Bakke v. Regents Brief Amicus Curiae for the Order of Sons of Italy in America in Support of Respondent

    Ĵ lES M' MBRIT, III
ASSOCIATE-COUNSEL

IN THE

Supreme Court of the United States

October Term , 1977.

No. 76-811

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Petitioner,

v.

ALLAN BAKKE,
Respondent.

On Writ of Certiorari to the Supreme Court of the 
State of California.

BR IEF AMICUS CURIAE FOR THE ORDER 
SONS OF ITALY IN AMERICA IN 

SUPPORT OF RESPONDENT.

J u d it h  R . C o h n ,
R o b e r t  L. B l a c k s b e r g ,

Twelfth Floor, Packard Building,
Philadelphia, Pennsylvania. 19102

Attorneys for Order Sons of Italy 
in America, Amicus Curiae.

Of Counsel:
W o l f , B l o c k , S ch o r r  a n d  S o l is-C o h e n .

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (216) 727-8711



INDEX.

Page

In terest  of th e  Am i c u s .......................................................................  2

S u m m a ry  of Argum ent  ............................................................ 5

Argum en t  ................................................................................................... 8

I. The Exclusion of an Individual From a Professional 
School on the Basis of Race Violates the Fourteenth 
Amendment and Cannot Be Justified on the Basis of 
Social Engineering ......................................................  8
A. Racial Quotas in Professional School Admissions

Programs Are Patently Discriminatory...............  8
B. White Persons Arc Entitled to the Same Rights

Under the Equal Protection Clause as Blacks 
and Other Racial Minorities ..................................  10

C. There Is No Precedent in the Decisions of This
Court for Denying an Individual a Substantial
Opportunity Solely on the Basis of R a c e ........... 13

II. Flagrant State Discrimination Depriving Individuals 
of Substantial Professional Opportunities on the Basis 
of Race May Not Be Sanctioned Merely Because the 
Proponents Characterize Their Motives as 'Benign” 
or “Socially Desirable” ................................................  16
A. The Reasons Proffered to This Court Do Not

Justify Blatant Racial Discrimination in Profes­
sional School Admissions Programs ...................  16

B. Racial Tests for Admissions to Professional
Schools Have Deleterious Effects on Society as 
a W hole.................................................................  20

C. Petitioner Can Accomplish Its Legitimate Pur­
poses Through Racially Neutral Means ............. 23

C onclusion  ................................................................................. 25



TABLE OF CITATIONS,
Cases: Page
Bakke v. Regents of the University of California, 18 Cal. 3d

34, 553 P. 2d 1152 (1976) ........................................ . 8
Brown v. Board of Education, 347 U. S. 483 (1954) .............. 13
Craig v. Boren, 429 U. S. 190 (1976) ......................................  19
Dayton Board of Education v. Brinkman, 45 U. S. L. W. 4910

(June 27, 1977) ....................... ................................ ..........  15
DeFunis v. Odegaard, 416 U. S. 312 (1974) ..................... 12,18, 22
Franks v. Bowman Transportation, Inc., 424 U. S. 747 (1976).. 14
Graham v. Richardson, 403 U. S. 365 (1971) .........................  13
Hirabayashi v. United States, 320 U. S. 81 (1943) .................  13
Korematsu v. United States, 323 U. S. 214 (1944) .................  13
Loving v. Virginia, 388 U. S. 1 (1967) .....................................10,13
Milliken v. Bradley, 418 U. S. 717 (1974) ............................... 15
Morton v. Mancari, 417 U. S. 535 (1974) ............... ................  14
McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273

(1976) .........................................    12
McLaughlin v. Florida, 379 U. S. 184 (1964) .........................  13
Oyama v. California, 332 U. S. 633 (1948) ............................  13
Palmer v. Thompson, 403 U. S. 217 (1971) ..................    16
Shelley v. Kraemer, 334 U. S. 1 (1948) ............... ................... 11
Swann v. Charlotte-Mecklenburg Board of Education, 402

U. S. 1 (1971) .....................................................................13,14
United Jewish Organizations of Williamsburgh, Inc. v. Casey,

97 S. Ct. 996 (1977) ................................................ 13,14,20, 21
United States v. Montgomery County Board of Education,

395 U. S. 225 (1969) ....................... .................................. 13,14
Washington v. Davis, 426 U. S. 229 (1976) ............................  19
Weinberger v. Wiesenfeld, 420 U. S. 636 (1975) ...................  16

Statutes:
42 U. S. C. § 1981 .......................................................................  12
42 U. S. C. § 2000(e) et seq......................................................... 12

Federal Regulations:
41 C. F. R. §60-50.1(b) ..........................................................  2



TABLE OF CITATIONS (Continued). 
Miscellaneous: Page
Auerbach, J. S., Unequal Justice—Lawyers and Social Change

in Modern America (1976) ................................................  3
Economic Elite Study—Detroit 1975, Michigan Ethnic Heri­

tage Studies Center (n.d.) ................................................  3
Lavinsky, DeFunis v. Odegaard: The ‘Non-Decision with a

Message, 75 Col. L. Rev. 520, 527 (1975) .......................  22
Law Practice—Judge: Bias a ‘No-No’ in Partner Promotions

63 ABA Journal 613 (1976) ..............................................  3
Minority Report. The representation of Poles, Italians, 

Latins and Blacks in the Executive Suites of Chicago’s 
Largest Corporations. The Institute of Urban Life for the
National Center for Urban Ethnic Affairs, (n.d.) ........ 3

U. S. Bureau of Health Manpower, Department of Health, 
Education, and Welfare, Pub. No. (HRA) 76-22, Minor­
ities and Women in the Health Fields: Applicants,
Students and Workers (1975) ............................................  18

Waldman, Economic and Racial Disadvantage as Reflected in 
Traditional Medical School Selection Factors: A Study of 
1976 Applicants to U. S. Medical Schools. Association of 
American Medical Colleges (1977) ................................... 19



BRIEF AMICUS CURIAE FOR THE ORDER  
SONS OF ITALY IN AMERICA IN 

SUPPORT OF RESPONDENT.

