately 25%) and by the
fluctuating pattern of total minority enrollment at Davis
from year to year. And certainly it cannot be seriously con
tended that the program is intended to achieve proportional
representation in the profession. The disparity between the
numbers of whites and minorities in medicine is so extreme
that it would be generations before even rough parity would
result. If any distinct constitutional issues are raised by
efforts to achieve proportional representation, cf. Hughes
v. Superior Court, 339 U.S. 460 (1950), they are not present
here.

2. The relevant concern in the utilization of racial criteria for remedial pur
poses in admissions is not the infliction of any slur or stigma or the infringe
ment of any right to admission on the basis of relative merit, however defined.

Plainly not presented here is the stigmatic harm to mi
norities inflicted by “measures designed to maintain White
Supremacy.” Loving v. Virginia, 388 U.S. 1,11 (1967). But
it is nevertheless said by some that the Davis program
threatens to depict minorities as incapable of holding their
own. Respondent is plainly in no position to assert this
claim. In any event, it is conjectural, deceptive, and an
utterly unsound basis for deciding this case.65 It overlooks
the insistence that all students be fully qualified, the inten
sity of the demand among all groups for a medical educa
tion, the refusal to lower academic or curricular require
ments in the medical school, and the existence of state and
national licensing examinations as a condition of entry into
the profession. It also overlooks the fact that the program
expresses a judgment by medical educators that minority
students “bring to the profession special talents and views
which are unique and needed.”56

55. It would be absurd to invalidate special admissions programs
out of a misguided concern for effects on minorities, who stand to
gain most from such programs and wrho, as indicated by the amici
in this case, are ardent exponents of the programs. The attitude of
minority students about the supposed stigmatic effects of such
programs is, perhaps, aptly summarized by a recent remark
related to one of the authors of this brief: “Just let me have some
of that establishment stigma.”

Plainly there is no purpose to stigmatize in these programs,
unlike what was presented in cases such as Loving. Indeed, the
programs evidence a societal commitment to the elimination of
racial barriers and the overcoming of the effects of past discrimina
tion. These programs are at the other pole from the official heart
lessness and purpose to degrade and injure that confronted the
Court in the Loving line of cases.

56. Statement of the Executive Council of the Association of
American Medical Colleges, December 16, 1970, quoted in M in ori
ties in Medicine , at 26.

49
If any stigma exists here, it obviously differs radically

from what the Court encountered in cases like Loving. In
such cases, minorities had no choice; they could not escape
the state-imposed brand of inferiority and undesirability. If
it can be viewed as demeaning or degrading to be accepted
for admission to a medical school in today’s world, the
prospective “victim” can simply choose not to apply.
Judging by the number of applicants for special-admissions
programs, minority students plainly do not take seriously
any purported risk of stigma. Any claim of stigma in this
case also exaggerates the importance of admissions circum
stances in the context of an entire career. In that, the
relevant framework, minority students and physicians will
be judged solely by their capabilities and performance.
Moreover, minorities who, once given the opportunity, prove
to themselves that they can perform to the high standards
demanded of all medical students will develop the confidence
that can only come from having met the rigorous require
ments of the medical school curriculum, a confidence that
will serve them well in their professional careers. Nor
should it be overlooked that if minorities are excluded from
medical schools, they obviously won’t have an opportunity
to prove to others that they can perform well in medicine.

If the choice is between a concern for a purported stigma
and essentially all-white medical schools, the answer is
obvious. The most damaging stigma derives from total
exclusion or a merely token admission. It reinforces the
notion that minorities have no place in medical schools, or
in the “best” medical schools, or in the profession. The
demolition of such pernicious and debilitating stereotypes
is an important goal of programs like the one at Davis. The
presence and accomplishments of more than a handful of
minorities in medicine will, in the long run, break down and

50
ultimately destroy such stereotypes. If in the short run
the programs fail to counter existing biases, the “cure” of
outlawing them will only perpetuate the real evil and forfeit
a real remedy for destroying fundamental racial and ethnic
misconceptions in the long run.

Giving weight to racial or ethnic background in the
admissions process is also said to threaten a commitment
by the country to a meritocratic principle of making
choices solely on the basis of individual accomplishment
and ability. The exclusive object, according to this view,
must be to obtain the best possible doctors. Special-
admissions programs purportedly endanger this require
ment, and pose an unacceptable risk to the incentives for
individual achievement. The argument posits that those
students with the highest grade-point averages and MCAT
scores will make the best doctors, that these students will
be deterred from excellence if they see students with lower
formal credentials admitted ahead of others with higher
credentials, and that there will ensue an intolerable loss to
society in productivity and efficiency.

The premises underlying the plea to meritocracy in oppo
sition to the Davis program are false. Even if it were
possible to get agreement on ranking “the best doctors”—
somehow measuring a general practitioner in an under
served rural area against a pathologist in a university
hospital57—the assumption that students with the highest
numerical indicators will necessarily be the best doctors
is completely questionable: MCAT scores and college grade-

57. See A AM C R e v ie w : M edical S chool A dmissions 43-45,
and sources there cited. The A AM C Review quotes the following
from an article, “neither the first nor the last to point out th a t:

“ ‘Presumably the goal of medical education is to produce “good”
doctors of medicine. "What constitutes the good doctor, however,
and how to evaluate the constituent factors remains the most per
plexing problem in the field.’ ” Id. at 44.

51
point averages do not correlate that well even with initial
performance in medical school, let alone with subsequent
clinical training and experience.®8 For another, it rests on
the assumption, or the set of assumptions, that the best
medical education necessarily occurs in the company of
other students selected solely on the basis of formal cre
dentials and without encountering significant diversity, in
particular racial and ethnic diversity, in other students.
These assumptions are, the University submits, patently
false. In any event, nothing in the Constitution compels a
faculty to adopt them as educational policy.

From another perspective, respondent’s view of merit
assumes a hierarchical right to admission, defined by com
parative numerical indicators—that the higher an appli
cant’s test scores and grade-point averages, the more his
or her right to admission. There is no such right. Further
more, even though formal credentials do provide some
degree of reliable prediction, such credentials do not permit
the degree of refined prediction that would be required to
support the proposition that the comparative likelihood of
outstanding performance, even in the pre-clinical years, can
be precisely established by listing applicants in the order
of their formal credentials. The formal credentials simply
are not that reliable as predictors, and medical school
faculties know this.®9

Formal credentials have different roles to play in the
two distinct functions of the admissions process: (i) the
separation of the qualified from the unqualified; and (ii) the
selection for admission from the pool of qualified appli
cants (a pool which, in today’s medical schools, always
dramatically exceeds the number of available spaces).

58. Id. at 43-45, 56-59, 68-69 and sources there cited.
59. See AAMC R e v ie w : Medical S chool A dmissions 43-70,

and sources there cited.

52
Formal credentials can be treated as administrative cutoff
points and thereby considerably reduce the burden of elimi
nating the unqualified from consideration. Under today’s
admissions pressures, the inclination to find shortcuts can
produce over-inclusive results. Due to their formal cre
dentials, some applicants receive no consideration at all
today even though they are qualified.

The role of the formal credentials in the process of
selecting among the pool of qualified is far more limited.
Faculty judgments carry much more weight in this area,
and those judgments encompass much more than the rank
ing of formal credentials, which are important in the
selection phase, but not determinative. In choosing among
those who are qualified, medical school faculties seek to
serve a broad range of goals, such as diversity in the student
body, attempting to find future doctors with a preference
for research, for general practice or for critically needed
specialties, or encouraging the diversion of medical services
from urban to rural areas. It cannot seriously be claimed
that a faculty is blocked from pursuing such goals by any
compulsion to work backward down a list of applicants
ranked solely by formal credentials. The point that relative
formal credentials do not by right control perhaps may be
best illustrated by a hypothetical example. A faculty might
conclude that, after the qualified, not-qualified sorting is
finished, further reliance on formal credentials is unwar
ranted. It might turn to a lottery to allocate the available
spaces among those deemed qualified. It could hardly be
argued that such a system violated any constitutional right
to admission on the basis of relatively high credentials.60

60. For the reasons noted at p. 39, supra, reliance on a lot
tery would not be a viable alternative to the Davis program. White
applicants outnumber minorities to such a degree that minority
representation would be very small, especially after the use of a
lottery became known and whites who don’t apply today stepped
forward. A lottery would also require total rejection of the merit
principle.

