Bakke v. Regents Brief for the United States as Amicus Curiae
Public Court Documents
September 1, 1977
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Brief Collection, LDF Court Filings. Bakke v. Regents Brief for the United States as Amicus Curiae, 1977. e941d759-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fdc545ad-0f66-4434-b038-7766b9d5df9c/bakke-v-regents-brief-for-the-united-states-as-amicus-curiae. Accessed May 12, 2025.
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No. 76-811
J n t o ^ugrtrne fl^urt of flic United S tates
October Term, 1977
T he R egents of the U niversity of California,
PETITIONER
V.
A l l a n B a k k e
ON WHIT OF CERTIORARI TO TUB SUPREME COURT
OF CALIFORNIA
BRIEF for the united states as amicus curiae
GRIFFIN B. BELL.
Attorney General,
WADE H. McCREE, Jr.,
Solicitor General, ■ «
DREW S. DAYS, H I,
Aesittant Attorney General,
LAWRENCE G. WALLACE,
Deputy Solicitor General,
FRANK H. EASTERBROOK,
Aseiitant to the Solicitor General,
BRIAN K. LANDSBERQ,
JESSICA DUNS AY SILVER,
Attorney»,
Department of Juttlce,
Waahinyton, D.O. 20530.
I N D E X
Questions presented__________________________________
Interest of the United States__________________________
Statement __________________________________________
A. F a cts________________________________________
1. The regular admissions process__________
2. The special admissions program__________
a. Racial composition of applicants and
students ______________________
b. Eligibility for the special admissions
program ______________________
c. The process of selection___________
d. Purpose of the program__________
3. Respondent’s application________________
B. The state courts’ opinions______________________
1. The Superior Court_____________________
2. The Supreme Court of California________
Introduction and summary of argument________________
Argument __________________________________________
I. Race may be taken into account to counteract the
effects of prior discrimination_______________
A. This Court has held that minority-
sensitive decisions are essential to
eliminate the effects of discrimination
in this country___________________
B. Both the legislative and executive
branches of the federal government
have adopted minority-sensitive pro
grams for the purpose of eliminating
the effects of past discrimination___
(i)
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10
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14
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23
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30
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33
245—950— 77-----------1
II
Argument—Continued , , .
II. The University could properly conclude that
minority-sensitive action was necessary to
remedy the lingering effects of past discrimi
nation ----------------------------- - j
A. Minority-sensitive relief is not limited
to correction of discrimination perpe
trated by the institution offering
relief -----------------------------------------
B. Discrimination against minority groups
has hindered their participation in the
medical profession-------------- -— —
III. The central issue on judicial review of a minority-
sensitive program is whether it is tailored to
remedy the effects of past discrimination--------
A. A program is tailored to remedy the
effects of past discrimination if it
uses race to enhance the fairness of
the admissions process--------------------
15. There is no adequato alternative to the
use of minority-sensitive admissions
criteria-------------------------- -— -------
IV. The Supreme Court of California applied incor
rect legal standards in evaluating the constitu
tionality of the special admissions program—
A. The declaratory judgment forbidding
the use of minority-sensitive admis
sions programs should be reversed—
B. Whether respondent was wrongfully
denied admission to the medical
school should not be decided on the
present record-------------------------------
Conclusion----------------------------------------------------------------
Appendix A ---------------------------------------------------------------
Appendix ------------------------------------------------ -
Appendix ----------------------------------------------------------------
Appendix -----------------------------------------------------------------
in
CITA TIO N S
Cases:
Albemarle Paper Go. v. Moody, 422 U.S. 405_______ 24, 32
Anderson v. Martin, 375 U.S. 399_________________ ’30
Associated General Contractors of Massachusetts, Inc.
v. Altschuler, 490 F. 2d 9, certiorari denied, 416 U S
957 __________________________________________ 37
Boston Chapter, N.A.A.C.P.. Inc. v. Beecher, 504 F.
2d 1017, certiorari denied, 421 U.S. 910___________ 30
Brown v. Board of Education, 347 U.S. 483_________ 41
Califano v. Webster, Xo. 76-457, decided March 21,
1977 -------------- ---------------------------------------- 28,39, 64-65
Castaneda v. Partida, Xo. 75-1552, decided March 23,
1977-------------- . . . . -------------------------------------------- 54
Contractors Association of Eastern Pennsylavina v.
Secretary of Labor, 442 F. 2d 159, certiorari denied,
404 U.S. 854 _________________________ 34
Craig v. Boren, 429 U.S. 190_______________________ 54 65
Cypress v. Newport News General and Nonscctarian
Hospital Association, 375 F. 2d 648______________ 48
Dayton Board of Education v. Brinkman, Xo. 76-539,
decided June 27, 1977___________________________ 31
DeFunis v. Odegaard, 82 Wash. 2d 11, 507 P. 2d 1169,
vacated as moot, 416 U.S. 312____________________ 49
Dothard v. Rawlinson, Xo. 76—422, decided June 27,
1977 ----------------------------------------------------------------- 40
Drummond v. Acree, 409 U.S. 1228_________________ 53
Endo, Ex parte, 323 U.S. 283_____________________ ' 47
Franks v. Bowman Transportation Co., 424 U.S. 747__ 24 31
Gaston County v. United States, 395 U.S. 285________ ’ 56
Georgia v. United States, 411 U.S. 526_____________ 32
Green v. County School Board, 391 U.S. 430_________ 30, 54
Griggs v. Duke Power Co., 401 U.S. 424_____________ ’ 32
Hazelwood School District v. United States, Xo. 76-255,
decided June 27, 1977__________________________ 61
Hernandez v. Texas, 347 U.S. 475__________________ 44
International Brotherhood of Teamsters v. United
States, Xo. 75-636, decided May 31, 1977_______ 31,40, 55
Kahn v. Shevin, 416 U.S. 351______________________ ’ 40
Keyes v. School District No. 1, Denver, Colorado, 413
U .S .189__________________ 41
IV
Cases—Continued
Lau v. Nichols, 414 U.S. 563------------------------------------ 41
Linmark Associates, Inc. v. Township of Willingboro,
No. 76-357, decided May 2,1677---------------------------- 25,39
Lucas v. Forty-Fourth General Assembly of Colorado,
377 U.S. 713___________________________________ 54
Mathews v. Lucas, 427 U.S. 495------------------------------- 26,51
McDaniel v. Barresi, 402 U.S. 39----------------------------- 40
McDonald v. S’ante Fe Trail Transportation Co., 427
U.S. 273------------------------------------------------------------------ 52
Millikin v. Bradley, No. 76-447, decided June 27,1977_ 56
Missouri ex rel. Gaines v. Canada, 305 U.S. 33<--------
Morales v. Few? York, 396 U.S. 102------------------------- 23
Morton v. Mancari, 417 U.S. 535------------------------------- 54
' d/£. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274----------------------------------------- <2
ATort/i. Carolina State Board of Education v. Swann,
402 U.S. 43______________________________ — — 24> 31
Northeast Construction Co. v. Romney, 485 F. 2d 752— 34
60ero v. A7eic For/c City Housing Authority, 484 F. 2d
1122-------- ---------------------------------------- --------------- 37
Porcelli v. Titus, 431 F. 2d 1254, certiorari denied, 402
U.S. 944________________________ 37
Rios v. Enterprise Association, 501 F. 2d 622----------- 53
Rossetti Contracting Co. v. Brennan, 508 F. 2d 1039— 34
Simpkins v. Moses II. Cone Memorial Hospital, 323 l4.