This brief Amicus Curiae is filed by the Order Sons of 
Italy in America with the consent of the parties, as pro­
vided in Rule 42 of the Rules of this Court.



2 Brief Amicus Curiae

INTEREST OF THE AMICUS.

The Order Sons of Italy in America is a fraternal 
organization of approximately 95,000 members belonging 
to 22 Grand Lodges in 24 states. All persons of Italian 
birth or descent, or persons adopted by those of Italian 
lineage, and their spouses are eligible for membership in 
the organization. One of the principal purposes of the 
organization is to participate in the political, social and 
civic life of the community and in particular to strive 
toward fair and equal treatment of all individuals regard­
less of race or national origin. To this end, the Order 
Sons of Italy in America has established a Commission 
Against Bias, Bigotry and Prejudice. The chairman of 
the Commission is Americo V. Cortese, Esq., Prothonotary, 
Philadelphia County, Pennsylvania.

The interest of the Amicus is that of a constituent 
minority group which, although it has suffered discrimi­
nation for many years, has now become part of the “ma­
jority” discriminated against by preferential admissions 
programs of the type used by Petitioner and many other 
professional schools and colleges through the country.

The experience of the Italian in this country has been 
too often that of a minority excluded from positions in the 
corporate and professional world.1 For example, surveys 
of the largest business organizations in Detroit and Chi-

1. Discrimination against Italians in the business world has 
been recognized by the Office of Federal Contract Compliance 
Programs in its guidelines on discrimination based on religion or 
national origin. In particular, the guidelines state,

“Members of various religious and ethnic groups, primarily but 
not exclusively of eastern, middle and southern European 
ancestry, such as Jews, Catholics, Italians, Greeks and Slavic 
groups continued to be excluded from executive, middle- 
management, and other job levels because of discrimination 
based upon their religion and/or national origin. These guide­
lines are intended to remedy such unfair treatment.” 41 
C. F. R. § 60-50.1 (b).



Brief Amicus Curiae 3

cago have found that Italians and other ethnic minorities 
have held far fewer positions on the boards of directors 
and as officers of those institutions than the proportions of 
such persons in the populations of those cities would lead 
one to expect.2 A recent survey of the 20 largest law 
firms in New York revealed that only 1.6% of the 912 part­
ners in those firms had Italian names.3 While information 
concerning the number of persons of Italian origin in the 
medical profession has not been collected, it is well known 
that they were among the ethnic groups to which “quotas” 
were applicable in medical schools and that they were 
subject to the same kind of discrimination by the medical 
profession as were the minority groups Petitioner seeks to 
prefer.

The potential harm to persons of Italian origin, as 
well as to other members of the “majority” white popula­
tion, from preferential admissions programs arbitrarily 
limiting the number of “non-minority” admittees on the 
basis of race is clear. Persons of Italian descent are a 
minority which is discriminated against. Under such pro­
grams, persons of Italian descent with qualifications equal 
to or better than those of the persons of the “minority 
races” are denied admission solely on account of race. 
The discrimination which the Italians have suffered in the 
past, and in many respects continue to suffer, may dis­
advantage some of them in the competition for admission 
to selective professional schools. Members of Amicus,

2. Minority Report. The Representation of Poles, Italians, 
Latins and Blacks in the Executive Suites of Chicago’s Largest 
Corporations. The Institute of Urban Life for the National Center 
for Urban Ethnic Affairs (n.d.); Economic Elite Study—Detroit 
1975, Michigan Ethnic Heritage Studies Center (n.d.).

3. Law Practice—Judge: Bias a ‘No-No’ in Partner Promotions, 
63 ABA Journal 613 (1977). See J. S. Auerbach, Unequal Justice- 
Lawyers and Social Change in Modern America, 50, 117, 185 188 
209,295 (1976).



4 Brief Amicus Curiae

however, do not seek to participate in a special admissions 
program that benefits them solely by the accident of birth 
which places them in a particular racial, ethnic or na­
tional group. On the contrary, they would be offended 
by any program which deals with them on a group basis 
rather than as individual human beings, and consider that 
such treatment would bring with it the stigma of 
inferiority.

Amicus is interested primarily in upholding the prin­
ciples of equal treatment and opportunity for all persons 
regardless of race, religion or national origin and believe 
that Petitioner’s preferential program (as well as similar 
programs) is patently unfair and unjust by making the 
chances of admission to medical school dependent upon 
race rather than individual ability.