53
The University should not be heard to say that merit

does not have an important role to play in medical school
admissions, as elsewhere. To the contrary, it is a paramount
consideration. Indeed, the University believes that the Davis
medical school serves the merit principle by utilizing a
total admissions program, general and Task Force, that in
the judgment of that school produces the mix of students
most directly correlated with the needs of medical education
and of the medical profession. However, even if the prin
ciple were correctly defined as the opponents of these pro
grams would have it, it is simply not true that the principle
has complete hegemony in this country, in constitutional
law, or in medical school admissions. Surely university
regents and faculties, just as the government in this country,
must be able to serve other goals as well. Examples of this
proposition abound, such as veterans’ preferences, efforts
to recruit medical students likely to practice in rural areas,
and preferences for American Indians in federal govern
ment employment. E.g., Morton v. Mancari, 417 U.S. 535
(1974). It is entirely appropriate for a state medical school
to shape its admissions policies to attempt to increase the
number of doctors practicing in inner-city, rural or other

At the Davis medical school, the “benchmark” scores, as they were
called by the court below, 18 C.3d at 42, took into account factors
other than numerical credentials and that some students admitted
under the Task Force program had benchmarks lower than re
spondent. But this does 'not mean that respondent’s application
exhibited greater “merit” than some Task Force students. The
scores that went into the “benchmark” ratings were assigned by two
different groups of people. A passing grade at one school may be a
55 while another uses a 65 or 70 standard, but the discrepancy
carries no significance as to the relative height of the standards at
the two schools. In addition, even if the scales were identical, the
disparity between Task Force and general committee ratings is
scarcely surprising. The numerical indicators constitute a very sub
stantial component of the “benchmark” ratings, and the gap in
those numerical indicators between Task Force and other admittees
could only be expected to be reflected in the comparative “bench
mark” figures.

54
medically-underserved areas and to attempt to provide
its students with the kind of integrated medical education
that will equip them all—minority and white alike—to
perform more capably in a pluralistic society. Indeed, the
state may properly expect such decisions of its medical
schools’ governing bodies. Surely, it is also true that it is
not for the courts to posit a particular view of the merit
principle and then to mandate exclusive adherence to it
by independent entities commissioned by the citizenry to
make decisions on matters of social poliey of abundant com
plexity and minimal susceptibility to fixed answers.

Another of the harms said to support invalidation of the
Davis program is the injury to respondent and those in
his category. No doubt the existence of the Davis program
diminishes the chances that respondent, and those in his
position, will attain admission. But it is diminution, not
exclusion, which is the issue, and the diminution is both
marginal and similar in effect to a host of other factors
beyond the control of an applicant that reduce the odds
of admission. Special-admissions programs do not “fence
out” whites (or imply any racial slur or stigma with respect
to them). Cf. United Jewish Organisations of Williams-
burgh, Inc. v. Carey, 97 S.Ct. 996, 1009-10 (1977) (opinion
of White, J., joined by Stevens, J., and Behnquist, J.).
They do not even significantly reduce the number of whites,
who continue to fill the lion’s share of spaces in medical
schools. Indeed, the growth in the number of spaces in
medical schools since the mid-1960’s, coupled with the
relatively limited scope of special-admissions programs,
means that there are more spaces available to a white
applicant today than there were before there were such
programs.'81 Furthermore, plainly a purpose to harm re
spondent or those in his position (or anyone else) does not

61. See note 43, supra.

55
underlie the program. “The clear purpose with which the
[state] acted . . . forecloses any finding that it acted with
the invidious purpose of discriminating against white [ap
plicants].” Williamsburgh, supra, at 1017 (opinion of Stew
art, J., joined by Powell, J.). The Davis program is not
meant to reward the individuals admitted under it nor to
penalize those who have a lessened opportunity for admis
sion as a result of it. The goal is to contribute to the nation’s
effort to move to a free and open multiracial society.
Unfortunately the objectives of the program cannot be
furthered without effect on some individuals. These effects
are incidental to the program, although obviously not to
respondent.

The pursuit of some societal goals unavoidably displaces
some individuals. The Court explicitly recognized this, as
well as recognizing that such displacement is not, by itself,
determinative, in Morton v. Mancari, 417 U.S. 535, 544-45
(1974) (footnotes omitted):

“Congress was well aware that the proposed prefer
ence [for Indians in employment] would result in
employment disadvantages within the BIA for non-
Indians. Not only was this displacement unavoidable
if room were to be made for Indians, but it was
explicitly determined that gradual replacement of non-
Indians with Indians within the Bureau was a
desirable feature of the entire program for self-
government.”

As in Morton v. Mancari, where the placing of Indians in
positions of responsibility was a “desirable feature” of the
programs, the introduction of minorities to the practice of
medicine, and the concomitant destruction of prototypes,
is a desirable feature of the Davis program. And, as in
Morton v. Mancari, the achievement of that goal leads
unavoidably to the displacement of some whites.

56
Respondent has no constitutional right to receive a

medical school education. San Antonio Independent School
District v. Rodriguez, 411 U.S. 1 (1973). Insofar as injury
to respondent personally is concerned, this case cannot he
distinguished analytically from the case of a family dis
placed from its home by an urban renewal project, or of
an urban applicant whose chances for admission are
reduced by an admissions policy aimed at increasing the
number of doctors likely to practice in remote areas. The
standing requirements of constitutional litigation throw the
spotlight on respondent’s personal disappointment, and
respondent undeniably is an attractive candidate whose
obvious abilities and sincere desire to attend medical school
poignantly demonstrate the hardships of an era when many
are willing and qualified but few are called to serve.
Nevertheless, it would be erroneous to conclude that the
displacement of respondent has any independent constitu
tional significance, given that, as often true when com
pelling societal goals are pursued, it is unavoidable to
achieve the desired ends.62

Technically speaking, it is inaccurate to describe the
injury to respondent as “displacement.” Stated precisely,
the injury to him is a diminished opportunity to obtain a
benefit that he has not previously enjoyed; the state has not

62. Some have suggested that it is not entirely accurate to view
those in respondent’s position as wholly innocent victims of a re
form program and that the correct characterization is, in essence,
incidental beneficiaries of past discrimination. E .g ., Greenawalt,
J u d ic ia l S c ru tin y o f “B e n ig n ” R acia l P reference in L aw School
A dm issions, 75 Col.L .R ev . 559, 585 (1975) :

. . [Ijnsofar as it makes sense to assume that without dis
crimination many more blacks would qualify without prefer
ence, a state might assume that borderline whites who are
admitted in the absence of preferential policies are ‘indirectly
benefitting’ from discrimination of which they are completely
innocent. If they are excluded because of preferential policies,
they may be put in the position they would have been in if
the discrimination had never occurred.”

57
taken away from him a position already achieved, nor has
it denied him an advancement to which, in the absence of a
remedial scheme, he could otherwise show clear entitlement.
In the context of remedial use of racial criteria, a court
might, as has the Second Circuit, draw a distinction be
tween a hiring preference, which “deals with the public at
large, none of whose members can be identified individually
in advance. .. and a preference which affects directly “a
small number of readily identifiable candidates for promo
tion. . . .” Kirkland v. Department of Correctional Services,
520 F.2d 420, 429, reh. en banc denied, 531 F.2d 5 (1975),
cert, denied, 97 S.Ct. 73 (1976). That court upheld the
former type of remedy, but ruled out the latter on the
ground that it actually displaced individual whites easily
identifiable in advance who, years before, had made career
commitments with expectations of advancement that would
be frustrated by the challenged racial remedy. Ibid. Whether
the difference in disruption between hiring and promotion
preferences supports the legal distinction drawn by the
Second Circuit—a matter the Court need not reach in this
case—the possible invalidity of a promotion preference is
of no benefit to respondent. The effects of the Davis
program more closely resemble those of the hiring prefer
ence upheld in Kirkland than the effects of the promotion
preference struck down. From the viewpoint of the Davis
program, respondent was a member of “the public at large,
none of whose members can be identified individually in
advance.” Ibid.

3. The relevant basis for concern is a potential for the arousal of racial aware
ness. Identifying that concern represents the beginning, not the end, of the
requisite analysis.

