Davison v. Pensacola Junior College, FL Board of Trustees Brief for Plaintiff-Appellant

    JAMES M. NABRIT, lf|
assqciate-cqu NSEI

Jtt %  #up«ttu> (EourfO F  T H E
Irntefc

O c t o b e r  T e r m , 1976

No. 76-811

R e g e n t s  o p  t h e  U n iv e r s it y  o p  C a l if o r n ia ,

Petitioners,
vs.

A l l a n  B a k k e ,

Respondent.

On Writ of Certiorari to the Supreme Court of California

BRIEF OF THE FAIR EMPLOYMENT PRACTICE COMMISSION 
OF THE STATE OF CALIFORNIA, AMICUS CURIAE

C h a r l e s  E. W il s o n ,
L e o n o r a  M. S t o p o l ,

F e r n a n d o  G-a r c ia ,
W il l ia m  H .  H a s t ie , J r .,

Fair Employment Practice Commission,
Post Office Box 603,
San Francisco, California 94101,

Attorneys for the Ayiicus Curiae.

Dated, June 1, 1977.

Corrected June 21, 1977.

P E R N A U - W A L S H  P R I N T I N G  C O .  - 5 6 2  M I S S I O N  S T R E E T  - S A N  F R A N C I S C O ,  C A  9 4 1 0 5



Subject Index

Page
Table of Authorities Cited ............................................................ i
Interest of Amicus C u r ia e ..............................................................  1
Summary of A rg u m en t....................................................................  4
Argument ...........................................................................................  5

I
The admission decisions and policies of medical schools 

such as the University of California a t Davis represent 
a virtually absolute control of access to professional 
employment as a physician ...............................................  5

I I
Consideration of race and ethnicity as found in the 

medical school admissions program is not per se 
unconstitutional and should be permissible in the con­
text of a remedial and benignly conceived program 
which was carefully circumscribed to minimize any 
harmful effects ................................. ....................................  7

I I I
The alternatives to special selection programs posed by 

the California Supreme Court fail to meet the need; 
the current voluntary program represents an efficient 
and timely mechanism for insuring meaningful access 
of minorities to the profession and should be permis­
sible if conceived and operated in a carefully circum­
scribed fashion ......................................................................  15

Conclusion ......................... .................................................................  20

Table of Authorities Cited

Cases Pages
Adams v. Rankin County Bd. of Ed., 485 F.2d 324 (5th

Cir. 1973) ....................................................................................  8
Asbestos Workers, Local 53, v. Vogler, 407 F.2d 1047 (5th 

Cir. 1969) ....................................................................................  8
Bakke v. Regents of the University of California, 18 Cal.3d

34 (1976) ..................................................................................... 7 ,8,15
Bolling v. Sharpe, 347 U.S. 497 (1954) ....................................  10



T a b l e  o f  A u t h o r i t i e s  C i t e dii

Pages
Boston Chapter, N.A.A.C.P. v. Beecher, 504 F.2d 1017 (1st

Cir. 1974) ..................................................................................... 8
Bridgeport Guardians, Inc. v. Members of Bridgeport Civil 

Service Commission, 482 F.2d 1333 (2nd Cir. 1973) . . . .  8
Brown v. Bd. of E d , 347 U.S. 483 (1954) ........................... 10,14
Buckner v. Goodyear Tire & Rubber Co, 476 F.2d 1287 

(5th Cir. 1973), aff’g 339 F.Supp. 1108 (N.D. Ala. 1972) 8
Caddo Parrish School Bd. v. United States, 389 U.S. 840

(1967)   8
Carter v. Gallagher, 452 F.2d 315 (9th Cir. 1972), cert.

denied 406 U.S. 950 (1972) .....................................................  11
Castro v. Beecher, 386 F.Supp. 1281 (D.C. Mass. 1975)

(on remand from 1st Cir. 459 F.2d 725) ...........................  9
Commonwealth of Pennsylvania v. O’Neill, 473 F.2d 1029 

(3rd Cir. 1973) (en banc), aff’g in relevant part, 348
F.Supp, 1084 (E.D. Pa. 1972) ................................................. 8

Commonwealth of Pennsylvania v. Sebastian, 480 F.2d 917 
(3rd Cir. 1973), aff’g 368 F.Supp. 854 (W.D. Pa. 1972) 8

Dunn v. Blumstein, 405 U.S. 330 (1972) .............................  7
EEOC v. American Telephone and Telegraph, ......  F .2 d ......

(3rd Cir. 1977) 14 EPD 1)7506 .............................................  12
EEOC v. Lithographers and Engravers, Local 2P, 11 EPD 

1)10,735 (D.C. Md. 1975) .......................................................... 9
Franks v. Bowman Transportation Co, 495 F.2d 398 (5th 

Cir. 1974) ..................................................................................... 8
Germann v. Kipp, ......  F .Supp........., 14 EPD 1)7504 (W.D.