As members of a discrete, identifiable and dis­
advantaged minority, these Amici are also concerned about 
the dangers of increasing racial and ethnic consciousness 
and inflaming racial and ethnic animosity inherent in a 
preferential admissions program like the one at the Uni­
versity of California at Davis.

For these reasons, the Order Sons of Italy in America 
submits this brief in support of the Respondent.



Brief Amicus Curiae 5

SUMMARY OF ARGUMENT.

A professional school admissions program that uses 
different criteria for equally qualified candidates based on 
race and denies admission to equal or more highly qualified 
candidates solely on the basis of race violates the Equal 
Protection Clause of the Fourteenth Amendment. There 
is no precedent for justification of a discriminatory state 
policy which imposes significant disadvantages on indi­
viduals based upon the inherent uncontrollable accident 
of race. The only cases in which this Court has allowed 
racial discrimination which penalizes individuals on the 
basis of race are the wartime internment cases decided 
under emergency circumstances in no way relevant to cur­
rent conditions.

The Fourteenth Amendment applies to racial discrim­
ination against whites as well as blacks and other racial 
minorities because it requires individual determinations 
of individual rights and prohibits racially dependent ad­
vantages. Moreover, a preferred quota for certain minori­
ties discriminates against other minorities. The char­
acterization of racial discrimination as “benign” or “socially 
advantageous” does not vitiate the prohibition of the Four­
teenth Amendment which protects personal rights rather 
than group rights. Social engineering cannot become part 
of the Fourteenth Amendment.

The cases in the last decade in which this Court has 
upheld classifications based on race did not involve the 
grant of a benefit or advantage to the members of one race 
while wholly denying or limiting that benefit to the mem­
bers of another race. The only arguable exceptions, not 
applicable to the instant case, are the few cases which 
approved remedial programs to directly counteract the



6 Brief Amicus Curiae

effects of officially sanctioned and judicially or adminis­
tratively determined discrimination within a particular 
institution.

Regardless of the test which is used to justify discrim­
ination on the basis of race, the type of professional school 
preferential admissions program involved in this case 
should not be sanctioned. Such a program creates an 
outrageous distinction on the basis of race and deprives 
members of non-benefiting races of the opportunity to 
pursue their chosen profession and thereby limits their 
entire future. It destroys perceptions and expectations 
that advancement, at least in the most learned professions, 
is based on merit or ability often achieved through hard 
work. Such a program also poses the danger of preserving 
racial consciousness, inflaming racial animosities and creat­
ing a situation in which all members of the preferred 
group, regardless of their merit, are considered second-rate 
members of the profession to the detriment of society as 
a whole.

The essential reasons advanced by Petitioner and 
others in support of special admissions programs—to rem­
edy past discrimination and to provide greater racial minor­
ity representation in the professions—do not justify the 
serious deprivation of rights involved in such programs. 
The record in this case contains no evidence that Peti­
tioner ever discriminated against the minority groups it 
now seeks to prefer. There is no admission of such a dis­
criminatory policy by the University of California or any 
of the other professional schools or organizations that have 
filed briefs in this action. Generalized statements that 
these minorities have been discriminated against by the 
medical profession are equally applicable to other minority



Brief Amicus Curiae 7

groups. The concept that every profession should be com­
posed of persons from minority or special interest groups 
in proportion to their population would completely de­
molish the concept of individual rights guaranteed by the 
Fourteenth Amendment. Representation in a profession, 
whether it be medicine or some other profession, by mem­
bers of particular minorities does not insure that such 
minorities will obtain better professional services since 
there is no doubt that such minority professionals cannot 
be compelled to practice in disadvantaged areas. Fur­
thermore, such a goal is completely unworkable since it 
would reduce admission procedures to little more than 
statistical surveys. Professional schools and universities 
would inevitably have different “preferred classes” based 
on their geographic location and the racial and ethnic 
population of that area. Insofar as the goals advanced by 
respondent are proper state interests, they can be achieved 
through racially neutral alternatives.



8 Brief Amicus Curiae

ARGUMENT.

I. The Exclusion of an Individual From a Professional
School on the Basis of Race Violates the Fourteenth
Amendment and Cannot Be Justified on the Basis of
Social Engineering.

A. Racial Quotas in Professional Admissions Pro­
grams Are Patently Discriminatory.

The preferential admissions program which Petitioner 
seeks to preserve applies different standards for admission 
based on the applicant’s race. Pursuant to this program, 
16% of the positions in the entering class at Davis are re­
served for persons belonging to racial minorities desig­
nated by the school. Applicants for these positions will be 
considered and may be accepted although their academic 
credentials are less than those required by the school for 
consideration for the remaining places in the entering 
class.4

In the instant case, it is admitted that Respondent was 
denied admission to medical school solely on the basis of 
his race. Had he belonged to one of the preferred minor­
ities, he would have been admitted to the medical school 
of the University of California at Davis to which he 
applied.

The admissions program at Davis flagrantly discrimi­
nates on the basis of race in three important respects.

4. The record below reflects the fact that applicants with 
undergraduate grade point averages of less than 2.5 are summarily 
rejected for regular admission, while members of the preferred 
minorities will be considered for admission and accepted with such 
undergraduate grade point averages. Minority group members are 
also considered for and admitted to Davis with lower MCAT scores 
than other applicants. See Bakke v. Regents of the University of 
California, 18 Cal. 3d 34, 41; 553 P. 2d 1152 (1978).