The relevant concern to explore and weigh in assessing
the Davis program is the risk of reinforcement of color
consciousness in a society that is striving to put behind it

58
tendencies to make judgments about the relative worth
of individuals on racial or ethnic bases. Allocating benefits
pursuant to a process that employs racial criteria is simply
not like using other referents. In part, this is because
extending benefits to minorities for any reason, including
an effort to alleviate past burdens imposed on them, arouses
feelings of simple racism—the animus of a few members of
the majority against discrete and insular minorities and
the desire to preserve a position of permanent subordina
tion for such groups.63 This form of ignorance, which the
Court has confronted in virulent form in such cases as
McLaughlin v. Florida, 379 U.S. 184 (196.4), and which the
country has made great strides in putting behind it,64 is

63. See M in orities in Medicine , 10, quoting Everett Cherring-
ton Hughes, April 1958, in Ms introduction to Reitzes, Negros and
Medicine xxxi (1958) :

“We must not overlook the possibility that the very hangover
from some of the disabilities of Negro Americans may allow for a
resurgence of prejudice and prejudicial action. If, as seems the
case, a good many more Negroes could get into medical schools than
now qualify, it is easy for people to say, ‘I told you so!’ and to fall
back into old practices. One of our most serious questions of social
policy is, then, th is: Shall we merely try hard to act as if race had
never existed? Or shall we undertake to remove by special action
the handicaps left over from our long history of racial discrimina
tion? Some Americans will argue that the first course is better; it
would be the old-fashioned, laissez-faire, liberal course. Others will
argue that, even at the risk of what might be called counter-dis
crimination, we must reduce the handicaps, provided we do not
reward mediocrity.”

64. The stereotyping that accompanies past modes of thinking
with regard to minorities sometimes dies hard, despite the best
efforts to overcome it. An example is the conception of some that
respondent is more deserving of admission to medical school than
minorities because he tried so hard and wanted so much to attain
admission. No doubt respondent is a sincere and committed appli
cant who has bent enormous effort to the goal of admission. But the
notion that the successful minority applicants didn’t try as hard
as respondent to be able to attend medical school or weren’t as eager
to go must be resisted, if it is based on nothing more than a ten
dency to view minorities as less motivated than whites or as oper
ating on the premise that the world owes them a living. Destruction
of such harmful stereotypical thinking about minorities is an im
portant goal of the Davis program.

59
irrelevant to the instant case and may be put to one side.
In part, feelings are aroused by the remedial use of racial
criteria because such an action is viewed by some as public
acknowledgement of past mistreatment of discrete and
insular minorities. No one likes to be reminded, particularly
by an official entity, of a history of societal misbehavior—
even if, or perhaps particularly if, the individual reminded
had nothing to do with past discriminatory acts. But this
emotional resistance to unhappy memories, like simple
racism, must not be the basis for precluding those univer
sities that voluntarily choose to do so from taking the steps
they deem necessary to counter the lingering effects of past
discrimination and to secure the benefits of a diverse stu
dent body.

What remains is a principled concern that “any legal
classification by race weakens the government as an educa
tive force.”655 As a society we are striving to make real Mr.
Justice Jackson’s ideal that race or color be viewed
as a “neutral fact . . . constitutionally an irrelevance.”
Edwards v. California, 314 U.S. 160, 185 (1941) (Jackson,
J., concurring). Any reliance on color as a factor may
impede progress to that goal. Although, for the reasons
developed above, the University submits that other sup
posed dangers from the Davis program are not in fact
presented, are illusory, or on analysis prove to be irrele
vant or of minimal weight,66 it does not deny that there is a

65. Kaplan, Equal Justice in an Unequal World, 61 Nw.L.Rev.
363,379 (1966).

66. Conceivably a special admissions program could by design
or practice single out a particular ethnic group for exclusion in
order to make room for special admits, rather than distributing its
burdens among all groups not favored. Such a model plainly does
not describe the Davis program'. If such a program existed, obvi
ously it would be proper to subject it to the most stringent judicial
scrutiny, and the program should not survive review. But that does
not warrant a judicial ban against all color-conscious special admis
sion programs.

60
residuum of legitimate concern for the arousal of racial and
ethnic awareness. However, the identification of this justi
fiable concern and a recognition that it must be dealt with
in the instant case represents the beginning, not the end,
of the requisite legal inquiry. Failure to perceive this point
represents one of the errors committed by the court below.

Having identified the race-related risk truly at issue in
this case, it is now appropriate to turn to whether that risk
requires judicial invalidation of the Davis program. As
demonstrated below, the cases plainly establish the permis
sibility of the program voluntarily undertaken by the Davis
medical school. However, before turning to that demonstra
tion, the risk really at issue should be put in proper per
spective. The medical school was not writing on a clean
slate. It did not arouse color consciousness where none had
existed before. It acted against the background of an un
healthy and debilitating race consciousness that, despite the
enormous strides made in our lives, our society has not yet
erased. To an unfortunate degree, stereotypical thinking
persists that it is unusual for a minority to be a physician.
The Davis faculty sought to attack this lingering and
negative color awareness directly with the best tools at
its disposal. To produce a true demolition of color-
consciousness in the long run, it employed color-conscious
means in the short run. It took an essential step towards
ending the life of the sterotype that minorities are not
up to a professional role. It chose to recognize their
potential to be qualified and productive physicians. In
short, it saw these students as having ordinary human
potential. This recognition by the Davis faculty is the an
tithesis of counter-educative. It is pro-educative, in the most
fundamental sense.

B. THE DECISIONS OP THIS COURT AND OTHER COURTS SUSTAINING
THE USE OP RACIAL CRITERIA TO ENHANCE RACIAL DIVERSITY IN
SCH O O LS AND TO COUNTER THE EFFECTS OF DISCRIMINATION ESTAB
LISH THAT THE AROUSAL OF RACIAL AWARENESS INEVITABLY PRO
DUCED BY SPECIAL-ADMISSIONS PROGRAMS DOES NOT RENDER THEM
INVALID.

The Court has explicitly recognized that harm may result
from an arousal of racial awareness; state action designed
solely to achieve such a harmful effect is forbidden by the
Fourteenth Amendment. Anderson v. Martin, 375 TJ.S. 399
(1964). Yet, despite its recognition that enhanced color-
consciousness may be harmful, the Court has approved, not
forbidden, the employment of racial criteria to increase
racial diversity in schools and to counter the effects of dis
crimination. E.g., United States v. Montgomery County
Board of Education, 395 TJ.S. 225 (1969). Cf. Franks v. Bow
man Transportation Co. Inc., 96 S.Ct. 1251 (1976). Such
cases demonstrate that “the history of equitable decrees
utilizing racial criteria fairly establishes the broad prin
ciple that race may play a legitimate role in remedial
policies.” United Jewish Organisations of Williamsburgh,
Inc. v. Carey, 97 S.Ct. 996, 1013 n. 2 (1977) (Brennan, J.,
concurring). Indeed, in the school desegration cases, the
Court has emphasized that racial remedies are inevitable
in pursuing the desired ends:

“Just as the race of students must be considered in
determining whether a constitutional violation has
occurred, so also must race be considered in formulat
ing a remedy. To forbid, at this stage, all assignments
made on the basis of race would deprive school author
ities of the one tool absolutely essential to fulfillment
of their constitutional obligation to eliminate existing
dual school systems.” North Carolina State Board of
Education v. Swann, 402 TJ.S. 43,46 (1971).

See also McDaniel v. Barresi, 402 TJ.S. 39, 41 (1971).

62
This Court’s repeated approval of teacher assignments

by race to counter the effects of discrimination in school
systems presents a pointed illustration that race-conscious
remedies today are often a key to the irrelevance of race
tomorrow. E.g., Davis v. Board of School Commissioners,
402 TT.S. 33, 35 (1971); United States v. Montgomery County
Board of Education, supra. When a black teacher is ordered
into a previously all-white school, there can be little doubt
about immediate arousal of racial awareness. Many if not
most children in that teacher’s class will confront daily and
at close range, perhaps for the first time, someone from
another race holding a position of authority and respect.
In time, racial awareness will fade. It will become common
place for the students in the teacher’s class to view the
person before them as first a teacher, a professional, and
only incidentally as a black. Progress will have been made
in eroding a damaging racial stereotype. The direct analogy
to the process involved in the Davis medical school program
need not be belabored.

To be sure, the school desegregation cases in which this
Court has directed the use of racial remedies have involved
de jure discrimination, which is absent in this case. But the
significance of de jure discrimination in those eases relates
solely to the limits on the coercive remedial powers of a
federal court. Such powers are properly invoked only to
correct the effects of a constitutional violation, and under
this Court’s rulings only de jure discrimination violates the
Equal Protection Clause. E.g., Keyes v. School District
No. 1 , 413 U.S. 189 (1973). The issue posed here is not what
a federal court could order the Davis faculty to do, but what
that faculty may do voluntarily. The constitutionality of the
University’s voluntary choice of racial criteria to obtain
the educational benefits of a multi-racial student body was

63
explicitly acknowledged by this Court in Swann v. Charlotte-
Mecklenburg Board of Education, 402 IT.S. 1,16 (1971):

“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 soci
ety each school should have a prescribed ratio of Negro
to white students reflecting the proportion for the dis
trict 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 viola
tion, however, that would not be within the authority
of a federal court.”