Mo. 1977) ....................................................................................  13
Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) ..................... 8
Keyes v. School Dist. No. 1, Denver, 521 F.2d 465 (10th

Cir. 1975) ....................................................................................  8
Korematsu v. U .S, 322 U.S. 214 (1944) ...............................  7
League of United Latin American Citizens v. City of Santa

Ana, 410 F.Supp. 873 (C.D. Calif. 1976) ......................... 9
Lee v. Macon County Bd. of E d , 453 F.2d 1104 (5th Cir.

1971)   8
Mancari v. Morton, 417 U.S. 536 (1974) ...............................  10
McLaurin v. Columbia Municipal Separate School D ist, 478

F.2d 348 (5th Cir. 1973) ........................................................ 8
Meadows v. Ford Motor Co, 510 F.2d 939 (6th Cir. 1975) 11



T a b l e  o p  A t j t h o b i t i e s  C i t e d iii. 

Pages
Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974) (en 

banc), cert, denied 406 U.S. 950 (1972) ............................. 8
NAACP and United States v. Allen, 493 F.2d 614 (5th 

Cir. 1974) ....................................................................................  8,9
Porcelli v. Titus, 431 F.2d 1254 (3rd Cir. 1970), cert-, denied

402 U.S. 944 (1971) ..................................................................  9
Puntolillo v. New Hampshire Racing Commission, et a!.,

375 F.Supp. 1089 (D.N.H. 1974) .........................................  6
Rios and United States v. Steamfitters, Local 638, 501 F.2d 

622 (2nd Cir. 1974) ..................................................................  8
Schaefer v. Tannian, 7 EPD 1)9404 (E.D. Midi. 1974) . . . .  9
Shield Club v. City of Cleveland, 370 F.Supp. 251 (N.D.

Ohio 1972) ................................................................................... 9
Sibley Memorial Hospital v. Wilson, 448 F.2d 1338 (D.C.
; Cir.. 1973).    6

Singleton v. Jackson, Municipal Separate School Dist., 419
F.2d 1211 (5th Cir. 1969) (en bane) .................................  8

Stamps and United States v. Detroit Edison Co., 365 F.
Supp. 87 (E.D. Mich. 1973), aff’d in relevant part,
515 F.2d 301 (6th Cir. 1975), cert, filed 1975 ................... 9

United Jewish Organizations of Williamsburg v. Carey, ......
U.S. 45 U.S.L.W. 4221 (March 1, 1977) ..................... 14

United States v. Bethlehem Steel Corp., 446 F.2d 652 ( 2nd
Cir. 1971) ....................................................................................  12

United States v. Central Motor Lines, 338 F.Supp. 352
(W.D.N.C. 1971) ......................................................................  9

United States v. City of Chicago, 416 F.Supp. 788 (N.D.
111. 1976), aff’d ...... F .2 d ......  (7th Cir. 1977) ................... 9

United States v. Jefferson County Bd. of Ed., 372 F.2d 
836 (5th Cir. 1966), aff’d en banc 380 F.2d 385 (1967), 
cert, denied sub nom.. Caddo Parrish School Bd. v.
United States, 389 U.S. 840 (1967) ........................................  8

United States v. Lee Way Motor Freight, Inc., 7 EPD 1)9066
(W.D. Okla. 1973) .................................................................... 9

United States v. Ironworkers, Local 10, 6 EPD 1)8735
(W.D. Mo. 1973) ........................................................................  9

United States v. Sheet Metal Workers, Local 10, 3 EPD 
1)8068 (D.N.J. 1970) (preliminary injunction), 6 EPD 
1)8715, 1)8717 (D.N.J. 1973) (final order) ............................. 9



IV T able oe A u t h o r it ie s  C ited

Pages
United States v. Lathers, Local 46, 471 F.2d 408 (2nd Cir.

1973), cert, denied 412 U.S. 939 (1973) .............................  8
United States v. Ironworkers, Local 86, 443 F.2d 544 (9th 

Cir. 1971), cert, denied 404 U.S. 984 (1971), aff’g 315
F.Supp. 1202 (W.D. Wash. 1970) .......................................  8

United States v. IBEW , Local 212, 472 F.2d 634 (6th Cir.
1973)   8

United States v. IBEW , Local 357, 356 F.Supp. 104 (D.
Nev. 1972) ................................................................................... 9

United States v. Masonry Contractors Ass’n  of Memphis,
Inc., 497 F.2d 871 (6th Cir. 1974) .......................................  8

United States v. United States Steel Corp., 5 EPD TJ8619 
(N.D. Ala. 1973) ........................................................................  9

Vulcan Society of New York City F ire  Dept. v. Civil 
Service Commission of New York, 490 F.2d 387 (2nd Cir.
1973) ................................................... .................... ....................  8

Codes
California Business and Professions Code, §2168 ................... 5
California Labor Code:

§§1410, et seq............................................................................  1
§1412 ......................................................................................... 2
§1420 ....................................     2

Constitutions
United States Constitution:

F ifth  Amendment ..................................................................  10
Fourteenth Amendment ........................................................  9

Rules
United States Supreme Court Rules, Rule 42(2) ................. 1

Statutes
42 U.S.C. §1983 ..............................................................................  9
Title VII, 1964 Civil Rights Act, as amended, 42 U.S.C.