Brief Amicus Curiae 9

First, white applicants whose qualifications are such that 
they would have been admitted if a quota of spaces were 
not reserved for members of the preferred races are denied 
the opportunity to attend medical school. Second, appli­
cants of the non-preferred races are totally denied con­
sideration for admission although their academic creden­
tials are the same as those of the preferred minority 
applicants. If, as Petitioner contends, the individuals who 
are accepted under the minority program are qualified to 
complete medical school and join the medical profession 
although their academic credentials are lower than those 
of individuals otherwise admitted, then members of the 
non-preferred races with the same lower academic cre­
dentials are unjustifiably denied even an opportunity to 
compete for admission to medical school solely on the basis 
of race. Third, the minority groups which the school has 
selected for preferential treatment are not the only minor­
ity groups which have suffered from disadvantages and 
past discrimination; nor are they the only minorities whose 
backgrounds cause them to have lower traditional aca­
demic credentials. Thus, there is inherent in the prefer­
ential program discrimination not only against whites as a 
whole but against discrete white minorities.5

Petitioner argues that there is no discrimination be­
cause no one has the right to attend medical school and 
because all it has done is alter the odds for whites gaining 
admission.6 This facile statement simply ignores the fact

5. The Association of American Law Schools states that LSAT 
scores are accurate predictors of performance at law school. When 
they set aside a quota for minority applicants with lower scores, 
they are patently discriminating against those who are more likely 
to succeed at law school—a result which is an affront to the 
American ideals of meritocracy, and which necessarily destroys any 
reasonable basis for their classifications.

6. We are amazed to see that petitioner and others consider 
16% (Davis) and 25% (Boalt Hall) of the available places de 
minimus.



10 Brief Amicus Curiae

that whatever the discretion of Petitioner regarding admis­
sion criteria, as a state institution it may not apply different 
criteria to applicants on the basis of race. Freedom from 
such racial discrimination is every applicant’s right. Se­
mantic arguments attempting to remove the word “quota” 
from the preferential admissions program are no more than 
an attempt to elevate form over substance; the racial dis­
crimination of the program is present regardless of the 
label it carries. Moreover, the impact of such discrimi­
nation cannot be minimized; it deprives individuals of one 
of the most critical opportunities of a lifetime, the scars of 
which can never be erased.

B. White Persons Are Entitled to the Same Rights 
Under the Equal Protection Clause as Blacks 
and Other Racial Minorities.

The Fourteenth Amendment provides all persons with 
the right to equal protection of the laws. The Amend­
ment is not limited to protection of particular minority 
groups. Rather it requires the protection of individual 
rights on an individual basis. Although the Fourteenth 
Amendment was adopted to protect the former black 
slaves and it was, therefore, natural that most of the litiga­
tion arising under this Amendment dealt with discrimina­
tion against such persons, the reach of the Fourteenth 
Amendment extends to all individuals.

As a result of its historical basis, the Fourteenth 
Amendment has had particular significance in state poli­
cies which discriminate against individuals solely on the 
basis of their ancestry and race. Such discriminations are 
“ "odious to a free people whose institutions are founded 
upon the doctrine of equality,” ’ Loving v. Virginia, 388 
U. S. 1, 11 (1967). The only reading of the Fourteenth



Brief Amicus Curiae 11

Amendment consistent with the philosophy and policies of 
this country, which place the highest values on individual 
merit rather than group racial classification, requires that 
the Fourteenth Amendment prohibit discrimination 
against whites as well as discrimination against blacks or 
other minority groups. A state policy which grants sig­
nificant opportunities to one race while denying them to 
another race, regardless of which is which, is repugnant 
to the American sense of justice. As long ago as 1948, this 
Court recognized that the Equal Protection Clause means 
that persons have a right to be free of racial discrimina­
tion no matter what their race:

The rights created by the first section of the Four­
teenth Amendment are, by its terms, guaranteed to 
the individual. The rights established are personal 
rights. It is, therefore, no answer to these petitioners 
to say that the courts may also be induced to deny 
white persons rights of ownership and occupancy on 
grounds of race or color. Equal protection of the 
laws is not achieved through indiscriminate imposi­
tion of inequalities.

Shelley v. Kraemer, 334 U. S. 1, 22 (1948).

There is more at stake under the Equal Protection 
Clause than the protection of a particular minority which 
happens to be disfavored at a particular time. What is at 
stake is that a state be required to make decisions which 
affect individual rights in a racially neutral manner so 
that no individual is disadvantaged at any time because of 
the immutable characteristic of his race. Just as this 
Court has refused on numerous occasions to uphold state 
preferences for whites which carry with them the badge 
of superiority, it should invalidate any state policies which 
grant superior rights to other races. No individual should



12 Brief Amicus Curiae

ever have a superior right solely by virtue of his race. If 
racial or other group preferences are allowed, individual 
rights will be subject to the influence or popularity of a 
particular racial or ethnic group at a particular time. As 
stated by Justice Douglas in his dissenting opinion in 
DeFunis v. Odegaard, 416 U. S. 312, 337 (1974),

There is no superior person by constitutional stand­
ards. A DeFunis who is white is entitled to no ad­
vantage by reason of that fact; nor is he subject to 
any disability, no matter what his race or color. 
Whatever his race, lie had a constitutional right to 
have his application considered on its individual 
merits in a racially neutral manner.