Accord, North Carolina State Board of Education v. Swann,
supra, 402 IT.S. at 45. Moreover, the Court, recently held
that entities other than the judiciary may employ race-
sensitive means to remedy the effects of generalized soci
etal discrimination without a prior finding of a past de jure
violation of the Fourteenth Amendment. United Jewish
Organizations of Williamsburgh, Inc. v. Carey, supra. As
Mr. Justice White declared, when speaking for a plurality
of the Court in that case, “The permissible use of racial
criteria is not confined to eliminating the effects of past
discriminatory districting or apportionment.” 97 S.Ct. at
1007.

Numerous state and lower federal courts have upheld the
utilization of racial criteria to increase racial diversity in
schools and to counter the effects of discrimination, despite
an absence of de jure discrimination. In the context of vol
untary efforts by state and local officials to overcome the
effects of de facto discrimination in schools, judicial ap
proval of race-conscious means has been unanimous. See,
e.g., Spring field School Committee v. Barksdale, 348 F.2d
261 (CA11965); Offermann v. Nitkowski, 378 F.2d 22 (CA2
1967); Wanner v. County School Board, 357 F.2d 452 (CA4

64
1966); Fuller v. Volk, 250 F.Supp. 81 (D.N.J. 1966); State
ex rel Citizens Against Mandatory Bussing v. Brooks, 80
Wash.2d 121, 492 P.2d 536 (1972); Tometz v. Board of Edu
cation, 39 I11.2d 593, 237 N.E.2d 498 (1968); School Commit
tee v. Board of Education, 352 Mass. 693, 227 N.E.2d 729
(Mass. 1967) appeal dismissed 389 U.S. 572 (1968); Booker
v. Board of Education, 45 N.J. 161, 212 A.2d 1 (1965);
Balaban v. Rubin, 14 N.Y.2d 193,199 N.E.2d 375, 250 N.Y.S.
2d 281, cert, denied 379 U.S. 881 (1964); Morean v. Board
of Education, 42 N.J. 237, 200 A.2d 97 (1964). There are a
number of reported decisions reaching the issue of whether
racially-alert special-admissions programs contravene the
Equal Protection Clause. The courts in these cases, except
the court below, have upheld the constitutionality of such
programs. Alevy v. Downstate Medical Center, 39 N.Y.2d
326, 348 N.E.2d 537, 384 N.Y.S.2d 82 (1976); DeFunis v.
Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), vacated as
moot, 416 U.S. 312 (1974); Rosenstock v. Board of Gover
nors, 423 F.Supp. 1321 (M.D.N.C. 1976).

Apart from the explicit rejection of the notion in Swann,
it would be nonsense to conclude that an absence of de jure
discrimination blocks the Davis faculty from voluntarily
adopting race-conscious means to promote racial and ethnic
diversity in the student body. The Court has mandated the
employment of racial remedies in the school desegregation
cases. The law is not so absurd as to command a remedy
that is itself unconstitutional. Furthermore, it would be
worse than irrational to restrict the use of color-conscious
admissions programs to medical schools with a history of
purposeful discrimination. Not only would this eliminate
such programs only in the schools likely to adopt them vol
untarily, it would grant authority to use racial criteria only
to the very institutions that have shown a propensity to
abuse racial classifications in the past.

65
The court below ignored this Court’s pronouncement in

Swarm, supra, about the latitude accorded faculties to in
crease voluntarily racial pluralism in schools. It attempted
to distinguish the school desegregation cases on the theory
that the employment of racial remedies in those cases in
jured no one. It dismissed on two grounds the view that
court-ordered bussing injures the affected white children—
the absence of a right to attend a segregated school system
and the notion that the burden of being bussed does not
measure up to the injury of a reduced chance of admission
to medical school. 18 C.3d at 46-47.

Respondent has no greater right to attend an all-white
school than did the white children in the school desegrega
tion cases. Beyond that, the accuracy of the California
court’s assessment of the injury to a young child bussed
away from a neighborhood school relative to the injury to
an adult whose chances for admission to professional school
are diminished slightly is not beyond dispute. Of., Keyes
v. School District No. 1, 413 U.S. 189, 249-250 (1973)
(separate opinion of Powell, J.). In any event, to weigh
the two harms is only to say that there are degrees of
injury. The constitutionally significant fact is injury, of
whatever degree, in both cases. If attention to race were
barred by any hard-and-fast rule under the Equal Protec
tion Clause, it would be as unconstitutional in the one case
as the other.

But there is another aspect to the school desegregation
decisions of this Court that render them indistinguishable
from the instant case, as well as determinative authority
for the constitutionality of the challenged programs, if in
jury to individual whites is to be viewed, as by the court
below, as a controlling issue. In upholding orders compelling
the desegregation of faculties, those cases have approved
the use of racial criteria that injure individual whites to a

66
degree that may exceed the injury to individual whites
caused by special-admissions programs. For example, in
Carr v. Montgomery County Board of Education, 289 F.
Supp. 647 (M.D.Ala. 1968), the district court ordered
faculty desegregation, pursuant to a fixed racial ratio, and
ordered that the ratio be accomplished by hiring and assign
ment. Id. at 654. (The ratios in Carr have been maintained
for a number of years. See 377 F.Supp. 1123, 1133, 1143
(M.D.Ala. 1974)). This order, which requires hiring by race
and which, inevitably, produces instances in which white
teaching applicants are rejected in favor of blacks and in
which white teachers are compelled, on pain of dismissal,
to teach in schools they would not attend voluntarily, was
affirmed by this Court. United States v. Montgomery County
Board of Education, supra. See also Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. at 19-20 ; Davis
v. Board of School Commissioners, 402 U.S. at 35. Dis
appointed white teaching applicants in such cases are in a
position indistinguishable from that of respondent in this
case.

Rejection of the applications of some whites due to
special-admissions programs is unavoidable. The goals of
enhancing racial diversity in schools and countering the
effects of discrimination cannot be furthered without some
reduction in the number of whites admitted, and certainly
the reduction in overall white enrollment caused by those
programs has not been extreme. The school desegregation
cases stand for the proposition that injury to some whites
unavoidably prompted by the pursuit of race-conscious
remedial ends does not contravene the Equal Protection
Clause. See also Frantts v. Bowman Transportation Co.,
Inc., supra. The federal courts of appeals have upheld this
proposition in a variety of contexts, including teacher pro
motion, Porcelli v. Titus, 431 F.2d 1254 (CA3 1970), cert.

67
denied 402 U.S. 944 (1971), and employment eases, including
those brought directly under the Fourteenth Amendment.
E.g., Vulcan Society v. Civil Service Commission, 490 F.2d
387 (CA2 1973); NAACP v. Alien, 493 F.2d 614 (CA5
1974); Carter v. Gallagher, 452 F.2d 315 (CA8) (en banc)
cert, denied 406 U.S. 950 (1972).87

67. Race-conscious remedies have also been upheld by the lower
federal courts under Title YII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) e t seq. and under Executive Order 11246, 30 F.R.
12319, as amended, 32 F.R. 14303, 34 F.R. 12985, requiring federal
contractors to take affirmative action to recruit and employ racial
minorities. See, e.g., P a tterson v. A m erican Tobacco C om pany, 535
F.2d 257, 273-74 (CA4), cert, denied, 97 S.Ct. 314 (1976):

“Uniformly . . . Title Y II has been construed to authorize
district courts to grant preferential relief as a remedy for un
lawful discrimination. B ios v. E n terp r ise Association S team -
fitters Local 638 o f U .A ., 501 F.2d 622, 628-31 (2d Cir. 1974);
TJnited S ta te s v. N . L . In d u str ie s , Inc ., 479 F.2d 354, 377 (8th
Cir. 1973); S o u th e rn Illin o is B u ild ers A ssociation v. Ogilvie,
471 F.2d 680, 683-86 (7th Cir. 1972); U nited S ta tes v. Iro n
w orkers Local 86, 443 F.2d 544, 552-53 (9th. Cir. 1971) [cert,
denied, 404 U.S. 984 (1971)]; U nited S ta tes v. In terna tiona l
B rotherhood o f E lec tr ica l W orkers, Local No. 38, 428 F.2d
144, 149-51 (6th Cir. 1970) [cert, denied, 400 U.S. 943
(1970) ]; Local 53 o f In te rn a tio n a l A ss ’n o f H ea t & F rost I. &
A . W orkers v. V ogler, 407 F.2d 1047, 1053-54 (5th Cir. 1969).
This construction of the Act is in harmony with other cases
which authorize preferential relief from unlawful employ
ment discrimination in situations where Title YII is not appli
cable. A ssocia ted G eneral C ontractors o f M assachusetts, Inc.
v. A ltsh u le r , 490 F.2d 9, 16-18 (1st Cir. 1973) [cert, denied,
416 U.S. 957 (1974)]; C arter v. Gallagher, 452 F.2d 315, 330
(8th Cir. 1971) [cert, denied, 406 U.S. 950 (1972)]; C ontrac
tors A ssociation o f E a stern P ennsy lvan ia v. Secretary o f L a
bor, 442 F.2d 159, 172, 176-77 (3d Cir. 1971) [cert, denied,
404 U.S. 854 (1971)]. In all, eight circuits have approved
some form of temporary preferential relief for discriminatory
employment practices. . .