§§2000e et seq........................................................................ 5 ,6 ,12,14
Voting Rights Act of 1965, as amended, 42 U.S.C. §§1973 

et seq................................................................................................  14

Texts
Knauss, Developing a Representative Legal Profession, 62 

A.B.A.J. pp. 591, 593 (1976) 5



Jtt tljp £upratt? (Court
OF T H E

United States
O c t o b e r  T e r m , 1976

No. 76-811

R e g e n t s  o f  t h e  U n iv e r s it y  o f  C a l if o r n ia , 

Petitioners,
vs.

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

On Writ of Certiorari to the Supreme Court of California

BRIEF OF THE FAIR EMPLOYMENT PRACTICE COMMISSION 
OF THE STATE OF CALIFORNIA, AMICUS CURIAE

INTEREST OF AMICUS CURIAE1

The Amicus Curiae, the F a ir Employment Practice 
Commission, is an official governmental entity of the 
State of California created in 1959 pursuant to the 
F a ir Employment Practice Act, California Labor 
Code §§1410, et seq. The enactment of the F air Em­
ployment Practice Act was a recognition by the leg­
islature that discrimination in employment against 
various groups is a grave problem plaguing society.

^Letters from counsel for the parties to this action, which 
consent to the filing of the Brief for the Amiens Curiae, have 
been filed with the Clerk of the Court pursuant to the U. S. 
Supreme Court Rule 42(2).



2

The jurisdiction of the F a ir Employment Practice 
Commission, sometimes hereinafter referred to as the 
Commission, has been expanded beyond the area of 
employment and now extends to the prevention and 
elimination of discrimination in housing and public 
accommodations and to the conciliation of community 
disputes born of discriminatory practices. While the 
issues before the court in this case do not arise from 
the factual context of a traditional employer-employee 
or employer-applicant relationship, the instant, matter 
has critical import to the work of the Commissi on 
both in pursuit of its general mandate—the prevention 
and elimination of discrimination in employment—and 
in carrying out one of its specific charges—the barring 
of unnecessary and unlawful discrimination in the 
access to employment opportunity.2

The inter-relationship between education and em­
ployment opportunity, particularly in specialized

Specifically, the California statute speaks of “The opportunity 
to seek . . . employment without discrimination . . .  is hereby 
recognized as and declared to be a cavil right.”, §1412 California 
Labor Code, and provides in part as follows:

1420. I t  shall be an unlawful employment practice, unless 
based upon a bona fide occupational qualification, or, except 
where based upon applicable security regulations established 
by the United States or the State of California: . . .
(e) For any person to discriminate against any person in 
the selection or training of that person in any apprenticeship1 
training program or any other training program leading to 
employment because of the race, religious creed, color, 
national origin, ancestry, physical handicap, medical condi­
tion, m arital status, or sex of the person discriminated 
against.



3

professional areas such as medicine, is undeniable. 
Membership in the medical profession is virtually im­
possible absent access to and successful participation 
in a full and accredited medical school program. Thus, 
the decision of a medical school as to whether or not 
to grant admission to an individual can, and often 
does, have the effect of completely excluding that per­
son from a professional employment opportunity. 
Moreover, the selection practices and decisions made 
in the admission process and the array and type of 
factors on which that process is based are highly 
analogous in substance and concept to many pre- 
employment selection situations in the traditional 
employment context.

While the Commission is deeply concerned about 
the immediate effect that the California Supreme 
Court decision will have on the access of ethnic mi­
norities to the medical profession, an equally impor­
tant interest is present in the potentially decimating 
effect that decision will have on the future of volun­
tary affirmative action by employers.

Finally, it should be noted that the Commission 
recognizes the number of other Amici Curiae submis­
sions and the detail of briefing submitted to this court 
will result in exhaustive and possibly redundant argu­
ment. In  light of this, the following brief will simply 
confine itself to highlighting a few of the issues par­
ticularly important to this Amicus Curiae, the inter­
relationship of employment law to this issue, some 
brief analysis of the fundamental legal issue, and re­
view of the legitimacy or illegitimacy of alternative 
approaches.



4

SUMMARY OF ARGUMENT

(1) The operation or impact of the admissions policy 
of a major medical school directly affects and 
almost absolutely controls access to professional 
employment opportunity as a physician. There­
fore, legal scrutiny of any such program must 
necessarily involve consideration of employment 
discrimination implications.

(2) Consideration of race or ethnicity in governmen­
tal action is not per se prohibited under the Con­
stitutional and statutory decisions of this court. 
This is particularly so where the official action, 
like the medical school’s special admission pro­
gram, was remedial in nature, was benignly con­
ceived to meet a compelling public policy need, 
and was so circumscribed as to avoid the type of 
invidious discrimination which the courts have 
specifically forbidden.

(3) Special admission programs like the one at 
issue here represent the most efficient and timely 
mechanism for insuring a meaningful access of 
ethnic minorities to the medical profession. The 
alternatives offered by the majority opinion 
below are impractical, inapplicable, and specula­
tive. Adherence to a few sound guidelines of 
limitation should render special or preferential 
selection programs permissible.