2d 959, certiorari denied, 376 U.S. 938------------------- 47
South Carolina v. Katzenbach, 383 U.S. 301------------- 33
Springfield School Committee v. Barksdale, 348 F. 2d
2 6 1 ___________________________________________ 37
Strauder v. 1Vest Virginia, 100 U.S. 303-------------------- 37
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1--------------------------------------------------------- 30
TraUiconte v. Metropolitan Life Insurance Co., 409
U.S. 205___________________________ 39
Trans World Airlines, Inc. v. Hardison, No. 75-1126,
decided June 16,1977------------------------------------------- 52
United Jewish Organizations of Williamsburgh, Inc.
v. Carey, 430 U.S. 144---------------------- 24,32,40, 50, 51, 60
United States v. Antelope, No. 75-661, decided April 19,
1977 ______________________________________________ _________ _______________- ...................................- ......................... 54
V
Cases—Continued
United States v. Montgomery County Board of Educa- paK„
tion, 395 U.S. 225______________________________ 30
Weinberger v. Weisenfeld, 420 U.S. 636_____________ 50
Wheeler v. Barrera, 417 U.S. 402___________________ 23
Yick Wo v. Hopkins, 118 U.S. 356_________________ 47
Constitution, statutes, and regulations:
United States Constitution:
Thirteenth Amendment_______________________ 37
Fourteenth Amendment_________________ 17,18,51,52
Fifteenth Amendment________________________ 37
Civil Eights Act of 1964:
Title IV, 78 Stat. 248, 42 U.S.C. 2000c-6 _______ 3
Title VI, 78 Stat. 252, 42 U.S.C. 2000d et seq____ SI-
42 U.S.C. 2000d_______ 3
42 U.S.C. 2000d - l________________________ 35-
Title VII, 78 Stat. 253, as amended by the Equal
Employment Opportunity Act of 1972, 86 Stat.
103, 42 U.S.C. (and Supp. V) 2000e et seq.:
Section 703(j), 42 U.S.C. 2000e-2 (j)^______ 53
Section 715, 42 U.S.C. (Supp. V) 2000e-14— 36
Title IX , 78 Stat. 266, 42 U.S.C. 2000h-2_______ 3
Civil Rights of 1974, 86 Stat. I l l , Section 715, as
amended, 42 U.S.C. (Supp. V) 2000c-14....... .............. 36
Emergency School Aid Act, 86 Stat. 354, as amended,
20, U.S.C. (Supp. V) 1601 et seq_________________ 43
Public Works Employment Act of 1977, Pub. L. 95-28,
91 Stat. 116-117— __________ ___________________ 2,33
42 U.S.C. 1981___________________________________ 52
42 U.S.C. 3766(b)_________________ 53
41 C.F.R. 60-2.10________________________________ 34
45 C.F.R. Part 80________________________________ 35
45 C.F.R. 80.3(b) (6) ( i i )_________________________ 2,35
45 C.F.R. 80.5( j ) _________________________________ 35
Miscellaneous:
AAMC, Medical School Admission Requirements 1978-
1979 (1977)____________________________________
Association of American Medical Colleges, Medical
School Admission Requirements 1978-1979 (1977)_48,49
Brest, The Supreme Court, 1975 Term-, Forward: In
Defense of the Antidiscrimination Principle, 90
Harv. Law Rev. (1976)_________________________ 60
VI
Miscellaneous—Continued
Carroll, A Comparative Analysis of Three Admission/
Selection Procedures (H.E.W. Technical Paper 77- Page
D4) (1977)------------------------------------------------------- qq
Comment, The Philadelphia, Plan: A Study on the
Dynamics of Executive Power, 39 U. Chi L Rev
732 (1972)________________________________________ 34
122 Cong. Rec. S17320 (daily ed., September 30,1976) _ 53
123 Cong. Rec. 111436—II1437 (daily ed., February 24,
19 ( ( ) __ __ __ ____________ r) g
123 Cong. Rec. II6099-H6106 (daily ed., June'u"
1977) ---------------------------------------------------------------- 34
Curtis, Blacks, Medical Schools, and Society (1971) __ 45,48
Dube, Datagram: U.S. Medical Student Enrollment,
1968-1969 Through 1972-1973, 48 J. Med. Educ. 293
(1973) ------------------------------------------------------------ 46,47
Dube, Datagram: U.S. Medical Student Enrollment.
1972-1973 Through 1976-1977, 52 J. Med. Educ. 164
(1977) ---------------------------------------- 47
Executive Order 11246, 30 Fed. Reg. 12319, as amended
by Executive Order 11375, 32 Fed. Reg. 14303___ 2, 33,34
41 Fed. Reg. 38814-38815__________________________ 2 36
Gordon, Descriptive Study of Medical School Appli
cants, 1975-1976 (1977)_________________________ 47
Greenawalt, Judicial Scrutiny of “Benign" Racial
Preference in Law School Admissions, 75 Colum. L
Rev. 559 (1975)________________________________ 51
Hang and Martin, Foreign Medical Graduates in the
United States, 1970 (1971)_______________________ 46-47
Johnson, Smith and Tarnoff, Recruitment and Prog
ress of Minority Medical School Entrants 1970-1972,
50 J. Med. Educ. 713 (1975 Supp.)______________ 48,49
Kaplan, Equal Justice in An Unequal \Vorld: Equality
for the Negro—The Problem of Special Treatment,
61 Nw. U. L. Rev. 363 (1966)___________________ 54
Melton, The Negro Physician, 43 J. Med. Educ. 802
(1968) ------------------------------------------------------------ 47,48
Morais, The History of the Negro in Medicine
(1967) --------------------------------------------------- 44,45,47,48
Murray, States' Lancs on Race and Color (1951)_____ 44
Odegaard, Minorities in Medicine (1977)___________ 49
VII
Misce 11 aneous—Continued
O’Neil, Preferential Admissions: Equalizing the Ac
cess of Minority Groups to Higher Education, 80 Page
Yale L. J. 699 (1974)___________________________ 51
Policy Statement on Affirmative Action Programs for
State and Local Government Agencies, 41 Fed. Reg.