In the Executive Order cases, utilization of remedial racial cri
teria has been approved by the courts of appeals in the absence of
findings that the particular companies or unions compelled to take
affirmative action have themselves committed past illegal acts. E.g.,
A ltsh u le r and C ontractors Association, both cited in the quotation
from P atterson , supra. With regard to the concept of “color-blind
ness,” the court in A ltsh u le r stated:

“I t is by now well understood . . . that our society cannot
be completely colorblind in the short term if we are to have a

68
In sum, decisions of this and other Courts in the context

of school desegregation and elsewhere sustain the use of
remedial racial criteria for the purposes of the Davis pro
gram, despite the unavoidable arousal of racial awareness
prompted by such means. The judgment below must be
reversed on the basis of those decisions alone. In the
remainder of this brief, the University will demonstrate
that other lines of authority lead to precisely the same
result.

C. THE STANDARD OF STRICT JU D ICIAL SCRUTINY IS INAPPLICABLE IN
THIS CASE.

In 1938 the Court recognized that “prejudice against dis
crete and insular minorities may be a special condition
which tends seriously to curtail the operation of those polit
ical processes ordinarily to be relied upon to protect minor
ities, and which may call for a correspondingly more
searching judicial inquiry.” United States v. Carotene Prod
ucts Co., 304 U.S. 144, 152 n.4. Proceeding from that
premise, the Court subsequently, with some exceptions,
Korematsu v. United States, 323 U.S. 214 (1944); Hirabay-
ashi v. United States, 320 U.S. 81 (1943), has applied a

colorblind society in the long term. After centuries of viewing
through colored lenses, eyes do not quickly adjust when the
lenses are removed. Discrimination has a way of perpetuating
itself, albeit unintentionally, because the resulting inequalities
make new opportunities less accessible. Preferential treatment
is one partial prescription to remedy our society’s most in
transigent and deeply rooted inequalities.” 490 F.2d at 16.

Cf. Brooks v. Beto, 366 F.2d 1, 24 (CA5 1966) :
“Although there is an apparent appeal to the ostensibly

logical symmetry of a declaration forbidding race considera
tion in both exclusion and inclusion, it is both theoretically
and actually unrealistic. Adhering to a formula which in
words forbids conscious awareness of race in inclusion post
pones, not advances, the day when this terrible blight of racial
discrimination is exterminated.”

69
standard of strict judicial scrutiny to classifications
designed to single out, to stigmatize, and to harm discrete
and insular minorities. E.g., Loving v. Virginia, 388 U.S. 1
(1967); McLaughlin v. Florida, 379 U.S. 184 (1964). Pre
cisely because racial and ethnic minorities historically have
been isolated and often denied an effective voice in major-
itarian processes, the Court has shown special solicitude
for the protection of such groups from measures intended
to “reflect racial animosity.” Oyama v. California, 332 U.S.
633, 663 (1948) (Murphy, J,, concurring).

The force of the Court’s commitment to the concerns of
those insular groups with a history of mistreatment and
exclusion from the mainstream of political life has
occasionally prompted language of great power. Ironically,
the most powerful language appears in two cases for which
the Court has been sharply criticized for failing to extend
adequate protection to a contemporaneously unpopular
minority. Korematsu, supra; Hirabayashi, supra. In Kore-
matsu, the Court declared that “all legal restrictions which
curtail the civil rights of a single racial group are immedi
ately suspect.” 323 U.S. at 216. In Hirabayashi, it pro
claimed that “ [djistinctions between citizens solely becaxise
of their ancestry are by their very nature odious to a free
people whose institutions are founded upon the doctrine of
equality.” 320 U.S. at 100.

The Court’s declarations in Korematsu and Hirabayashi,
coupled with the first Mr. Justice Harlan’s description of
our Constitution as “color-blind,” Plessy v. Ferguson, 163
U.S. 537, 559 (1896) (Harlan, J., dissenting), are essential
clauses in an evolving charter of freedom from invidious
racial discrimination in this country. They are necessary
guideposts on the long and as yet unfinished road to the
end of subordination of historically subjugated and ali
enated minorities. But, lihe clauses in a constitution, those

70
declarations cannot be read out of context, for “only a mis
conception of the past leads to the conclusion that it imposes
. . . an obligation of ‘color-blindness.’ ”fl8 This Court has
refused to declare race lines per se invalid. E.g., Loving v.
Virginia, supra; McLaughlin v. Florida, supra. The cases
subjecting racial classifications to strict judicial scrutiny
uniformly have arisen in the context of efforts to maintain
or worsen the position of subordination and degradation of
discrete and insular minority groups. The very reasons that
led to the erection of high judicial barriers in cases like
Loving and McLaughlin demonstrate the inappropriateness
of that approach here. The Davis program and similar ad
missions programs elsewhere have as one of their principal
purposes and direct effects the alleviation, in a modest
but important way, of the suppression of racial minorities.
Furthermore, those who bear the burdens of such programs
are neither members of groups especially susceptible to
race-related injuries nor in need of protection from the
results of normal political processes. The Davis program
represents “no racial slur or stigma with respect to whites
or any other race. . . . ” United Jewish Organisations of Wil-
liamsburgh, Inc. v. Carey, 97 S.Ct. at 1009 (opinion of
White, J.). The program “is cast in a remedial context

68. Sandalow, Racial Preferences in Higher Education: Politi
cal Responsibility and the Judicial Role, 42 TJ.Chi.L.Rbv. 653, 666
(1975). See Freund, Constitutional Dilemmas, 45 B.U.L.Rev. 13,
20 (1965) (footnotes omitted) :

“Can race or color be made the basis of a legislative classifica
tion? The most important point to be made in considering
this question is that the color-blind test is not a term of art
found in the Constitution but a phrase from the first Mr.
Justice Harlan’s dissenting opinion in Plessy v. Ferguson,
or more precisely a phrase taken by him from the brief filed
in that case by the gifted novelist-lawyer Albion Tourgee.
The phrase became a liberal rallying cry, like liberty of con
tract in the early days of free enterprise, and each of them,
if pushed to a drily logical extreme can become the reverse
of liberal.”

71
with respect to a disadvantaged class rather than in a set
ting that aims to demean or insnlt any racial group.” Id.
at 1012 (Brennan, J., concurring).

When race-sensitive means are employed against
historically disfavored racial minorities, strict judicial
scrutiny, an exception in the general scheme of judicial re
view, is appropriate because of the peculiar susceptibility
of such groups to race-related harms. In this country such
groups have been subjected to a network of restrictions
and prejudices, to a matrix of repeated subjection to dis
crimination depicting them as inferior. Actions directed
against them, or benefits denied them, on racial or ethnic
grounds expand or intensify that matrix, compound the
feeling of frustration at every level of life, and inflict
psychological injury. Furthermore, racial minorities tradi
tionally have been alienated from others; they have been
unable to form unions with other groups to bring an end
to mistreatment through the political organs of govern
ment.69 This Court has recognized both elements in its
definitive statement of the attributes of a suspect class as
one “saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to
such a position of political powerlessness as to command
extraordinary protection from the majoritorian political
process.” San Antonio Independent School District v. Rod
riguez., 411 U.S. 1,28 (1973).

Obviously respondent and those in his position possess
none of the attributes that have led the Court to define

69. Cf. Weehsler, Toward Neutral Principles of Constitutional
Law, 73 H aev.Li.Rev. 1, 33 (1959) :

“[Brown v. Board of Education] must have rested on the
view that racial segregation is, in principle, a denial of equal
ity to the minority against whom it is directed; that is, the
group that is not dominant politically and, therefore, does
not make the choice involved.”