5

ARGUMENT

I
THE ADMISSION DECISIONS AND POLICIES OF MEDICAL 

SCHOOLS SUCH AS THE UNIVERSITY OF CALIFORNIA AT 
DAVIS REPRESENT A VIRTUALLY ABSOLUTE CONTROL OF 
ACCESS TO PROFESSIONAL EMPLOYMENT AS A PHYSICIAN

Successful matriculation from an approved medi­
cal school is a prerequisite to licensing as a physi­
cian in California, §2168 California Business and 
Professions Code, as it is in most states. I t  is self- 
evident that, in almost all instances, absent an op­
portunity to attend such a school, a career as a 
physician is precluded. Since only a small num­
ber of those seeking admission to accredited medical 
schools like U.C. Davis can be accepted, the control 
and outcome of the decision as to admission is, in it­
self, determinative of the career opportunity.

In  the related context of admission to law school, 
one commentator has noted:

“ A student denied admission to law school is vir­
tually denied admission to the profession. In  
1974, more than thirty-three thousand persons 
were admitted to practice, of whom only four 
prepared by law office study.”

Knauss, Developing a Representative Legal Profes­
sion, 62 A.B.A.J. 591, 593 (1976).

The lower Federal Courts have, in generally com­
parable situations, held that control of access to em­
ployment opportunities represents an employment 
practice within the meaning of the principal federal 
employment discrimination statute, Title Y II  of the 
1964 Civil Rights Act, as amended, 42 U.S.C. §§2000e



6

et seq. In  Puntolillo v. New Hampshire Racing 
Commission, et al., 375 F.Supp. 1089 (DJST.H. 1974), 
the district court held a state licensing agency and 
racing association were proper defendant “employ­
ers” under Title Y II  because they controlled the 
plaintiff driver-trainer’s access, to employment oppor­
tunity, even though the harness horse owners were 
the traditional employers of the driver-trainers. Sibley 
Memorial Hospital v. Wilson, 448 F.2d 1338 (D.C. 
Cir. 1973), similarly held an action could be main­
tained under Title V II against a hospital which 
referred plaintiff nurses by a registry system to 
patients requesting such services. The patients, eon- 
cededly, were the direct employers, but the hospital 
was held to exercise control of access to the employ­
ment opportunity.

In  light of the foregoing, we think it is but a short 
analytical step to acknowledge the kindred application 
of the principles evolved in employment discrimina­
tion law under Title Y II  and related state statutes to 
the subject situation where the university medical 
school controls access to the medical profession. The 
California Supreme Court essentially and erroneously 
rejected this formulation; in so doing, it was also able 
to reject the well-developed analytical tests under 
Title Y II  that might have raised substantial questions 
about the university’s “traditional” selection criteria. 
The Commission believes that only after this frame­
work is adopted, can a voluntary special admission 
program of the nature challenged here be properly 
judged as to its legality.



7

I I
CONSIDERATION OF RACE AND ETHNICITY AS FOUND IN THE 

MEDICAL SCHOOL ADMISSIONS PROGRAM IS NOT PER SE 
UNCONSTITUTIONAL AND SHOULD BE PERMISSIBLE IN 
THE CONTEXT OF A REMEDIAL AND BENIGNLY CON­
CEIVED PROGRAM WHICH WAS CAREFULLY CIRCUM­
SCRIBED TO MINIMIZE ANY HARMFUL EFFECTS

I t  has been well established by this court that 
where a classification is one which has been denomi­
nated by the court to be “inherently suspect” or the 
individual interest affected is a fundamental constitu­
tional right, the court must determine whether the 
classification or exclusion is necessary to promote a 
compelling state interest. Dwm, v. Blumstein, 405 IT.S. 
330 (1972). Equally fundamental is the principle that 
classifications based on race are inherently suspect 
and carry a very heavy burden of justification, see, 
e.g., Korematsu v. TJ.S., 322 U.S. 214 (1944).

But, every classification by race is not odious. 
While as a threshold matter such are at least suspect, 
they can be justified. As the California court recog­
nized in the case of such racial classification, not 
only must its purpose serve a compelling state inter­
est, but it must be demonstrated that there are no 
reasonable alternative ways to achieve the state’s goals 
which impose a lesser limitation on the rights of the 
group disadvantaged by the classification. Balike v. 
Regents of the University of California, 18 Cal.3d 
34 (1976).3 However, classifications by race are not 
per se unconstitutional and have been upheld where

3The modification to the California Supreme Court’s opinion 
is reported at 18 Cal.3d 252 b. However, the modification does not 
affect any of the points raised in this brief.



8

the purpose has been to benefit rather than to disable 
minority groups. Balike, supra, at 46.