38811 _________________________________________ 2
Rcitzes, Negroes and Medicine (1958)--------------------- 45
Report of the Task Force to the Inter-Association
Committee on Expanding Educational Opportu
nities in Medicine for Blacks and Other Minority
Students (1970)_______________________________ 49
U.S. Bureau of the Census, 1970 Census, Yol. I, Char
acteristics of the Population (1973) :
California (Part 6 ) _________________________ 4,43,70
United States Summary________________ 41,42,45,46
U.S. Bureau of the Census, Current Population Re
ports, Persons of Spanish Origin in the United
States: March 1976_____________________________ 42
U.S. Bureau of the Census, Current Population Re
ports, The Social and Economic Status of the Black
Population in the United States 1 9 7 (1975)______ 42
U.S. Bureau of the Census, 1970 Census, Subject Re
ports'- Final Report PC (2)-7A , Occupational Char
acteristics; Final Report PC (2)-1C , Persons of
Spanish Origin (1973)_________________________ 46
U.S. Bureau of the Census, Subject Reports-Japanese,
Chinese, and Filipinos in the United States_______ 42
U.S. Department of Health, Education, and 'Welfare,
Office of Health Resources Opportunity, Identifica
tion of Problems in Access to Health Services and
Health Careers for Asian Americans (1976)_______ 46
Waldman, Economic and Racial Disadvantage as Re
flected in Traditional Medical School Selection Fac
tors: A Study of 1976 Applicants to U.S. Medical
Schools (1977)_________________________________ 43
Wellington and Gyorffy, Draft Report of Survey and
Evaluation of Equal Educational Opportunity in
Health Profession Schools:
Table II (1 9 7 5 )_____________________________ 49
Table V III__________________________________ 49,50
October T erm, 1977
No. 76-811
Tee R egents of the U niversity of California,
PETITIONER
V.
A l l a n B a k k e
ON WRIT OF CERTIORARI TO THE SUPMERE COURT
OF CALIFORNIA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
QUESTIONS PRESENTED
1. Whether a state university admissions program
may take race into account to remedy the effects of
societal discrimination.
2. I f so, whether, as applied to respondent, peti
tioner’s admissions process operated in a constitution
ally permissible manner.
IN T ER E ST OF THE U N IT E D STATES
Congress and the Executive Branch have concluded
that race must sometimes be taken into account in
order to achieve the goal of equal opportunity. They
have adopted numerous minority-sensitive programs,
( i )
2
which are collected in Appendix A to this brief. They
also have established several programs to assist per
sons handicapped by their language background (see
Ajrpendix B to this brief). For example, the Depart
ment of Commerce provides technical and financial
assistance to promote enterprises owned by members
of minority groups, and the Department of Health,
Education, and Welfare provides financial assistance
to help colleges and universities increase the number
of minority faculty, students, and investigators en
gaged m biomedical research. The Public Works Em
ployment Act of 1977 provides that applicants for
public works grants must give assurances that at least
ten percent of each grant will be expended “for mi
nority business enterprises” (Pub. L. 95-28, 91 Stat.
116, 117). Moreover, pursuant to Executive Order
11246, 30 Fed. Reg. 12319, as amended by Executive
Order 11375, 32 Fed. Reg. 14303, enterprises holding
federal contracts must take affirmative action to cor
rect disproportionately low employment of racial mi
norities. These and other programs might be affected
by the Court’s disposition of this case.
The United States has concluded that voluntary ef
forts to increase the participation of racial minorities
m activities throughout our society that were form
erly closed to them should be encouraged. See the
Policy Statement on Affirmative Action Programs for
State and Local Government Agencies, 41 Fed. Reg.
38814. The United States also encourages appropriate
minority-sensitive efforts in programs supported by
federal funds (see, e.g., 45 C.F.R, 80.3(b) (6) (ii)).
3
, Moi‘eovcr, several departments and agencies of the
Executive Branch have the responsibility to enforce
legislation passed by Congress to protect persons from
unlawful discrimination on account of race. For ex-
ample, the Attorney General may intervene in actions
of general public importance involving assertions of
ram i discrimination; he may also sue upon a claim
that any person has been denied admission to a public
college because of race, and he may bring suit to
prevent racial discrimination in federally-assisted
programs. See the Civil Rights Act of 1964, 78 Stat.
---18, 2o2, 266, 42 U.S.C. 2000c-6, 2000d and 2000h-2.
idle Court’s decision in this case could affect that en
forcement responsibility.1
Ihe United States is committed to achieving equal
opportunity and preventing racial discrimination.
Eor the reasons discussed in this brief it has con
cluded that the achievement of both goals can be at
tained by the use of properly designed minority-
sensitive programs that help to overcome the effects
of years of discrimination against certain racial and
ethnic minorities in America.
STATEM ENT
A. FACTS
The Medical School of the University of California
at Davis opened in 1968. The entering classes of that
\c.u and of the following year included one Chicano,
two black, and 14 Asian-American students out of a
1 Kespondent’s claim was based in part upon Section 2000d.
4
total of 100 (R. 215-216).2 This proportion compared
unfavorably with the aggregate proportion of these
three groups to the general population of California—
■25.7 percent.3
I In 1969 the faculty of the Medical School adopted
a resolution establishing a special admissions pro
gram for disadvantaged applicants (R. 216). Under
that program, sometimes called the “ task force” pro
gram, between 1970 and 1974 the school admitted
71 minority persons: 26 blacks, 33 Cliicanos and 12
Asian-Americans (R. 216-218). An additional 49
minority persons, including 41 Asian-Americans, were
admitted through the regular admissions process dur
ing those years (R. 216-218). Of the 451 students
entering between 1970 and 1974, 120 (or 26.6 per
cent) were members of minority groups.
On June 20, 1974, respondent brought suit in Cali
fornia Superior Court alleging that as a result of the
special admissions program the Medical School had,
in 1973 and 1974,4 denied him admission solely be-
2 “R.” refers to the record that has been filed with the Clerk of
this Court.
3 U.S. Bureau of Census, 1970 Census, Vol. I, Characteristics of
the Population, California, Part 6, p. 6-387 (1973). The percent
ages of the population are: persons of Spanish language or sur
names, 14.7 percent; blacks, 7.0 percent; Asian-Americans (per
sons of Japanese, Chinese or Filipino descent), 2.65 percent.
American Indians made up 0.45 percent of tile California popula
tion in 1970. Spanish language or surnamed persons may be of any
race. For computation purposes Spanish-speaking or surnamed
persons are assumed to be white.
4 A e refer throughout this brief to medical school classes by the
year in which the class entered. Applications for an entering class
are received beginning in July of the year before the one in which
the class will enter (R. 150).
5
cause of his race. He sought declaratory relief and
an order to compel his admission (App. 1-4). The
defendants filed a cross-complaint, seeking a declara
tion that the special admissions program was lawful
(App. 9-11).
Counsel agreed to dispense with an evidentiary
hearing and to submit the case to the court on the
facts set out in the pleadings and in the declaration
and deposition (with exhibits) of George IT. Lowrey,
Chairman of the Admissions Committee and Associate
Dean of Student Affairs at Davis (R. 282).