72
suspect classes and to trigger strict scrutiny. Indeed, to
apply the suspect classification doctrine to defeat the Davis
program would “stand the equal protection clause on its
head.”7'0 Respondent has suffered a diminished chance of
obtaining a position in medical school, but the program he
attacks “does not add to the burdens of an already disad
vantaged discrete minority.” Califano v. Goldfarb, 97 S.Ct.
1021, 1033 (1977) (separate opinion of Stevens, J.). With
out minimizing the significance to respondent of not attain
ing admission, it remains true that his non-admission does
not carry with it the stigmatic and degrading injury suf
fered by the discrete and insular groups singled out by the
state in cases like Loving. The injury to respondent is an
isolated incident in his life. It is not a reinforcement of
the pervasive discrimination that members of alienated
minority groups encounter constantly and repeatedly
throughout their lives. It will not engender in respond
ent’s own mind any belief that he is innately inferior,
nor will it prompt others to so view him. There is not, in
short, invidious discrimination against respondent.

Moreover, the spectrum of groups not included within
special-admissions programs have a realistic recourse to
political processes to protect themselves. “The majority
needs no protection against discrimination. . . .” Hunter

70. Redish, Preferential Law School Admissions and the Equal
Protection Clause, 22 Tj .C.L.A.L.Rev. 343, 357 (1974). See Alevy v.
Downstate Medical Center, 39 N.Y.2d 326, 334-35, 348 N.E.2d 537,
544-45, 384 N.Y.S.2d 82, 89 (1976) :

“I t would indeed be ironic and, of course, would cut against
the very grain of the amendment, were the equal protection
clause used to strike down measures designed to achieve real
equality for persons whom it was intended to aid. We reject,
therefore, the strict scrutiny test for benign discriminations
[in medical school admissions] as, in our view, such an appli
cation would be contrary to the salutary purposes for which
the Fourteenth Amendment was intended.”

73
Erickson, 393 U.S. 385, 391 (1969).71 The majority, or,

putting it another way, groups that historically have com
monly coalesced into political majorities, have a life-or-
death control over special-admissions programs. Unlike the
insular racial groups accorded suspect-class status in the
Court’s strict scrutiny cases, respondent’s group has con
trol over its own political destiny. Thus, unlike the Loving
line of cases, it would be a corruption, rather than an
application, of the appropriate role of judicial review to
decide this case under a standard of strict judicial scrutiny.
It would also be at war with the central purpose of the
Fourteenth Amendment—a special solicitude for amelior
ating the hardships visited on blacks. See Bickel, The
Original Understanding and the Segregation Decision, 69
Harv.L.Bev. 1, 60 (1955).

A fundamental error of the court below was its treatment
of the injury to respondent as triggering strict scrutiny.
This equates the injury to respondent with the injury
suffered by a member of a traditionally alienated minority
group when the state takes action against that group.
Obviously this is incorrect. Paradoxically, the California
court recognized that there was no invidious, stigmatic
harm to respondent like the harm appearing in this Court’s
strict-scrutiny, race-classification cases. 18 C.3d at 50-51.
The absence of such harm and the absence of any frustra
tion of normal political processes renders strict scrutiny
inapplicable. Such an exertion of judicial power becomes
aberrational and deeply troubling when those conditions
do not obtain. Whatever standard of review properly con
trols in this case, it is not strict scrutiny.72

71. See Elv, The Constitutionality of Reverse Racial Discrimi
nation, 41 U.Ch i.L.Rev. 723, 735 (1974).

72. Infringement of a fundamental right, like injury to a sus
pect class, will also trigger strict judicial scrutiny. However, that

D. REGARDLESS OF THE W EIGHT OF THE BURDEN OF JUSTIFICATION.
THE DAVIS PROGRAM DOES NOT CONTRAVENE THE E^UAL PROTEC
TION CLAUSE.

1. The means chosen by the medical school are rationally related to the
desired ends, and under this Court's precedents the challenged program is
therefore constitutional.

The Davis program does not constitute invidious racial
discrimination, does not injure a suspect class, and does not
infringe a fundamental right. It follows that the case is
governed by “the traditional standard of review, which
requires only that the State’s system be shown to bear
some rational relationship to legitimate state purposes.”
San Antonio Independent School District, supra, 411 U.S.
at 40.

The means chosen by the medical school bear not only a
rational relationship to the desired ends, they are the means
most directly related to those ends, indeed, the only effective
means. Since the fit between means and ends is as tight as
possible, and since the state ends are not only legitimate
but extraordinarily compelling, there can be little doubt
that the University prevails under the traditional standard
of review. E.g., McGowan v. Maryland, 366 U.S. 420, 426
(1961).

That the rational-basis standard of review governs this
case is demonstrated by the Court’s treatment of race
conscious remedies in the school desegregation cases, supra,
which have never subjected the employment of such reme-

staircase to upper tier review is also closed in this case. Respondent
has no constitutional right to a medical school education. San An
tonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
Nor can respondent reach the upper tier by claiming infringement
of a constitutionally-protected right against racial discrimination
in medical school admissions. The Fourteenth Amendment_shelters
him from invidious discrimination, not simply discrimination. The
discrimination against respondent is not invidous for the verj^ rea
sons that respondent does not fall into a suspect class.

75
dies to a test of strict scrutiny. The applicability of the
traditional equal-protection standard is also demonstrated
by other precedents. This Court has applied the traditional
standard of review to race-sensitive measures designed to
remedy deprivations suffered by alienated minorities, even
though such measures would invoke the most stringent
judicial scrutiny if used for an opposite and invidious pur
pose. Lau v. Nichols, 414 U.S. 563 (1974); Katsenbach v.
Morgan, 384 T7.S. 641 (1966). Cf. Morton v. Mancari, 417
TJ.S. 535 (1974). These cases reject strict scrutiny, which
to date this Court has never applied to racial criteria em
ployed for remedial purposes, because the rationale for its
application is absent when the program at issue assists
rather than harms discrete and insular minorities. The
point is, perhaps, best illustrated by comparing the stand
ard of review applied in United Jewish. Organisations of
Williamsburgh, Inc. v. Carey, supra, with the standard that
would have governed if Williamsburgh had involved at
tempted dilution of black voting strength.

The “wide scope of discretion” (McOotvan v. Maryland,
366 TJ.S. at 425) the Fourteenth Amendment leaves to the
states in the realm of education further demonstrates the
applicability of the rational-basis test. San Antonio Inde
pendent School District, 411 IT.S. at 42-43. Formulating
admissions standards is an integral part of establishing
educational policy. Delegation of the duty to fashion educa
tional policies commonly flows from state legislatures to
university governing boards, regents and faculties. In Cali
fornia, the University’s authority over educational policy
and admissions is given directly by the state constitution.78
It is, of course, irrelevant to this Court how California

73. Cal. Const, art. IX, § 9.

76
chooses to distribute its governmental authority. Sweesy
v. New Hampshire, 354 U.S. 234, 256 (1957) (Frankfurter,
J., concurring). The relevant point is that the citizens of
the state have chosen the University as the entity with
responsibility for grappling with the intractable problems
of choosing the optimum mix of students for the maximum
benefit of education in the school, of contribution to the
profession, and ultimately to the society. Intrusive judicial
review interferes drastically with that process of democratic
government. Such interference should be reserved for the
comparatively rare instances wdien circumstances compel
it, and such circumstances are not presented by this case.
An effort by the judiciary, under the rubric of strict judi
cial scrutiny, to fashion admissions standards is very likely
to lead to the kinds of mistakes made by the court below.
In this instance, it would also gravely harm the healthy
“federalism” now presented by a system under which uni
versities across the country are permitted to fashion their
own programs without any stultifying central controls.74

74. As the Court further noted in San Antonio Independent
School District, supra, in a cognate context:
“The ultimate wisdom as to these and related problems of educa
tion is not likely to be divined for all time even by the scholars
who now so earnestly debate the issues. In such circumstances, the
judiciary is well advised to refrain, from imposing on the States
inflexible constitutional restraints that could circumscribe or handi
cap the continued research and experimentation so vital to finding
even partial solutions to educational problems and to keeping
abreast of ever-changing conditions.” 411 U.S. at 43.

See also Frankfurter, J., concurring, in Siveezy v. New Hamp
shire, 354 U.S. 234, 263 (1957) (quoting from a South African
report) :
‘“ . . . I t is the business of a university to provide that atmosphere
which is most conducive to speculation, experiment and creation.
I t is an atmosphere in which there prevail “the four essential free
doms” of a university—to determine for itself on academic grounds
who may teach, what may be taught, how it shall be taught, and
who may be admitted to study.’ ”

2. If use of racial criteria in a remedial context triggers an intermediate
standard of review, the Davis program meets such a standard.