Race conscious remedies have also been developed 
and ordered to remedy school desegregation4 and have 
also been formulated and validated by the courts in 
a variety of other situations.5

4See, e.g., United States v. Jefferson County Bd. of Ed., 372 
F.2d 836, 876 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 
(1967) cert, denied sub nom. Caddo Parrish School Bd. v. United 
States, 389 U.S. 840 (1967); Keyes v. School Dist. No. 1, Denver, 
521 F.2d 465, 475-77 (10th Cir. 1975); Kelly v. Guinn, 456 F.2d 
100, 110 (9th Cir. 1972). Race consciousness is also utilized in 
hiring of teachers and replacement of those displaced by deseg­
regation orders. Adams v. Rankin County Bd. of Ed., 485 F.2d 
324 (5th Cir. 1973); Lee v. Macon County Bd. of Ed., 453 F.2d 
1104 (5th Cir. 1971) ; McLaurin v. Columbia Municipal Separate 
School Dist., 478 F.2d 348 (5th Cir. 1973) ; United States v. Je f­
ferson County Bd. of Ed., supra; Singleton v. Jackson, Municipal 
Separate School Dist., 419 F.2d 1211 (5th Cir. 1969) fen banc.).

5The following myriad of cases represent only some of the other 
cases where such relief has been ordered: United States v. Iron­
workers, Local 86, 443 F.2d 544, 553-54 (9th Cir. 1971), cert 
denied, 404 U. S. 984 (1971), aff’g 315 F.Supp. 1202, 1247 
(W.D. Wash. 1970) ; Boston Chapter, N.A.A.C.P. v. Beecher, 
504 F.2d 1017 (1st Cir. 1974); Franks v. Bowman Transportation 
Co., 495 F.2d 398 (5th Cir. 1974) ; Morrow v. Crisler, 491 F.2d 
1053 (5th Cir. 1974) (en banc), cert, denied, 406 U.S. 950 
(1972) ; United States v. IB E W , Local 212, 472 F.2d 634, 636 
(6th Cir. 1973) ; United States v. Masonry Contractors Ass’n of 
Memphis, Inc,, 497 F.2d 871, 877 (6th Cir. 1974); United States 
v. Lathers, Local 46, 471 F.2d 408, 413 (2nd Cir. 1973), cert, 
denied 412 U.S. 939 (1973); Bridgeport Guardians, Inc. v. Mem­
bers of Bridgeport Civil Service Commission, 482 F.2d 1333, 1340- 
41 (2nd Cir. 1973) ; Vulcan Society of New York City Fire Dept, 
v. Civil Service Commission of New York, 4901 F.2d 387 (2nd Cir. 
1973); Rios and United States v. Steamfitters, Local 638, 501 
F.2d 622 (2nd Cir. 1974); Commonwealth of Pennsylvania v. 
Sebastian, 480 F.2d 917 (3rd Cir. 1973), aff’g  368 F.Supp. 854, 
856 (W.D. Pa. 1972) ; Commonwealth of Pennsylvania v. O’Neill 
473 F.2d 1029, 1031 (3rd Cir. 1973) (en banc), aff’g in relevant 
part, 348 F.Supp. 1084 (E.D. Pa. 1972); Asbestos Workers, Local 
53 v. Vogler, 407 F.2d 1047, 1104 (5th Cir. 1969); Buckner 
v. Goodyear Tire & Rubber Co., 476 F.2d 1287 (5th Cir. 1973) 
aff’g 339 F.Supp. 1108, 1125 (N.D. Ala. 1972); N.A.A.C.P. and



9

The Court of Appeals for tlie Third Circuit has 
validated preferential hiring in Porcelli v. Titus, 431 
F.2d 1254 (3rd Cir. 1970), cert, denied, 402 U.S. 944 
(1971), an action brought by white teachers against a 
school board pursuant to 42 U.S.C. 1983 and the Four­
teenth Amendment alleging discrimination due to the 
suspension of an appointment list and suspension of ap­
pointments from that list. Instead of appointing di­
rectly from the list, the board appointed qualified 
blacks to the faculty in response to a change in the 
racial make-up of the school system. Color was con­
sidered as one factor and the fact was fully admitted 
by all parties. The Court of Appeals rejected white 
plaintiffs’ contentions that this suspension of the pro­
motional list was a violation of their constitutional 
rights under the Fourteenth Amendment. The court 
stated, “ state action based partly on considerations 
of color, when color is not used per se, and in fur-