1 . T H E REGULAR ADMISSION'S PROCESS
The admissions committee at the medical school
is composed of faculty and students chosen by the
Dean of the school (R. 62, 148-149). Several fac
ulty members screen each application to determine
whether an applicant shows sufficient promise to be
invited for an interview (R. 62, 150). An interview
is a necessary step in the application process; no
one is admitted without being interviewed. Xo ap
plicant in the regular program with a grade point
average below 2.5 is interviewed (R. 63, 151).’ Al
though other factors are considered in deciding who
is interviewed, there are no written standards (R.
lo l). Interviews are conducted by one faculty mem
ber of the admissions committee and, since 1974, one
student member. The interviewers write summaries
evaluating each applicant’s potential contribution to
" Although it is not made explicit, it appears from the record
that grade point averages are scaled from 0.0 to 4.0 (R. 63).
6
the medical profession. On the basis of the file (in
cluding giades and test scores) and interview sum
maries, the interviewers and four other committee
members each rate each applicant on a scale of 0 to
100 (R. 155-159).
All committee members attend an orientation ses
sion in which they discuss the importance of various
factors, including the basic requirements for admis
sion, the depth of study in science and the humanities,
the quality of undergraduate training, and personal
information including letters of recommendation,
extiacurricular activities, personal comments and
career plans (R. 62).6 Each numerical rating (also
called a “benchmark score”) is a subjective evaluation
of the applicant’s potential contribution to the medi
cal profession, and the rating is intended to reflect
all of the salient factors, including not only those
mentioned above but also character, motivation, con
templated type of practice, and contemplated location
of practice (R. 64-65, 180).7 Committee members also
considei objective criteria such as college grade point
average and scores on the Medical College Admission
Test (MCAT), a four-part standardized test taken
by medical school applicants, in the course of evaluat-
8 the record does not reveal whether there are written guidelines
tor evaluating the applicants.
Tho record indicates that some preference is given to appli
cants who are from (and express an interest in returning to prac
tice m) areas of northern California that are in need of physicians;
f ^ f r“ ce 1S also £lven to spouses of accepted applicants (K, 64-G5,
183 • Tl\° record docs not indicate what weight these factors carrv
in tiie selection process.
7
iug each applicant and assigning a benchmark score
(K. 152). The record does not indicate the relative
weight of these factors in the selection process.
The combined numerical rating is the “major
factor” in selection, but it is not rigidly followed
(li. 63, 182-183). Because acceptance letters are
sent periodically, a rating that will warrant admis
sion early in the selection process may not do so
later (R. 64). In addition, there are two situations in
which an applicant with a lower numerical rating
may be chosen over one with a higher score. First, a
file may be updated with information received after
the rating is made. The decision to “accept people
out of the order of their numerical rating” because of
added information is made by the full admissions
committee (R. 64, 182-183). Second, a list of those
whose scores are “very close to admission” is created
to fill places that may be available because of an
unexpectedly low rate of acceptance by those offered
admission, or because of attrition; the Dean of Ad
missions selects from this list those whom he believes
will bring “ special skills or balance” to the class (R.
G4). See Pet. App. 8a.
2 . T H E SPECIA L ADMISSION'S PROGRAM
Sixteen percent of the places in each class are
reserved for applicants admitted through the special
admissions program.8 The special admissions pro-
8 Iiofore 1971 the entering class was 52, and eight places were
earmarked for the special admissions program; in 1971 the enter
ing class was increased to 100, and the special admissions program
tolG (R. 164, 215).
8
gram is administered primarily by a special admis-
• sions committee, comprised principally of faculty and
students wlio are members of minority groups (R.
161-163, 165, 169, 251-252). Applicants referred to
the special admissions committee could be inter
viewed even though their grade point averages would
not have justified interviews by the regular commit
tee (R. 175). The special admissions committee
selected applicants that, in its view, should be ad
mitted, and it referred their files to the regular ad
missions committee, which made the final admission
decision (R. 165).
Although there is some evidence that the 16 slots
earmarked for special admissions could be varied
when that was justified by unexpected circumstances,*
Dr. Lowrey stated that the special admissions com
mittee “ would continue to approve and process Task
Force applications until 16 had been accepted” (R.
168). The trial court found that 16 places were re
served for minority applicants (Pet. App. 114a-
115a), and the University did not challenge that
finding on appeal (id. at 2a n. 1, lOa-lla).
9 Only 15 places were filled from the special admissions program
in 1971 and in 1974 (R. 217-218). Petitioner explains (Br. 3-4
n. 5) that in 1974 one person admitted through the special admis
sions program withdrew after he had accepted the offer of admis
sion, and that this place was filled by an applicant to the regular
admissions program even though there was a special admissions
waiting list.
9
a. Racial composition of applicants and students
The record includes the following corrected sta
tistics regarding regular and special admissions (R.
214-215, 216-218, 205, 207, 219) :
Referred
Total to special Interviews Oilers Matriculations
appli- commit--------------------------------------------------- ---------------------
Entering class cants tee Total Special Total Special Total Special
1968............ 504 — — 104 — 48 —
!<*/»............................. 1,038 — — 99 — 52 —
lf*70............................. 1,338 104 — 80 — 52 8
11*71............................. 2,433 140 — ICO — 100 15
1972............................. 1 2,016 169 028 01 192 — 100 16
l'*73 ............................. 2,404 * 297 8S6 71 * 185 <20 MOO 16
1974 ........................... 3,737 G28 550 88 157 26 99 * 16
1 Tills figure is reported as 2,050 as of May 8, 1973 (R. 207).
1 This figure is reported as 291 as of May 8, 1973 (R. 205).
1 This figure is reported as 162 as of May 8, 1973 (R. 207).
* This figure is reported as of May 8, 1973 (R. 205). Dr. Lowrey indicated that there were 32 special
admissions odors (R. 69), and this may reilect later data.
* Rut see note 9, supra.
The racial composition of students enrolled in the
Medical School was (R. 174, 216-218) :
Entering class
Applications i
special com
•eferred to Race of regular admittees
Black Chicano
Asian-
AmericanTotal Minority
1968..................................... i 22 _ _ 3
I960..................................... — i 34 2 1 11
1970..................................... 104 104 0 0 4
1971..................................... ___ 146 140 1 0 8
1972..................................... 109 148 0 0 11
1973..................................... ___ 297 224 0 2 13
1974..................................... 628 456 0 4 *5
Race of special admittees
Minority admittees —
Asian-
Entering class Total Special Black Chicano American
1968.....................................___ 3 _ __ _ _
1W9..................................... 14 — — — —
1970..................................... 12 8 5 3 —
1 9 7 1 . ...............................___ 24 15 4 9 2
1072................................... ........ 27 16 5 6 5
1973................................... ........ 31 16 6 8 2
1974..................................... *26 416 6 7 3
* These figures represent minority applicants prior to institution of the special admissions program.
* One American Indian was also admitted through tlie regular process in 19*4 (R. 218).
1 The document in the record indicates 25 but appears to reilect an error in addition (R. 218).
* Petitioner contends that there were only 15 special admittees in 1974. See note 9, supra.