The authorities cited previously in this brief demon
strate that remedial racial criteria, as employed in the
Davis program, are to be judged by the traditional equal-
protection standard. However, intermediate standards have
begun to appear in recent years, as in the gender classifi
cation cases. E.g., Craig v. Boren, 97 S.Ct. 451, 457 (1976)
(“. . . [Classification by gender must serve important
governmental objectives and must be substantially related
to achievement of those objectives.”) The Court recently
employed such a standard in upholding a gender classifica
tion intended to remedy the effects of economic discrimi
nation against women. Califano v. Webster, 97 S.Ct. 1192
(1977) (Per curiam). Moreover, one member of the Court
stated in Williamsburgh that there may be a “need for
careful consideration of the operation of any racial device,
even one cloaked in preferential garb.” 97 S.Ct. at 1014
(Brennan, J., concurring).

The University acknowledges that the Davis program
is not without costs to society. The existence of similar
costs has prompted some courts to adopt an intermediate
level of review. See Alevy v. Downstate Medical Center,
supra; Germann v. Kipp, 14 Fair Empl. Prac. Cas. 1197.
(W.D.Mo. 1977). These cases suggest that the state’s use
of racial criteria for remedial purposes must be well-
justified, but is not suspect. Such cases recognize that “the
mere recitation of a benign, compensatory purpose is not
an automatic shield which protects against any inquiry
into the actual purposes underlying [the challenged]
scheme.” Weinberger v. Wiesenfield, 420 U.S. 636, 648
(1975). But the test employed in these cases does not lead,
as does the standard of strict scrutiny, to a degree of
judicial intervention wholly unwarranted by the concerns
raised by programs like the one at Davis.

78
The University disputes the contention that an inter

mediate standard is necessary in the case of a program,
like that at Davis, adopted by a responsible educational
institution commissioned by the citizenry to make hard de
cisions on matters of educational policy traditionally re
served to the states. However, if an intermediate test is to
be employed in this case, the Davis program plainly meets
it. No one contends that the program has a disguised invidi
ous purpose. Obviously the program does not arouse racial
awareness for the purpose of harming discrete and insular
minorities. See Anderson v. Martin, 375 U.S. 399 (1964).
Nor is this an instance in which a discrete minority group
is singled out to bear the brunt of some state program.
Likewise this is not a case of a preference for minorities
that serves no purpose whatsoever. See McDonald v. Santa
Fe Trail Transportation Co., 427 U.S. 273 (1976). To be
sure there is here a greater arousal of racial awareness
than there is, for example, in race-conscious census ques
tions and statistics. See Tancil v. Woolls, 379 U.S. 19
(1964). But the degree of racial awareness prompted by the
Davis program should not lead to invalidity, particularly
when balanced against the significance of the benefits to
be obtained.

The goals of the Davis program meet any standard of
significance; they are compelling, perhaps as compelling as
any ever presented to this Court. They are of a remedial
nature, seeking to counter the effects of past discrimina
tion ; no question is raised as to that. The faculty concluded
that the chosen means were effective, not only more effective
than alternatives but the only effective means. The reason
ableness of that judgment has been demonstrated thus far
by the introduction of more than an isolated number of
minorities into the medical school and by the orderly ad
vance of those students through the curriculum. The pro-

79
gram lias only begun. It is far too early to conclude that it
lias outlived its usefulness, and there is no basis for con
cluding that it will become a fixture beyond the point that
the basis for its adoption disappears.75 The program is of
limited scope. The entire student body has scarcely been
turned over to minorities; it cannot be said that whites
have been denied an adequate representation. Whites con
tinue, and will continue, to comprise by far the largest
percentage of the student body. There may come a time
when it would be appropriate for the Court to conclude
that the program has been in place too long, assuming that
it has not by then been altered or eliminated. Plainly, it
would be totally premature to reach such a judgment at
this stage.

Of principal importance, “the gain to be derived from the
preferential policy outweighs its possible detrimental ef
fects.” Alevy, su^ra, 39 N.Y.2d at 336, 348 N.E. 2d at 545,
384 N.Y.S. 2d at 90. If permitted by the judiciary to
continue, the program will make its contribution to the
demolition of debilitating, pervasive, and unhealthy stereo
types about the role of minorities in medicine, as well
as to the improvement of all physicians who experience the
multi-racial education offered at Davis. If, as a society, we
truly intend to permit those faculties that choose to do so
to deal realistically with the task left unfinished in the
years since Brown, such programs must be permitted to
continue.

3. Measured against the standard of strict judicial scrutiny, the Davis program
is constitutional.

The ends of the Davis program are among the most com
pelling imaginable in this country today, clearly sufficient to

75. See note 52, supra.

80
meet any criterion of the legitimacy and exigency of the
state’s interest. The means chosen are the most direct and
best fitted to those ends. There are no other means more
precisely tailored, or indeed of any kind, which will effec
tively serve the desired ends. The goal being to counteract
the effects of past discrimination on the basis of race, the
means are necessarily racially-eonscious. Only such means
can work; the only possibly effective “alternatives” (if
indeed any can be conceived of) would be those which are
plainly and obviously only a proxy for race. Thus, although
both reason and authority call for a less rigid standard,
the Davis program is valid even under the test of strict
judicial scrutiny.

The court below found the Davis program invalid only
by misconstruing the precedents of this Court. It cited as
its leading authority Bunn v. Blumstein, 405 TJ.S. 330
(1972),78 yet ignored both parts of this Court’s statement in
that case that

76. The California court cited only three cases in support of
its construction of the strict scrutiny standard: B u n n v. B lu m
stein , 405 U.S. 330, 342-43 (1972); L o v in g v. V irg in ia , 388 TJ.S. 1,
11 (1967); and M cL augh lin v . F lorida , 379 TJ.S. 184, 192-93
(1964). 18 C.3d at 49, 553 P.2d at 1162, 132 Cal.Rptr. at 690.
D u n n is discussed in the text. The Court in L oving , as stated ex
plicitly at the page cited, held the challenged statutes invalid
because they were “measures designed to maintain White Suprem
acy,” an objective entirely repugnant to the Constitution. M c
L a u g h lin held at the page cited that there was no rational
relationship between the means employed in the criminal statute
under attack and all but one of the purposes asserted by the state.
As to that one end which the Court was willing to assume might
not be invalid and as to which the challenged means might be re
lated, the opinion at a later point went off on the ground that those
means were not even claimed to be needed to advance that end—•
that the state had “offered no argument” that its policy could not
be “as adequately served” by other, existing legislation already on
its books. 379 TJ.S. at 196. The ends sought by the Davis program
are surely permissible constitutionally, and the University has
maintained throughout this case that those ends were not being
adequately served at all by the preexisting admissions program—
let alone “as adequately” as by the program under attack.

“ [b]y requiring classifications to be tailored to their
purpose, we do not secretly require the impossible.” Id.
at 360.

The California court did not require “classifications to be
tailored to their purpose” but rather the contrary, holding
that the means most fitted to the ends were ipso facto the
most invalid, and it did “secretly require the impossible.”
It brought this about by formulating and imposing as a
requirement for sustaining the Davis program that the
University demonstrate that no means, however indirect
and loosely fitted, which the California court might, at the
appellate level, imagine could conceivably serve to advance
in any degree the desired objectives. This is literally the im
possible requirement of proving a universal negative. I t is to
say that the state may recognize compelling ends, but it may
not vindicate them. When this Court has looked to the avail
ability of alternative means as a way of assessing the real
need for a challenged measure, it has focused upon other
existing legislation (often that already in effect in the very
state), e.g., Dunn v. Blumstein, 405 U.S. at 346-47, 348-49,
353-54; McLaughlin v. Florida, 379 U.S. 184,196 (1964); In
re Griffiths, 413 U.S. 717, 725-27 (1973), or upon common
sense alternatives readily perceivable as better-fitted means
to the same ends, e.g., Dunn v. Blumstein, 405 U.S. at 348,
351-52; Lubinv. Banish, 415 U.S. 709, 718-19 (1974); Sugar-
man v. Dougall, 413 U.S. 634, 645-46 (1973); Shelton v.
Tucker, 364 U.S. 479, 487-90 (1960). Moreover, when the
necessity for and the operation of challenged legislative
means was not readily perceivable, this Court has proceeded
not by speculation but by careful inquiry including, where
appropriate, remand for further hearing at the trial level.