United States v. Allen, 493 F.2d 614, 617-22 (5th Cir. 1974); 
Shield Club v. City of Cleveland, 370 F.Supp. 251 (N.D. Ohio 
1972); League of United Latin American Citizens v. City of 
Santa Ana, 410 F.Supp. 873 (C.D. Cal. 1976); Schaefer v. 
Tannian, 7 B.P.D. 1)9404, at 7798 (E.D. Mich. 1974) (Sex dis­
crimination) ; United States v. Sheet Metal Workers, Local 10, 3 
EPD 1)8068, at 6191 (D.N.J. 1970) (preliminary injunction), 6 
EPD 1[8715, at 5157, 1)8717,. at 5177 (D.N.J. 1973) (final order)- 
United States v. IB E W , Local 357, 356 F.Supp. 104 (D. Nev. 
1972) ; United States v. Ironworkers, Local 10, 6 EPD 1)8735 
(W.D. Mo. 1973); United States v. Central Motor Lines, 338 
F.Supp. 352, 563 (W.D.N.C. 1971) ; Stamps and United States 
v. Detroit Edison Co., 365 F.Supp. 87 (E.D. Mich. 1973), aff’d  
in relevant part, 515 F.2d 301 (6th Cir. 1975), cert, filed 1975; 
United States v. United States Steel Corp., 5 EPD 1)8619 (N.D. 
Ala. 1973); United States v. Lee Way Motor Freight, Inc., 7 
EPD 1)9066 (W.D. Okla. 1973) ; EEOC v. Lithographers and 
Engravers, Local 2P, 11 EPD 1)10,735 (D.C. Md. 1975); United 
States v. City of Chicago, 416 F.Supp. 788 (N.D. 111. 1976) aff’d,
......  F.2d .....  (7th Cir. 1977) ; Castro v. Beecher, 386 F. Supp.
1281 (D.C. Mass. 1975) (on remand from 1st Cir. 459 F.2d 725).



therance of a proper governmental objective, is not 
necessarily a violation of the Fourteenth Amendment.” 
Here, also, because all applicants deemed eligible for 
the special admissions program were determined 
qualified before selection for admission, race can not 
be isolated as the only factor in that process.

Equally telling is the fact that school integration 
is undeniably a proper state objective, see Brown v. 
Bd. of Ed., 347 U.S. 483 (1954). In  the situation 
presently before this court not only is the integration 
of the school itself at stake, but also the integration of 
the medical profession. As emphasized earlier, virtu­
ally the only way to enter the medical profession is 
through educational institutions such as the univer­
sity.

Recently, in Mancari v. Morton, 417 U.S. 536 
(1974), this court upheld the constitutionality of a 
federal statute against a claim that it violated the 
F ifth  Amendment in granting hiring preferences for 
a race, American Indians, within the Bureau of In ­
dian Affairs. The court noted that Congress was aware 
that the proposed preference would result in employ­
ment disadvantages to non-Indians within the BIA. 
Nevertheless, the holding was that the Indian prefer­
ence did not constitute invidious racial discrimination 
in violation of the due process clause of the F ifth  
Amendment, Bolling v. Sharpe, 347 U.S. 497 (1954). 
While in Mancari, the unique relationship of Congress 
with Indians was pointed out, as was the unique 
“debt” of the American people, the Commission sub­
mits that the governmental interest is equally strong



11

in situation presently at issue. Professions, such as 
medicine, have traditionally been overwhelmingly pop­
ulated by white males; that this is in part a result of 
an historical pattern of slavery, involuntary servitude 
and peonage needs no citation. The University of 
California is not isolated from society and, as a public 
institution, it had a compelling governmental interest 
in integrating its medical school and creating mean­
ingful access to educational and professional opportu­
nities for groups who have previously been discour­
aged, excluded, and “disqualified” in percentages 
grossly disproportionate to their numbers.

Special admission programs such as the one at issue 
are essentially remedial and are designed to make vic­
tims of past discrimination whole. In  employment 
discrimination cases, the courts have addressed them­
selves to the fact that in both the jurisprudence of 
torts and discrimination law the basic objective of 
damages is the same, to make the injured party whole 
to the extent that it can be done, see, e.g., Meadows v. 
Ford Motor Go., 510 F.2d 939 (6th Cir. 1975). The 
object of corrective action in discrimination cases is 
to place the parties in the position they would have 
been but for the discrimination. The presence of iden­
tified individual persons who have been discriminated 
against has not been a necessary prerequisite to order­
ing affirmative relief to eliminate the present effects 
of past discrimination. Carter v. Gallagher, 452 F.2d 
315, 330 (9th Cir. 1972) cert, denied, 406 TT.S. 950 
(1972). In  situations where individuals who were the 
victims of past discrimination are not readily identi-



12

liable, class relief is tlie proper remedy. U.S. v. Beth­
lehem Steel Gorp., 446 F.2d 652 (2nd Cir. 1971).

Special admission programs constitute a form of 
class relief. The purpose of special admission pro­
grams is to place minorities or other victims of dis­
crimination in the place they would have been 
but for a history of societal discrimination. Jus­
tifications for affirmative action are equally persuasive 
whether or not the particular institution has been 
guilty of or admits discrimination in the past. Al­
though some beneficiaries of the affirmative action 
programs may not as individuals have been direct vic­
tims of past discrimination by the managers of the 
program, minorities as a class have been categorized 
and victimized throughout and at all levels of society. 
Thus affirmative and corrective action in such in­
stances is a form of class relief.

An argument which has been raised by defendants 
in the context of Title V II  cases is that relief can be 
provided only to identifiable members of specific past 
discrimination. This argument was recently rejected
in EEOC v. American Telephone and Telegraph, .....
F.2d ..... , (3rd Cir. 1977) 14 E PD  H7506, affirming
the approval of a consent decree which was designed 
to benefit the class of persons who were found to have 
been underutilized in a discriminatory pattern and 
practice. We submit that the university, in implement­
ing its special program, had an interest, avowed or not, 
in benefiting a class of persons who had been excluded 
from participation in the public medical education 
which the University of California system provides.