245- 050— 77------------2
10
i . Eligibility for the special admissions program
Each applicant’s interest in the special admissions
program is initially ascertained from his application
for admission. The 1973 application form asked each
applicant whether he wished to be considered by a
special admissions subcommittee for applicants from
“economically and educationally disadvantaged back
grounds” (R. 232). In 1974 Davis began using a
nationwide application processing service, whose
standard application asked whether the applicant
wished to be considered as a “minority group appli
cant” (R. 65, 197).10 Only those who responded affirm
atively were referred to the special admissions com
mittee (R. 65, 171). In 1974 applicants were not asked
whether they wished to be considered for a program
for the disadvantaged (R. 197). Applications of
whites, blacks, Cliicanos, American Indians and Asian-
Americans were referred to the special admissions
committee (R. 65, 216-218).
The special admissions program is open only to
those who are considered disadvantaged, a deter
mination made by the chairman of the special ad
missions committee. The chairman makes this deci
sion on the basis of the application, which reveals
whether the applicant was granted a waiver of appli-
10 The term “minority” was not defined. A separate question on
the application listed the following categories, in addition to white,
under the question “How do you describe yourself?” : Black/Afro-
American, American Indian, Mexican-American or Chicano,
Oriental/Asian-American, Puerto Rican (Mainland), Puerto
Rican (Commonwealth),Cuban,Other (R. 197).
11
cation fee, was a participant in an educational oppor
tunity program in college, worked during under
graduate years or interrupted his or her education
to support himself or herself or family members,
and the occupation and educational level of the appli
cant’s parents (R. 65). Applicants from minority
backgrounds who are not considered disadvantaged
are referred to the regular admissions process
(R. 66).11
Dr. Lowrey stated that the program was open to
all disadvantaged applicants, but that membership
hi a minority racial group was considered “as an
clement which bears on economic or educational dep
rivation” (R. 65-66). I t is not clear what weight
race is given in the determination that a person is or
is not disadvantaged. Counsel for the Medical School
stated (Pet. App. 92a) that “minority status is * * *
considered as one factor in determining a disadvan
taged status,” but Dr. Lowrey explained that “ [i]n
choosing among the disadvantaged applicants favor
able weight is given to minority group membership in
determining relative disadvantage because minority •
applicants from disadvantaged backgrounds labor
under special handicaps in American society” (R. 67).
Written material distributed about the program
characterizes it as one for disadvantaged students
11 See the tables at page 9, supra, which show that after +htV ̂
the special admissions program began many members of minority
groups were also admitted through the regular admissions process.
Of the 380 entering students so admitted, 41 (10.8 percent) were
Asian-Americans, 6 (1.6 percent) were Chicanos, 1 (0.3 percent)
was black, and 1 (0.3 percent) was American Indian.
12
and does not mention racial considerations (R. 65,
195, 196, 248). Although many non-minority per
sons applied for the program (R. 65, 216-218), every
person admitted through it for the classes of 1970
to 1974 was black, Chicano, or Asian-American (R.
216-218). The record does not indicate whether any
whites were interviewed or offered admission. The
trial court found that no white applicant had ever
been admitted through the program and that (Pet.
App. 115a) “ [i]n practice this special admissions
program is open only to members of minority races
and members of the white race are barred from par
ticipation therein.”
c. The process of selection
A special admissions committee, composed of stu
dents and faculty the majority of whom, in 1978,
were from ethnic minorities (R. 162-163, 169, 251-
252), considers each application.12 The special admis
sions committee reviews applications in the same
manner as the regular admissions committee and as
signs a numerical rating to each applicant (R. 66) A
12 The Supreme Court of California stated (Pet. App. Ga) that,
the special admissions committee “consists of students who are all
members of minority groups, and faculty of the medical school
who are predominantly but not entirely minorities.” Faculty mem
bers of the special admissions committee also were members of
the regular admissions committee (R. 196), although they served
primarily on the special committee (R. 162,168).
Members of the special admissions committee were given no
formal instructions on selection of students (R. 163), but they
were given a statement on the purposes of the program (R. 163,
13
The chairman of the special admissions committee
screens the applications to determine who will be
invited for an interview (R. 66). The record does
not disclose what criteria the chairman uses in mak
ing this decision, but applicants with grade point
averages lower than 2.5 are not automatically elimi
nated (R. 175), and some have been admitted (R. 210,
—°)‘
At appropriate intervals the chairman of the spe
cial admissions committee refers several of the “ most
promising” special admissions applicants to the regu
lar admissions committee with recommendations that
they be admitted; the regular admissions committee
reviews the applicants and determines whether to ac
cept the special committee’s recommendations (R.
66-67, 165-166). The regular admissions committee
has in some cases rejected recommendations (R. 166-
167).
The trial court found that (Pet. App. 115a) “ [ a p
plicants in the special admissions program are rated
for admission purposes only against other applicants
in this program and not against applicants under the
general admissions program.” 15 That finding was not
challenged on appeal, but the record does not indicate
14 In 1972, 37.9 percent of special applicants were interviewed,
compared with 30.0 percent of regular applicants. In 1973 the
figures were 23.9 percent (special) and 37.6 percent (reg
ular) ; in 1974 they were 14 percent (special) and 14.9 percent
(regular) (see page 9, supra).
15 It is not clear whether the court was referring to assignment
of a numerical rating or comparative evaluation of applicants
after ratings are assigned.
14
whether special applicants are compared with regular
applicants whose applications are considered at the
same time.
All those admitted are considered by the Medical
School to be qualified to practice medicine and to
contribute to the school and the medical profession.
Dr. Lowrey stated (R. 67):
Every admittee to the Davis Medical School,
whether admitted under the regular admissions
program or the special admissions program,
is fully qualified for admission and will, in the
opinion of the Admissions Committee, contrib
ute to the School and the profession.
d. Purpose of the program,
Dr. Lowrey stated that it was the judgment of the
faculty that (R. 67):
the special admissions program is the only
method whereby the school can produce a di
verse student body which will include quali
fied students from disadvantaged backgrounds.
Dr. Lowrey believed that without the program there
would be few disadvantaged minority students at Da
vis (R. 67-68).lu
Dr. Lowrey gave several reasons why the faculty
had instituted the program: (1) the paucity of minor
ity persons in the medical profession; (2) the bene
fits to students and physicians of achieving diversity
in the student body and the profession through ad
mission of minority applicants; (3) the need to train
161 hose statements were not challenged or refuted by
respondent.
15
minority physicians who would serve the needs of
disadvantaged minority communities by working in
those communities and would encourage non-minor
ity physicians to do so also; 17 (4) the need to train
physicians who would serve as examples to encourage
younger persons from minority backgrounds to aspire
to professional careers; and (5) the need to give
special consideration to minority applicants because,
as a result of poor education, economic burdens, and
lack of family support, test scores and grades do
not necessarily reflect their abilities (R. 67-69).
3 . r e s p o n d e n t ’s a p p l i c a t i o n
Respondent applied to Davis for the classes begin
ning 1973 and 1974 (R, 231, 236). He did not request
consideration in either year as a disadvantaged appli
cant (R. 232, 236). He was granted an interview in
both years (R. 69).