82
Storer v. Brown, 415 U.S. 724, 738-44 (1974). The California
court recognized no such bounds, as demonstrated by its
reliance on the “clearly fanciful speculation” (Tobriner, J.,
dissenting, 18 C.3d at 90) that building more medical schools
could be a feasible and effective means to achieve the desired
ends. Without such bounds, with its range of hypotheticals
unlimited even by fidelity to realism, that court was both
theoretically and practically imposing a condition impossible
of fulfillment.

When this Court, applying the test of strict scrutiny, has
examined the relationship of means to ends, it has (as stated
in the quotation from Dunn v. Blumstein, supra, and in a
host of other cases) looked for the closest fit between the
means chosen and the objectives sought by the state: the
more the means are precisely tailored to the accepted ends,
the greater their validity. The court below totally inverted
this approach. It proceeded from the remarkable proposi
tion that the means most precisely fitted to the state’s ends
were presumptively—or, more accurately, per se—invalid.
It declared that other, indirect and less fitted means (assum
ing they exist) were to be preferred so long as they might
in any degree advance the stated objectives.

In fact, what the California court did was not to examine
means at all, but to substitute ends of its choice for those
selected by the medical school. The point can perhaps be
made most clearly by illustration. It is conceivable that
the ends sought by the Davis program might be furthered
in some degree by giving a preference on admission to
veterans who saw combat in Vietnam, to persons who grew
up in families headed by a female who had not graduated
from high school, or to applicants who score below a certain
level on the MCAT; indeed, it is entirely possible that each
of these categories might contain a higher proportion of
minorities than the category espoused by the court below,

83
the economically disadvantaged.77 Yet it seems beyond belief
that the California court would hold that the University
had to accept a program based on any of these as a preferred
alternative to the Davis program. What must distinguish
these hypothetical examples is that the California court
approves of a medical faculty seeking to bring the economi
cally disadvantaged into the mainstream of its school and
the profession, but not those defined by the other referents
—i.e., that it is choosing the ends which the medical school
can pursue.

The court below thus denied the Davis faculty the right
to pursue the ends of its choice except to the extent that
those ends might conceivably be served indirectly by a
program designed to forward goals selected by the court.
Even aside from the resort to hypocrisy which this hold
ing would force upon the medical school if it elected to
follow the route thus laid out for it, the approach of
the California court represents a degree of judicial inter
ventionism in the name of the federal Constitution far
beyond any sanctioned by the decisions of this Court. It
involves not only a judicial definition of acceptable ends,
b\it an unparalleled judicial scrutiny of means with the
requirement that judicially endorsed means be employed
even though the judiciary concedes that they may not work.
Disregarding the judgment of the Davis faculty that the
means it selected were essential, as well as all other reasons
for realizing that no other means can be effective, the court
below also ignored this Court’s admonition that “the Con-

77. For example, families with children under 18 headed by a
female who was not a high school graduate were, according to the
1970 census, 60% white and 40% minorities (11% were of Spanish
origin). U.S. Bureau of the Census, Department of Commerce, Pub.
No. PC(2)-4A, U nited S tates Census of P o pu la tio n : 1970, Fam
ily Composition, pp. 103-105. Compare the data on the economically
disadvantaged, note 46, supra, and on all households headed by a
non-high school graduate, note 49, supra.

84
stitution does not require the State to choose ineffectual
means to achieve its aims.” Storer v. Brown, 415 TJ.S. 724,
736 (1974).

Ultimately, what the court below did was to hold the
use of racial criteria invalid per se. This Court has con
sistently rejected such a position, even where the race-
conscious measure under attack reflected hostile discrimi
nation against a racial minority. E.g., McLaughlin v.
Florida, 379 U.S. at 191-93. In the final analysis, the Cali
fornia court has refused to recognize the legitimacy, let
alone the truly compelling nature, of the goal of counter
acting the effects of past color discrimination. This again
is inconsistent with the decisions of this Court. E.g., Swann
v. Charlotte-MecMenburg Board of Education, supra;
United Jewish Organisations of Williamsburgh v. Carey,
supra; cf. Califano v. Webster, supra; Morton v. Mancari,
supra.

The Davis program meets the most rigorous strict scru
tiny that can be found in this Court’s eases, and thus re
versal is required on the basis of those cases alone. But
there is yet another reason why reversal must follow if
such scrutiny is to be applied to this case. That reason
appears in a more recent line of authority. This Court
has rarely confronted in any area a compelling state
interest of sufficient magnitude to require precise defini
tion of the necessary-means element of the strict scrutiny
standard. That situation has arisen in recent years in
the context of various state rules restricting candidates’
access to the ballot. These have been challenged as infring
ing upon associational and voting rights under the First
and Fourteenth Amendments, as well as upon the right to
equal protection of the laws. The importance of the state’s
objectives in protecting the integrity of the electoral process
was (as is the state interest in this case) hardly open to

85
question. The constitutional interests alleged to be invaded
by the state’s measures were (far more than in the present
ease) also clearly undeniable. Addressing the definition of
strict scrutiny in that context, this Court held that state-
chosen means are valid, despite competing fundamental
constitutional claims, if they are measures “reasonably
taken in pursuit of vital state objectives that cannot be
served equally well in significantly less burdensome ways.”
American Party of Texas v. White, 415 U.S. 767, 781
(1974). Essentially similar formulations were applied in
Storer v. Brown, 415 U.S. 724, 729, 736 (1974); Lubin v.
Banish, 415 U.S. 709, 716-19 (1974); Bullock v. Carter, 405
U.S. 134, 144, 147-49 (1972).

The ballot-access cases share with the present case
the fundamental quality that the objectives advanced
by the state as the proximate cause and justification of the
measures under attack are unquestionably of the highest
order of importance. From this aspect, the learning of
American Party and the other cases in its line as to the
meaning of “necessary” within the strict scrutiny standard,
and the proper relevance thereto of possible “alternative”
means, governs in the present case. The validity of the
Davis program under the standard of those cases surely
needs no further elaboration.

Under any standard of strict scrutiny which does not
require the impossible, the Davis program is valid. Its
goals represent a compelling state interest of the highest
magnitude. Its means are precisely tailored to those goals
and are essential for their achievement. No other means
exist, except ineffectual ones. Unless mere invocation of
the standard is to be automatically “fatal in fact,”78 a con-

78. Gunther, F orew ord: I n Search o f E vo lv in g D octrine on a
C hanging C ourt: A M odel fo r a N ew er E q u a l P rotection , 86 H arv.
L.Rev. 1, 8 (1972).

86
elusion which this Court has explicitly rejected, the Davis
program meets the requirements of strict scrutiny.

CONCLUSION

To invalidate the voluntary, remedial program at issue
would be to elevate formal notions of equality at the cost
of real inequality. It would be to repeat the mistake of
Lochner v. New York, 198 U.S. 45 (1905).

“Equal protection, not color-blindness, is the consti
tutional mandate, and the experience with liberty of
contract should caution against an absolute legal
criterion that ignores practical realities. Measures to
correct racial imbalance are like those to correct an
imbalance in the bargaining position of labor. At
least as transitional measures they may serve to pro
mote, not to deny, the equal protection of the laws. Of
course, the conclusion is reached more easily if the
state itself has contributed to the present disadvantage
by past discrimination; but in any case a disadvantage
which exists on racial grounds should be correctible
by favored treatment. This the state may do, but need
not; it rests in the realm of allowable policy. . . .”
Freund, Constitutional Dilemmas, 45 B.U.L.Rev. 13,
20 (1965).

The University does not contend that all professional
schools must employ special-admissions programs or that
all such programs must resemble the Davis program.
Rather, the University submits that the Equal Protection
Clause does not prohibit those professional schools that
voluntarily choose to do so from adopting such programs,
that the correct result is to permit educators, in the exercise
of the discretion lodged in them, to select from a broad
range of admissions criteria. An affirmance in this case
would not only sacrifice this essential discretion to an arid

87
formula, it would also stand as one of those rare but tragic
instances in which the judiciary has contributed to the
continued subordination of racial minorities. E.g., Berea
College v. Kentucky, 211 U.S. 45 (1908).

For these and the other reasons set forth in this brief,
the judgment of the court below should be reversed.

Respectfully submitted,

P aul J . Mishkin
Boalt Hall
Berkeley, CA 94720

J ack B. Owens
Orrick, Herrington, Rowley

& Sutcliffe
600 Montgomery Street
San Francisco, CA 94111

Donald L. Reidhaar
590 University Hall
Berkeley, CA94720

Archibald Cox
Of Counsel on the Brief

Counsel for Petitioner

June, 1977

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Bakke v. Regents Brief for Petitioner

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