13

In  addition, as a comprehensive educational system, 
the university must bear responsibility for the his­
torical absence and exclusion of minorities from 
undergraduate educational opportunities. For the rea­
sons stated above, the Commission wishes to em­
phasize the remedial nature and context of these 
programs.

As stated earlier, consideration of race or ethnicity 
in governmental action is not per se prohibited. 
Moreover, a specific “finding” of past discrimination 
is not required as a pre-requisite. In  a recent case,
Germann v. K ipp, .....  F.Supp........ , 14 EPD  117504
(W.D. Mo. 1977) a District Court addressed itself 
to the issue of whether affirmative action can be 
taken on a voluntary basis, absent a judicial finding 
of past discrimination. The court stated that after 
a finding of past discrimination, a court, in the ex­
ercise of its broad equitable power, can compel 
implementation of an affirmative action plan including 
quota relief. However, the court noted in its decision 
upholding a voluntary plan that the foregoing propo­
sition does not mandate the opposite conclusion that 
an employer may not voluntarily implement a rea­
sonable short-term affirmative action plan to remedy 
the effects of historical discrimination.

In  the context of a voting rights case decided 
during the current term, this court has faced the 
argument that even if racial considerations might 
be used to remedy the residual effects of past uncon­
stitutional reapportionments, absent specific findings 
of prior discrimination in New York, the state cannot



14

justify the affirmative remedy of reassigning white 
voters to increase the size of black majorities in cer­
tain districts. In  response, this court stated that 
“ [t]he permissible use of racial criteria is not con­
fined to eliminating the effects of past discriminatory 
districting or apportioning.” United Jewish Organiza­
tions of Williamsburg v. Carey, .....  U.S........., 45
U.S.L.W. 4221 (March 1, 1977). While the stated 
basis of the decision in that case is the Voting Rights 
Act, 42 U.S.C. §§1973 et seq., the considerations are 
equally applicable in the case at bar. I f  the court were 
to hold that a finding of discrimination is required 
prior to taking voluntary affirmative action, it would 
be a tremendous setback to the progress that has been 
made in the area of employment discrimination and 
would severely hinder any future attempts to eradi­
cate discrimination in other areas. We submit that 
such a result would clearly frustrate the purposes and 
intent of Title V II and other remedial federal stat­
utes and orders, as well as state statutes such as the 
California F a ir Employment Practice Act.

Finally, it should be recognized that the special 
program at issue in this case was implemented with 
the intent to remedy past exclusion and increase 
access, and was not implemented with invidious intent 
to discriminate even if in operation it indirectly in­
fringes on the rights of non-minorities. As invidious 
discrimination occurs only if the classification ex­
cludes, disadvantages, isolates or stigmatizes a minor­
ity or is designed to segregate the races, Brown v. 
Bd. of Ed., supra, in the present situation none of 
the stated concerns are present; quite the con-



15

trary, the program is tailored to alleviate such con­
cerns. An emerging theory in this field postulates that 
where a member of the dominant majority who com­
plains of so-called “reverse discrimination” cannot 
show that the discrimination is racially disparaging, 
demeaning, insulting or even discriminatory as to the 
majority group, though it is damaging to him, such 
complainant cannot show that it tends to keep his ra­
cial group in or relegated it to a subordinate position 
in our society. Thus under this approach, there is 
simply no unlawful discrimination present against 
the respondent here.

I l l
THE ALTERNATIVES TO SPECIAL SELECTION PROGRAMS 

POSED BY THE CALIFORNIA SUPREME COURT FAIL TO 
MEET THE NEED; THE CURRENT VOLUNTARY PROGRAM 
REPRESENTS AN EFFICIENT AND TIMELY MECHANISM 
FOR INSURING MEANINGFUL ACCESS OF MINORITIES TO 
THE PROFESSION AND SHOULD BE PERMISSIBLE IF  CON­
CEIVED AND OPERATED IN A CAREFULLY CIRCUMSCRIBED 
FASHION

In  the decision below, the majority of the California 
Supreme Court suggested that the Petitioner had al­
ternative procedures available which could accomplish 
the basic goals of the special admissions program with 
a less detrimental impact to the rights of the majority 
group, 18 Cal.3d at 53-57. The alternatives mentioned 
are not alternatives but really unfounded speculation 
that bear little relation to realistic or workable op­
tions for the future. The suggested alternatives were 
three—increasing the number of first year medical



16
positions available, instituting a more aggressive 
affirmative recruiting program, and operating a pro­
gram which, in both intent and effect, benefits “ dis­
advantaged” students of all races. These are discussed 
in order below.