In 1973 the admissions committee gave respondent
a “ benchmark” rating of 468 (R. 179-180),18 and he
was comparatively high among regular applicants
(R. 180).19 Respondent’s application was received late
in the admissions process, however, and he was not
interviewed until after a majority of the positions in
the class (and 12 special admissions positions) had
17 Every applicant admitted through the special admissions pro
gram has expressed an interest in practicing in a disadvantaged
community (R. 68). It is not clear whether respondent expressed
such an interest (R. 228).
18 The maximum possible rating that year was 500.
19 The record contains the following information regarding
grade point averages and MCAT scores(R. 189-190, 210, 223) :
16
been filled (R. 64, 69-70). Dr. Lowrey recalled that
regular admittees had ratings as low as 452. He stated
that the “ average” rating of special admittees was
probably 10 to 30 points below respondent’s, but that
the overall “range * * * [was] comparable” to that
of regular admittees (R. 181).20
The defendants initially contended in the trial court
and on appeal that the special program did not cause
respondent’s rejection in 1973 because most of the
places had been filled by the time his application was
ready to be considered, and the remaining places
would have gone to those with higher scores and to
those on the list of alternates, which did not include
respondent (R. 69-70).
Science Overall MCAT MCAT
grade grade verbal science
point point score1 score *
average average (percentile) (percentile)
Respondent...................................................... 3.45 3.51 96 97
Mean Scores
1973 Entering Class:
Regular Admittees................................... 3.51 3.49 81 S3
Sj>ecial Admittees..................................... 2.62 2.88 4G 35
1974 Entering Class:
Regular Admittees....................................... 3.30 3.29 69 82
Special Admittees..................................... 2.42 2.02 31 37
Ranges
1973:
Regular Admittees................................... 2.57-4.0 2.81-3.99
Special Admittees..................................... 2.11-2.93 2.11-3.76
1974:
Regular Admittees................................... 2.5-1.0 2.79-4.0
Special Admittees..................................... 2.02-3.89 2.21-3.45
1 \ erbal and science scores are considered more significant than scores on the quantitative and
general information portions of the MCAT exam (R.152,153).
20 Xo other evidence establishes the numerical ratings of reg
ular or special admittees (R. 181-182).
17
In 1974 respondent made an early application and
was interviewed early (R. 70-71). His rating of 549
on a scale with a maximum of 600 was equivalent to
that in 1973, but there were more applicants with
higher scores ahead of him (ibid.),21 Respondent was
rejected not only by Davis but also by 12 other me
dical schools (R. 49-50, 51) .22
B. THE STATE COURTS’ OPINIONS
1 . T H E SUPERIOR COURT
The Superior Court found (Pet. App. 114a-115a)
that the special admissions program was not open to
white applicants, and it concluded that their exclu
sion from competition for 16 of the 100 places at the
Medical School violated the California Constitution
and the Fourteenth Amendment of the Lnited States
Constitution (id. at 107a, 117a). The court reasoned
that any program using race was arbitrary and un
fair, and it did not discuss the justifications that had
been offered in support of the program.
The court entered a declaration that the special
admissions program was unconstitutional and en
joined petitioner from “considering [respondent’s]
race or the race of any other applicant in passing upon
his application for admission” (Pet. App. 120a). I t
denied respondent’s request to be admitted to the
Medical School because it concluded that respondent
21 His 1973 rating was 93.6 percent of the maximum; his 1974
rating was 91.5 percent of the maximum.
22 Bakke was informed by two schools that his age—33 in 1913
played a part in his rejection (R. 49-50,52).
18
had not carried his burden of establishing that, but
■for the Medical School’s use of race, he would have
been admitted (id. at 107a-108a, 111a, 116a-117a).
2 . T H E SU PREM E COURT OF CALIFO RNIA
Both petitioner and respondent appealed, Peti
tioner challenged the Superior Court’s holding and
declaratory judgment that the special admissions pro
gram is unconstitutional; respondent contested the
court’s holding that he should be denied relief because
he failed to prove that he would have been admitted
if the 16 places had not been reserved for minority
applicants.
The Supreme Court of California agreed to hear
the case in advance of decision by the intermediate
appellate court (Pet. App. 4a). I t affirmed the
Superior Court’s decision that the special admissions
program is unconstitutional, but in so doing it relied
only on the Fourteenth Amendment.
After describing the admissions process at the Med
ical School, the Supreme Court of California observed
that racial classifications may sometimes be constitu
tionally employed—for example, in assigning students
to public schools to achieve integration (Pet. App.
13a). The court concluded, however, that the use of
race by the Medical School must be judged by es
pecially rigorous standards because “the extension of
a right or benefit to a minority [had] the effect of
depriving persons who were not members of a minor
ity group of benefits which they would otherwise have
enjoyed” (ibid.). When race is used to assign a stu
19
dent to one school rather than to another to eradicate
the effects of previous discrimination, all students
still receive an education, and whites and minority
students alike share the burden of transportation (id.
at 13a-14a); the consequences of the use of race are
quite different, the court reasoned, where there is com
petition for a limited number of places and race is
used as a criterion of exclusion. The fact that the use
of race therefore might treat minorities “benignly”
did not obviate the need for exacting judicial scru
tiny.23
The court characterized the central issue of the
case as “whether the rejection of better qualified
applicants on racial grounds is constitutional” (Pet.
App. 16a). Applying the “strict scrutiny” test for
racial classifications that “result in detriment to a
person because of his race” (id. at 17a, footnote
omitted), the court examined petitioner’s justifica
tions for the special admissions program at Davis.24
23 Quoting from DeFunis v. Odegaard, 82 Wash. 2d 11,32,507 P .
2d 1169, 1182, vacated as moot, 416 U.S. 312, the court observed
that “ ‘the minority admissions policy is certainly not benign
with respect to nonminority students who are displaced by it’ ”
(Pet. App. 17a n. 12).
24 The court rejected (Pet. App. I8a-19a) the argument that
less exacting scrutiny should be applied because the use of race
cut in . favor of traditionally disadvantaged groups. The court
stated (id. at 19a n. 16) that no discernible majority was dis
criminating against itself, and it reasoned that the Equal Protec
tion Clause protects persons as persons, not only as members of
racial groups (id. at 20a). Thus, the court concluded, respondent
had a personal right not to suffer loss because of his race, and
it did not matter whether he was a member of a minority racial
or ethnic group.
20
I t summarized four justifications that had been
offered in support of the special admissions program
(Pet. App. 21a-22a) : the desire to increase the racial
diversity of the medical profession and the student
body; the need to train minority physicians who would
serve as role models for other members of minority
gioups; the need to increase the number of physicians
serving minority communities; and the belief that
minority physicians would have greater rapport with
minority patients and consequently be more effective.
I t rejected (Pet. App. 23a) arguments about rap
port and the need for minority physicians to serve
minority patients, on the grounds that they were
unsupported, parochial and relied on racial stereo
types. Although the court stated that the remain
ing objectives were legitimate and important, it con
cluded that the Medical School had not demonstrated
that these objectives could not be achieved by other
mean (ibid.). The court suggested (id. at 24a-26a)
that the Medical School might increase the size of
its classes, reduce its reliance on grades in selecting
from among disadvantaged students of all races, and
increase its efforts to recruit disadvantaged students.