This Court has never had before it the opportunity to 
review under the Fourteenth Amendment a state policy 
which wantonly deprives white persons of a significant 
opportunity solely on the basis of race.7 However, it fol­
lows from McDonald v. Santa Fe Trail Transportation 
Co., 427 U. S. 273 (1976), that discrimination against 
whites should be subject to the same strict standard of 
judicial review as discrimination against other groups. In 
that case, this Court held that the Civil Rights Act of 
1866, 42 U. S. C. § 1981, and Title VII of the 1964 Civil 
Rights Act applied equally to discrimination against 
whites as they did to discrimination against other racial 
groups. Certainly the reach of the Fourteenth Amend­
ment is no less than that of Title VII and Section 1981.

7. In DeFunis, supra, this Court declined to review this ques­
tion on the ground of mootness.



Brief Amicus Curiae 13

C. There Is no Precedent in the Decisions of This 
Court for Denying an Individual a Substantial 
Opportunity Solely on the Basis of Race.

The only cases in which this Court has upheld the 
wanton deprivation of individual rights on the basis of 
racial classifications are the wartime internment cases. 
Hirabayashi v. United States, 320 U. S. 81 (1943); Kore- 
matsu v. United States, 323 U. S. 214 (1944). Even if 
those cases were to be followed today, the exigencies of 
war used to justify racial discrimination in those cases at 
the time do not exist today and are in no way comparable 
to the justifications advanced by Petitioner. In contrast 
to those cases, this Court has repeatedly struck down state 
programs and policies which imposed penalties on a racial 
basis or worked to the disadvantage of a particular race. 
Loving v. Virginia, supra; McLaughlin v. Florida, 379 
U. S. 184 (1964); Brown v. Board of Education, 347 U. S. 
483 (1954). It also has struck down discrimination based 
on alienage or national origin treating each as a suspect 
class. Graham v. Richardson, 403 U. S. 365 (1971); 
Oyama v. California, 332 U. S. 633 (1948).

With the exception of the wartime internment cases, 
most of the cases in which this Court has approved racial 
classifications have emphasized that no person was, in 
fact, deprived of an individual opportunity or advantage 
as a result of the policy or program. See e.g., United 
Jewish Organizations of Williamsburgh, Inc. v. Carey, 97 
S. Ct. 996 (1977); Swann v. Charlotte-Mecklenberg Board 
of Education, 402 U. S. 1 (1971). These and other cases 
which upheld consideration of racial factors have done 
so only as a remedy for prior judicial, administrative or 
legislative determinations of discrimination in order to 
directly benefit the persons who have suffered from the 
discrimination. See United States v. Montgomery County



14 Brief Amicus Curiae

Board of Education, 395 U. S. 225 (1969); Franks v. Bow­
man Transportation, Inc., 424 U. S. 747 (1976).8

In United Jewish Organizations and Swann, this 
Court found that the racial classifications, while used to 
benefit racial minorities, did not substantially deprive 
other racial groups of the benefit of the state program or 
opportunities to share in them. Swann merely involved 
the assignment of pupils to a particular school,9 and United 
Jewish Organizations, the assignment of voters to a par­
ticular voting district. Moreover, in United Jeivish Or­
ganizations, this Court was dealing with a situation 
involving block voting. Block voting is necessarily a 
political group activity and district lines will always re­
flect some advantage to some group. They do not, how­
ever, impair individual voting rights. A voting rights 
policy which would be comparable to the policy of Peti­
tioner and other professional schools would be one in 
which individual blacks receive more votes than individ­
ual whites, so that they can be more proportionally 
represented.

8. Petitioner’s repeated citation of Morton v. Mancari, 417 U. S. 
535 (1974) as an example of a case in which this Court has ap­
proved a governmental program granting a preference based on 
race is disingenuous. This Court clearly denied that the Indian 
preference at issue in Morton v. Mancari had anything to do with 
race. The issue in question was the government’s relationship to 
tribal sovereignty. The Court noted: “The preference, as applied, 
is granted to Indians not as a discrete racial group, but, rather as 
members of quasi-sovereign tribal entities where lives and activities 
are governed by the BIA in unique fashion. . . . In the sense that 
there is no other group of people favored in this manner, the legal 
status of the BIA is truly sui generis.” Id. at 554. The blacks and 
other minorities preferred by Petitioner on the contrary have been 
given equal, not separate, treatment by the government. Petitioner 
(BB. p. 33) compares the preference for Indians to a preference 
for veterans. This is totally irrelevant since preferences for veterans 
have nothing to do with racial preferences.

9. As did most of the other desegregation cases cited by Peti­
tioner and Amici.



Brief Amicus Curiae 15

Recent decisions of this Court limiting the powers of 
the federal courts to order inter-district remedies in school 
desegregration cases make clear that state uses of racial 
classifications are to be narrowly limited and directed 
against only those organizations which have been judicially 
determined to have engaged in unlawful discrimination. 
In particular, the district courts do not have the power to 
require that innocent suburban districts be included in a 
desegregation program with a city in which intentional 
discriminaion has been practiced. Milliken v. Bradley, 
418 U. S. 717 (1974). In the last week of the 1976 term, 
this Court reiterated that court ordered desegregation 
must be based on a finding that the segregation “resulted 
from intentionally segregative actions on the part of the 
board.” Dayton Board of Education v. Brinkman, 45 
U. S. L. W. 4910, 4912 (June 27, 1977).