Increasing medical school positions is a seductive 
idea and, in the abstract, the sheer enormity of de­
mand for such slots supports that proposal. However, 
unless the court intended a six or seven-fold expansion 
in medical school size, such growth will do little to 
insure the meaningful access of minorities to the med­
ical profession, while the admissions decision contin­
ues to be controlled by traditional criteria. The 
tremendous number of applications, originated in ov­
erwhelming number by students of majority origin, is 
just one of the factors precipitating special admis­
sions. The severe gap between minority and majority 
performance when measured and relatively ranked by 
traditional selection standards is the second factor. 
This gap is such that a doubling, tripling or even 
quadrupling of the medical school student body size 
is, based on actual experience, unlikely to cause any 
real increase in minority presence beyond the sym­
bolic level. Moreover, from a very practical perspec­
tive, neither the legislature nor the private sources 
which fund medical schools have shown any inclina­
tion to provide the massive resources necessary for a 
doubling, let alone a six-fold increase in the medical 
school population.

Increased and more aggressive recruiting of minor­
ities is also a flawed approach. Recruiting of this type



IT

is the very cornerstone of present special admissions 
programs. Simply increasing the number of minority 
applicants will do little, if anything, to increase the 
likelihood of their admissibility for, as discussed im­
mediately before, the relative gap between per­
formance of minority and majority groups under 
traditional criteria would remain. Also, because most 
medical schools aggressively recruit minorities, the 
“economics of the marketplace” operates to place a 
general ceiling on the “qualifications” of minority 
candidates. I f  the court will excuse a disgression into 
stereotyping, this concept can be illustrated briefly. 
Minority applicants, like all others, will apply to and 
attend the “best” institution available to them. Con­
sequently, it has often been observed that the minori­
ties admitted under special or disadvantaged 
programs at Yale or Harvard, just to cite two pres­
tigious institutions, possess “qualifications”, as mea­
sured by traditional criteria, that would place them 
among the top or elite if they chose to attend a local 
but far less known and prestigious institution of 
higher learning. Of course, the foregoing analysis 
might also suggest that if all of the major or presti­
gious institutions were to eliminate, or be forced to 
eliminate, their special admissions programs, then 
that narrow class of minority applicants who would 
otherwise have gained admittance would still be able 
to attend the smaller and less known institutions as 
regular admittees. That was not the point of our pos­
tulation, and it would result in a near complete ex­
clusion of minorities from the major educational



18
institutions of the United States-—a result we think 
best quickly rejected.

The third alternative proposed by the California 
Court is that of revamping special admissions pro­
grams to focus on the ‘'disadvantaged” and use of 
“more flexible” admission standards. Initially, it 
should be noted that this approach is markedly similar 
to what the university claimed it was in fact doing. 
Ignoring that irony though, it should be clear that if 
the compelling state interest is that of ethnically in­
tegrating the medical school and of insuring mean­
ingful access to the medical profession for ethn ic 
minorities, this alternative may well ignore that in­
terest. I f  simple economic status is equated with 
disadvantage, then non-minority persons are for that 
purpose subject to “special” consideration and because 
of their numerical superiority within the class of eco­
nomically disadvantaged are likely to predominate 
and even completely fill the special admissions posi­
tions. I f  the previously described purpose of the pro­
gram is to be addressed, then ethnicity must somehow 
be considered, and the declared reliance on disad­
vantaged status or other “flexible” admission factors 
becomes highly misleading.

As they stand, voluntary affirmative action pro­
grams or selection programs that have a carefully 
limited preferential factor are the backbone of mean­
ingful progress in many areas of civil rights accom­
plishment. Court orders and executive or governmental 
agency mandates may be the cutting edge of change, 
but all recognize that voluntary actions represent the



19

fru it and goal of these efforts. W ithout them the full 
range of opportunities for etlmic minorities will be 
unnecessarily and perhaps irreparably delayed.

Finally, we feel compelled to express our apprehen­
sion for the future of voluntary remedial selection 
programs which contain preferential elements only 
limitedly distinguishable from or based on ethnicity. 
Such programs, we believe, play an important and 
presently necessary role. We suggest they are and 
should be permissible where they:

(1) are only applied in a context of a relevant 
historical disadvantage to an identified group 
or class;

(2) are temporary in nature;
(3) are fairly and uniformly applied under their 

own terms and detail;
(4) operate to select from among those meeting 

valid and necessary threshold qualification 
criteria for the opportunity or position;

(5) are not in irreconcilable conflict with vested 
righ ts;

(6) are carefully drawn and limited so as to 
minimize the impact on individuals of the 
historically advantaged group; and

(7) are not applied to afford any absolute or 
near absolute preference to any given 
individual, except where actual individual 
victims of invidious discrimination are 
identified and no conflict with vested rights 
is present.



20

When these circumstances are met, then we feel vol­
untary special selection programs are proper and 
permissible.

CONCLUSION

For the reasons stated, the judgment of the Su­
preme Court of the State of California should be re­
versed or in the alternative remanded to reopen the 
record for supplementation and consideration in light 
of the issues discussed within this brief.

Respectfully submitted,
C h a r l e s  E. W il s o n ,
L e o n o r a  M. S t o p o l ,

F e r n a n d o  G a r c ia ,

W il l ia m  H .  H a s t ie , J r .,
Fair Employment Practice Commission,
Post Office Box 603,
San Francisco, California 94101,

Attorneys for the Amicus Curiae.

Dated, June 1, 1977.