The court also suggested (id, at 28a) that the Medical
School could give a preference to applicants of any
race who expressed willingness to practice in disad
vantaged communities, and that it could institute
clinical courses to induce students to do so. Because,
[s]o far as the record discloses, the University has
not considered the adoption of these or other nonracial
21
alternatives to the special admission program” (id. at
26a), the court concluded that the Medical School had
not established a compelling need for the special ad
missions program.
The court distinguished a line of cases that had
upheld race-conscious relief for employment discrim
ination (Pet. App. 29a-32a). I t found no evidence
that the Medical School had engaged in discrimina
tion, and it declined to consider the argument of
several amici that reliance on grade point averages
and MCAT scores was discriminatory.25
The court also stated that, as a practical matter,
preferences are difficult to abolish even after they have
served their purpose (Pet. App. 36a). I t concluded
that “ [wjhile a program can be damned by semantics,
it is difficult to avoid considering the University
scheme as a form of an education quota system,
benevolent in concept perhaps, but a revival of quotas
nevertheless. * * * To uphold the University would
call for the sacrifice of principle for the sake of dubi
ous expediency and would represent a retreat in the
struggle to assure that each man and woman shall be
judged on the basis of individual merit alone, a strug-
gle which has only lately achieved success in removing
legal barriers to racial equality” (id. at 36a-37a).
25 That argument had not been raised in the trial court, and
nothing in the record either supports or refutes the argument that
grades and MCAT scores are insufficiently related to performance
in medical school or in the profession, or that the MCAT is cul
turally biased (Pet. App. 31a-32a).
22
Turning to respondent’s appeal from the decision
denying him admission to the Medical School, the
court concluded that the Medical School, not respond
ent, should bear the burden of proof (Pet. App. 37a-
39a). I t therefore remanded the case for further pro
ceedings at which the Medical School would be re
quired to establish, if it could, that even in the absence
of the unconstitutional program respondent would
have been denied admission.20 After the Medical School
conceded that it would be unable to meet that burden
of proof, the court modified its opinion and judgment
to provide that respondent must be admitted {id. at
80a).
Justice Tobriner dissented (Pet. App. 39a-78a).
He stated that {id. at 60a-61a; footnote omitted):
“ [heightened judicial scrutiny is * * * appropriate
when reviewing laws embodying invidious racial
classifications, because the political process affords an
inadequate check on discrimination against ‘discrete
and insular minorities.’ * * * By the same token,
however, such stringent judicial review is not appro
priate when, as here, racial classifications are utilized
remedially to benefit such minorities, for under such
circumstances the normal political process can be
relied on to protect the majority who may be incident
ally injured by the classification scheme.” Applying
that standard, he would have held that the special
admissions program did not offend the Constitution.
20 The court indicated that its decision would apply retroactively
only to applicants who had filed suit before the date of its opinion
(Pet. App. 38a n. 34).
23
INTRODUCTION A ND SUM M ARY OR ARGUM ENT
This case involves a special admissions program
that takes race into account. The parties have por
trayed the case as an appropriate vehicle for definitive
resolution of numerous constitutional questions that
may arise with respect to minority-sensitive programs.
But deficiencies in the record of this case make it
inappropriate for the Court to anticipate these ques
tions. In our view, only one question should be finally
resolved in the present posture of this case: whether
a state university admissions program may take race
into account to remedy the effects of societal discrim
ination. We submit that it may.
The record does not afford an adequate basis for
the exploration of other questions (cf. Morales v.
New York, 396 U.S. 102). I t is enough to say that
the opinion of the Supreme Court of California ap
plied an erroneous legal standard. At all events the
present record is plainly insufficient to permit the
formulation of detailed principles that would deter
mine the constitutionality of the many other federal
and state programs that take race into account in
various ways and for various purposes. We believe
that the Court’s decision should leave for consider
ation in cases dealing with other specific programs, on
a proper record, specific questions that may arise
concerning those programs. Cf. Wheeler v. Barrera,
417 U.S. 402, 426-427.
24
I
. Within the confines of this case, we examine the
justification for minority-sensitive programs and the
constitutionality of taking race into account in mak
ing decisions concerning admissions to professional
school. The most important principle involved here is
that because the effects of racial discrimination are
not easily eliminated, mere neutrality toward race
often is inadequate to rectify what has gone before.
The Court therefore has upheld on many occasions
remedial orders that require the government to use
race to assist in the remedial process. As the Court
explained in North Carolina State Board of Education
v. Swann, 402 U.S. 43, 46, “ [j]ust as the race of stu
dents must be considered in determining whether a
constitutional violation has occurred, so also must it
be considered in formulating a remedy.”
This principle extends beyond public rectification
of public wrongs. Race may be considered in devising
remedies for private discrimination. Franks v. Bow
man Transportation Co., 424 U.S. 747. Race may be
considered in carrying out a prophylactic program to
prevent racially disadvantageous outcomes, whether
or not they would violate the Constitution. United
Jewish Organizations of Williamshurgh, Inc. v.
Carey, 430 U.S. 144. And race may be taken into
account in avoiding racially disproportionate effects
of employment testing practices. Albemarle Paper
Co. v. Moody, 422 U.S. 405.
25
Congress, which has a special responsibility to in
terpret and to enforce the Civil War Amendments,
has determined that minority-sensitive programs are
necessary to rectify the continuing consequences of
discrimination. Many federal programs make explicit
use of race, and the Executive Branch has joined
Congress in endorsing voluntary efforts by States
and private parties to do likewise when necessary
to break down the barriers that have separated the
races for so long.
I I
States and their subdivisions are not limited to ad
dressing only the effects of their own discrimina
tion. Racial discrimination in society as a whole may
make it difficult for a professional school fairly to
evaluate the abilities and promise of minority ap
plicants without taking race into account. Moreover,
this Court has recognized that “substantial benefits
flow to both whites and blacks from interracial as
sociation” (Linmark Associates, Inc. v. Township of
Willingboro, No. 76-357, decided May 2, 1977, slip op.
10), and those benefits cannot be achieved unless each
institution in society may consider the consequences
of racial discrimination by others. There is no need
for a professional school to await a judicial decision
that it has itself violated principles of equality be
fore it may begin to redress inequality created by
others.
If, as we argue, a professional school may take
into account the likely effects of societal discrimi-
245 - 950— 77 -----------3
nation in making admissions decisions, it follows that
the school may employ minority-sensitive admissions
procedures. This Court has witnessed a history of
discrimination against minority groups that does not
require repetition here. That discrimination has af
fected the medical profession no less than other pro
fessions.
I l l
When a State considers race in distributing bene
fits, its program must be examined carefully for two
reasons. First, a racial classification that puipoits to
be benign—that is, to assist the victims of discrimina
tion—may in fact be invidious in purpose or effect.