This Court has never permitted a state institution, 
on its own initiative, to adopt a racial preference as a 
social engineering device to remedy alleged discrimination 
by others. Social engineering which seeks to order society 
pursuant to certain priorities may or may not be “benign” 
depending upon whether one is favored or disfavored by 
those priorities. Since the goals of social planning will 
always depend upon the political views of those in power, 
there is potential for great abuse. Individual rights under 
the Fourteenth Amendment should not be caught between 
the gears of such social machinery.



16 Brief Amicus Curiae

II. Flagrant State Discrimination Depriving Individuals 
of Substantial Professional Opportunities on the Basis 
of Race May Not Be Sanctioned Merely Because the 
Proponents Characterize Their Motive as “Benign” or 
“Socially Desirable.”

A. The Reasons Preferred to This Court Do Not Jus­
tify Blatant Racial Discrimination in Professional 
School Admissions Programs.

Petitioner and other advocates of preferential quotas 
rely completely on the notion that such discrimination is 
benign and socially compelled. Such characterizations, 
however, do not bestow the imprimatur of constitutionality 
or even invoke compelling state interests.10 Certainly it 
cannot be disputed that the most socially important and 
compelling state interest is to protect public safety by pre­
venting physical violence and riots. Nonetheless, there is 
no doubt that segregation of neighborhoods, schools or 
even recreational facilities would not be imposed regard­
less of a showing of overt racial animosity and violent 
threats in a particular community.11

The specific reasons advocated by Petitioner and 
others in support of their special admissions programs are 
to provide minority representation in the professions so as 
to deliver professional services to minority groups which 
may otherwise be deprived of them and to remedy past 
discrimination.12

10. " . . .  [T]he mere recitation of a benign compensatory 
purpose is not an automatic shield which protects against any in­
quiry into the actual purposes underlying a statutory scheme.” 
Weinberger v. Wiesenfeld, 420 U. S. 636, 648 (1975).

11. The state may discontinue a discretionary service on these 
grounds, See Palmer v. Thompson, 403 U. S. 217 (1971), but may 
not impose segregation.

12. It is also suggested that exposure to minority students is 
important to a complete professional education. Assuming there



Brief Amicus Curiae 17

The first reason—more minority students should be 
admitted to medical school in order to provide medical 
services for these minority groups—does not withstand 
analysis. Rather the concept that minority doctors will 
tend to serve minority communities demonstrates vividly 
why the Fourteenth Amendment should be enforced ac­
cording to its terms without regard to the supposedly be­
nign nature of the social engineering which underlies a par­
ticular discrimination. If minority students may be given 
preference in order to serve their own communities, then 
who can object to moral or legal compulsion on them to 
serve those communities? The concept that a black doctor 
should be required to practice in a black neighborhood is, 
we trust, morally repulsive on its face; but it represents 
the ultimate logic of the view that socially desirable re­
sults justify race oriented state action.13

There is no constitutional guarantee that the number 
of individuals of a particular race in any profession be pro­
portional to their number within the population. If such 
were the case, it would certainly follow that representa­
tion in Congress and in state legislatures as well as the 
executive branches of state and federal government be 
likewise proportional to the racial composition of the na­
tion or particularly constituencies. One could argue that 
the only way such a goal could be achieved with certainty

12. ( Cont’d.)
is any validity to this amorphous proposition, it is clearly fulfilled 
as long as there are any minority students and cannot justify a 
quota of sixteen or twenty-five percent. Moreover, medical students 
have ample opportunity to deal with racial minorities in their 
clinical programs.

13. There is no evidence in the record that minority medical 
school graduates will in fact practice in disadvantaged areas. The 
delivery of medical services to disadvantaged minorities can cer­
tainly be accomplished by racially neutral means by the state or 
various medical associations.



18 Brief Amicus Curiae

would be by weighted voting, an idea which would be 
summarily dismissed. The preposterousness of the notion 
of racially proportionate representation as a constitution­
ally justified interest was eloquently stated by Justice 
Douglas in his dissent in DeFunis:

The Equal Protection Clause commands the elimina­
tion of racial barriers, not their creation in order to 
satisfy our theory as to how society ought to be 
organized. The purpose of the University of Wash­
ington cannot be to produce black lawyers for blacks, 
Polish lawyers for Poles, Jewish lawyers for Jews, 
Irish lawyers for Irish. It should be to produce good 
lawyers for Americans . . . .

416 U. S. at 342.

If there were any merit to the argument that minority 
groups are entitled to proportional representation in the 
professions, the Davis plan must clearly fail for discrim­
ination against other discrete ethnic or national minority 
groups, as well as women.14

The other reason—remedying past discrimination—is 
totally without merit. There is no evidence in the record 
and no admissions in the briefs submitted to this Court that 
the medical school at Davis or the University of California 
has discriminated on the basis of race. In fact, Petitioner 
has specifically denied any such policy. (Reply Br. of Pet. 
for Cert, at 6.) All that this Court is presented with are 
vague, confusing and often misleading statistics (none of 
which are contained in the record) as to the number of

14. Women who constitute the majority of the population con­
stitute but a small fraction of the medical profession. See, 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). Certainly 
women have as great an interest in having women physicians as do 
the favored minorities in the Davis plan.



Brief Amicus Curiae 19

minority applicants and minority admissions to various 
professional schools over two decades. Conspicuously ab­
sent from the statistics is how many minority group mem­
bers would be admitted if Petitioner or others changed 
their regular entrance requirements and placed lesser re­
liance on traditional academic credentials. Furthermore, 
the percentage of places allotted by Davis in the pref­
erential admissions program (16%) significantly exceeds 
the percentage of racial minority applicants ( less than 10%) 
of the national applicant pool in 1976.18 This Court has 
already recognized that it should not determine consti­
tutional rights on the basis of vague statistics. As stated 
in Craig v. Boren, 429 U. S. 190, 208-209 (1976): “In sum, 
the principles embodied in the Equal Protection Clause 
are not to be rendered inapplicable by statistically 
measured but loosely fitting generalities . . . . ” In Wash­
ington v. Davis, 426 U. S. 229 (1976), this Court held that 
statistical evidence of minority performance on certain job 
related tests was insufficient to demonstrate that the tests 
were racially discriminatory.

The suggestion by Petitioner and others that the racial 
minority quota has greater claims to constitutionality be­
cause it is “voluntary” turns the constitutional guarantees 
of the Fourteenth Amendment upside down. The only 
possible significance of a “voluntary” program would be to 
take the discrimination outside the ambit of state action. 
Since Petitioners actions clearly constitute state action, the 
repeated assertion that its program is voluntary does not 
assist it. If this Court is to attach any significance to this 
factor, it should consider it a negative one. As Justice 
Brennan has recognized, the use of racial considerations is

15. B. Waldman, Economic and Racial Disadvantage as Re­
flected in Traditional Medical School Selection Factors: A Study of 
1976 Applicants to U. S. Medical Schools, p. 15, Association of 
American Medical Colleges (1977).



20 Brief Amicus Curiae

more palatable when there is an intervention by an outside 
governmental authority which can review and limit the 
preferences granted and protect against the imposition of 
unnecessary disadvantages on the non-preferred persons, 
United Jewish Organizations, supra, 97 S. Ct. at 1014-1016. 
The participation of an outside agency, such as a federal 
or state court or administrative agency, permits all affected 
groups to express their positions in a public forum. This 
has been the case in all of the court and administrative 
orders approving racial considerations. The Davis pro­
gram and similar programs adopted by particular schools 
provide no such forum.

B. Racial Tests for Admissions to Professional Schools 
Have Deleterious and Unjust Effects on Society 
as a Whole.

Preferences on the basis of race rather than individual 
merit are abhorrent to our society. This Court has strongly 
admonished against the use of racial criteria, recognizing 
that they are inherently detrimental to a free and open 
society in which persons should be treated on the basis of 
their individual worth. This case presents a situation in 
which a racial preference is particularly repugnant be­
cause society as a whole has been led to expect that en­
trance to professional schools is based on individual merit. 
The holding that racial preferences are permitted in pro­
fessional schools will have adverse effects not only on stu­
dents and parents, but on all individuals seeking profes­
sion services. Students, parents and other members of 
the public will have lower perceptions as to the value of 
individual ability, achievement and ambition. Stu­
dents, in particular, will lose the incentive to exert the 
effort necessary to maximize their performance and skills. 
Potential consumers of professional skills will lose con-



Brief Amicus Curiae 21

fidence in the professions and may even diminish their 
use of such services.

Racial classifications necessarily carry with them the 
implication that people of different races are inherently 
unequal. The inevitable assumption that will be drawn 
from racially preferential admissions programs is that the 
preferred races are inferior to the non-preferred races. A 
stigma will attach to all members of the preferred races in 
all professions. In particular, it will create a class of doc­
tors viewed by the public as “second-rate” . It is no an­
swer to this problem to say, as does Petitioner, that one 
can avoid the “stigma” by not applying for special admis­
sion (BR, p. 48). The stigma attaches to all members of 
the preferred race to the detriment of all persons, many 
of whom may be reluctant to use the services of minority 
professionals. It is for this among other reasons that mem­
bers of Amicus do not ask to be considered for special 
treatment on a group basis.

Any policy which grants or denies benefits on the 
basis of race can only inflame racial consciousness and 
awareness, and provoke ill will toward the members of the 
preferred group. As stated by Justice Brennan:

[E]ven in the pursuit of remedial objectives an 
explicit policy of assignment by race may serve to 
stimulate our society’s latent race consciousness, sug­
gesting the utility and propriety of basing decisions 
on a factor that ideally bears no relationship to an 
individual’s worth or needs.

* * #

[E]ven a benign policy of assignment by race is 
viewed as unjust in our society, especially by those 
individuals who are adversely affected by a given 
classification.

United Jewish Organizations, supra, 97 S. Ct. at 1014.



22 Brief Amicus Curiae

The sense of injustice and outrage from a preferential 
admission program is heightened by the fact that those 
adversely affected are not a monolithic, equally politically 
powerful group.16 As Justice Brennan noted: “This im­
pression of injustices may be heightened by the natural 
consequence of our governing process that the most ‘dis­
crete and insular’ of whites often will be called upon to 
bear the immediate, direct cost of benign discrimination.” 
Id.

Preferential admission programs involve inherent 
problems of administration and definition which contain 
the seeds of unfairness and unworkability and which will 
ultimately become a battle of statistics. First, there is 
always the question of which minority groups are to be 
considered for the preference. Among the admission pro­
grams brought to the attention of the Court different 
minority groups are given preferences.17 Certainly the 
preferences in schools in other parts of the country 
such as the Northeast contain even different definitions 
of minorities. Under these circumstances there will al­
ways be questions of fairness with respect to which groups

16. “But the white majority is pluralistic, containing within it­
self a multitude of religious and ethnic minorities—Catholics, Jews, 
Italians, Irish, Poles—and many others who are vulnerable to preju­
dice and who to this day suffer the effects of past discrimination. 
Such groups have only recently begun to enjoy the benefits of a free 
society and should not be exposed to new discriminatory bars, even 
if they are raised in the cause of compensation to certain racial 
minorities for past inequities.” Lavinsky, DeFunis v. Odegaard: 
The ‘Non-Decision With a Message, 75 Col. L. Rev. 520 527 
(1975).

17. The medical school at Davis prefers blacks, Chicanos and 
Asians. Boalt Hall adds “native Americans” and deletes Japanese. 
At the time of DeFunis, The University of Washington included 
“Afro-Americans, Chicanos and American Indians”. The AAMC 
study, supra note 15, defines as under-represented minorities “Black 
American, American Indian, Mexican American and mainland 
Puerto Rican.”



Brief Amicus Curiae 23

are preferred and which are discriminated against. Every 
program will then be subject to judicial challenge to de­
termine whether the discrimination can be justified. Fur­
thermore, once the preferred minority groups are selected 
there will be inevitable questions as to who fits within the 
definition of each minority group. The state will then be 
embroiled in unseemly determinations of racial member­
ship.

Petitioner and others suggest that their preferential 
programs are temporary. However, we note that it is a 
natural consequence to expand rather than contract exist­
ing programs and preferences. The universities will be 
subject to intense pressure to keep the preferences al­
ready given to certain minority groups. Regardless, the 
deprivation of a constitutional right is not vitiated be­
cause the deprivation is temporary, and such deprivation 
is not temporary as to those individuals already excluded.

C. Petitioner Can Accomplish Its Legitimate Pur­
poses Through Racially Neutral Means.

Petitioner argues that the only way to give racial 
minorities a fair opportunity for admission to professional 
schools is to set aside a specified number of places as to 
which they can compete with lower academic credentials 
than the non-minority groups. There are, as the Supreme 
Court of California suggested, racially neutral alternatives.

Perhaps the most propitious alternative is one in 
which Petitioner alters its criteria for admission to medical 
school for all persons. Petitioner has suggested that un­
dergraduate grade point averages and MCAT scores are 
not necessarily reliable predictors of the ability to success­
fully complete medical school and to become a good phy­
sician. If this is so, Petitioner is free to institute a more 
flexible admissions program for all applicants giving weight



24 Brief Amicus Curiae

to any disadvantaged background of any applicant.18 
Presumably, among those with disadvantaged backgrounds 
will be a substantial number of racial minorities. Ad­
mittedly this will not give racial minorities a quota of 
reserved places, but that is precisely the unconstitutional 
feature of the present preferential admission programs.

The State of California which operates the University 
of California with its numerous colleges and professional 
schools, can institute within its system a remedial pro­
gram to prepare disadvantaged students for admission to 
medical school. Again, if, as Petitioner suggests, there are 
a sufficient number of minority students who are interested 
in attending medical school, they can take advantage of 
this program and then compete for admission to medical 
school on an equal basis with all other applicants. Other 
universities, colleges and professional schools can under­
take these same steps.

It is too late at the professional school level to under­
take a discriminatory policy which may lead to supplying 
the public with less than qualified members of critical 
professions. Steps should be taken and have been taken 
in the last decade to provide necessary programs at lower 
educational levels to insure that all qualified individuals 
are in a position to compete fairly for admission to pro­
fessional schools.

18. Petitioner has cited the AAMC study, supra, n. 15, not con­
tained in the record, purporting to demonstrate that a preferential 
program based on economic disadvantage would not result in the 
admission of significant numbers of racial minorities. Such a study 
shows only that family finances are not the sole measure of dis­
advantage. It does not prove that a racially neutral admissions 
program considering other disadvantaging factors such as quality 
of lower school education and inability to devote full time to study 
will exclude racial minorities.



Brief Amicus Curiae 

CONCLUSION.

25

The cause of racial justice cannot be served by racial 
discrimination. The label “benign” will not cure the harms 
inflicted on innocent applicants to professional schools, 
especially those whose own heritage has been filled with 
prejudice and discrimination. If Petitioner’s discrimina­
tory policy is upheld, there will no longer be any basis to 
believe that this nation continues to embrace a policy of 
racial neutrality, of equal rights regardless of race, religion 
or national origin.

The judgment below should be affirmed.

Respectfully submitted,

J u d it h  R. C o h n ,
R o b e r t  L. B l a c k s b e r g ,

Twelfth Floor, Packard Building, 
Philadelphia, Pennsylvania. 19102 

Attorneys for Order Sons of Italy 
in America, Amicus Curiae.

Of Counsel:
W o l f , B l o c k , S c h o r r  a n d  S o l is-C o h e n .

August, 1977



v>

o>.»vv»©'êV  v

<3? V  ^
<$e4