Second, the State may not take account of race un
less that is necessary to achieve an important govern
mental objective. Race ordinarily * bears no relation
to the individual’s ability to participate in and con
tribute to society.” Mathews v. Lucas, 427 U.S., 495,
505. The United States has undertaken to foster the
principle that race is unrelated to merit or qualifica
tion and is not generally a legitimate basis for dis
tributing opportunities. To do otherwise would be to
risk reverting to the very thinking that has in the
past resulted in invidious discrimination. The Four
teenth Amendment protects all persons without regard
to their race, and that protection can be assured only
by careful examination of minority-sensitive state
action.
Such an inquiry, however, does not call for the re
jection of minority-sensitive programs that are de
27
signed to serve remedial purposes and that are tai
lored to that end. The courts’ central concern should
be whether the program is designed and applied to
remedy the effects of past discrimination. Such a de
sign often will require use of race rather than case-
by-case determinations of discrimination.
Societal discrimination may have left minority ap
plicants to professional schools with credentials less
impressive than they otherwise would have had. Be
cause competition for admission is keen, even small
differences in such credentials may determine whether
applicants will Be admitted or rejected. I t is appro
priate to take race into account to adjust for differ
ences in credentials that may have been caused by
discrimination but do not reflect differences in ability
to succeed or in ability to contribute to the medical
profession and the health of the general population.
The admissions process involves many difficult and
subjective decisions. For example, admissions com
mittees often must consider whether grades from
one college are comparable to those from another, or
whether an applicant with higher grades should be
admitted before one with greater self-discipline. Other
pertinent considerations are no less subjective. Be
cause admissions decisions involve comparisons of in
tangible qualifications, educational institutions require
wide latitude in making these decisions.
Moreover, there is no adequate alternative to the
use of minority-sensitive admissions criteria. The
Supreme Court of California suggested increasing the
i
28
size of the Medical School’s classes. But whether the
Medical School admits 100, 200, or 500 students, mi
nority applicants still will be handicapped by the con
sequences of prior discrimination. The court also sug
gested replacing consideration of race with special
consideration for disadvantage. At any level of per
sonal or parental income, however, applicants who are
from minority groups face an extra hurdle—the lin
gering effects of pervasive racial discrimination—that
other applicants do not. Cf. Califano v. Webster, Xo.
76-457, decided March 21, 1977.
IV
Under the principles we have discussed above, the
judgment of the Supreme Court of California should
be reversed to the extent that it forbids the Medical
School to operate any minority-sensitive admissions
program.
The remaining question is whether respondent is
entitled to admission to the Medical School. We have
argued that it is constitutional in making admissions
decisions to take race into account in order fairly to
compare minority and non-minority applicants, but
it is not clear from the record whether the Medical
School’s program, as applied to respondent in 1973
and 1974, operated in this manner.
The trial court found, and the University does
not contest, that 16 places in the class were reserved
for special admittees. The record does not establish,
however, how this number was chosen, whether the
29
number was inflexible or was used simply as a meas
ure for assessing the program’s operation, and how
the number pertains to the objectives of the special
admissions program.
I t also is unclear whether there was any compari
son of minority with non-minority applicants. The
regular admissions committee played some role in the
selection of all 100 students, but the record does not
reveal what that role was. I f there was a fair com
parison of regular and special applicants by the reg
ular admissions committee, this would indicate that
race had not been used improperly.
The deficiencies in the evidence and findings—which
pertain to both the details of the program and the
justifications that support it—may have been caused
by the approach both parties, and both 0011118 below,
took to this case. They asked only whether it was
permissible for the Medical School to use race at
all. We believe that it is permissible to make minor
ity-sensitive decisions, but that it is necessary to
address, as well, questions concerning how race was
used, and for what reasons. The findings with respect
to these latter, critical questions are insufficient to
allow the Court to address them.
Accordingly, the judgment of the Supreme Court
of California should be vacated to the extent that
it orders respondent’s admission, and the case should
lie remanded for further appropriate proceedings
to address the questions that remain open. I 11 all other
respects the judgment should be reversed.
30
ARGUM ENT
I
K ACE MAY BE TAKEN INTO ACCOUNT TO COUNTERACT
THE EFFECTS OF PRIOR DISCRIMINATION
A. T H IS COURT H A S H ELD T H A T M IN O R IT Y -SE N SITIV E DECISIONS ARE
ESSEN TIA L TO E L IM IN A T E T H E EFFECTS OF D ISC R IM IN A TIO N IN
T H IS COUNTRY
The effects of racial discrimination are not easily
eliminated. Because discrimination breeds other in
equalities, the Court has recognized that simple elim
ination of future discrimination may well be insuffi
cient to rectify what has gone before. Mere neutral
ity often is inadequate (Green v. County School
Board, 391 U.S. 430, 438).27
In United States v. Montgomery County Board of
Education, 395 17.S. 225, the Court upheld an order
that teachers be dispersed on a racial basis throughout
a desegregating school system. In Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 19-25,
the Court explained that the race of students and
teachers could be taken into account in devising a
remedy for racial discrimination. And in North Caro-
27 See Boston Chapter, N.A.A.C.P., Inc. v. Becclicr. 504 F. 2d
1017, 1027 (C.A. 1), certiorari denied, 421 U.S. 010 (“The goal of
color blindness, so important to our society in the long run, does not
mean looking at the world through glasses that see no color; it
means only that all colors are moral equivalents, to he treated
on an equal basis”). Unlike the situation in which the State need
lessly injects race into what might otherwise be a racially-neutral
undertaking (see Anderson v. Martin, 375 U.S. 399), once racial
discrimination has taken place it is often necessary to use race
a second time to bring about a neutral result.
31
Una State Board of Education v. Swann, 402 U.S. 43,
the Court held that a statute forbidding the assignment
of students on the basis of race was unconstitutional,
because it would hinder the implementation of neces
sary remedies. The Court explained (402 U.S. at 46) :
“Just as the race of students must be considered in
determining whether a constitutional violation has
occurred, so also must race be considered in formu
lating a remedy.” 28
Consideration of race also is necessary in devising
remedies for private discrimination. Franks v. Bow
man Transportation Co., 424 U.S. 747, held that sen
iority credits could be awarded on a racial basis, and
International Brotherhood of Teamsters v. United
States, Xo. 75-636, decided May 31, 1977, amplified
that principle. Both cases, moreover, recognized that
although remedial measures inevitably would upset
the expectations of other persons, most of whom
would be white, this was not a sufficient objection to
the implementation of effective remedies.
Moreover, the remedial use of race has not been
confined to the elimination of discrimination that has
been proven by traditional means. For example, Con
gress concluded that, in order to protect the voting
rights of certain minority groups against subtle dilu-
28 See also Dayton Board of Education v. Brinkman, Xo.
7G-589, decided June 27, 1977, which indicated once more that
race could be taken into account both in ascertaining the degree
of racial separation caused by the discrimination and in devising
a remedy that would eliminate only that increment, and no more.
Such a procedure necessarily requires extensive use of racial
criteria.
32
tion, it was necessary to consider the race of the pei-
sons who would be affected by legislative reappoi-
tionments. The prophylactic statute Congress en
acted—the Voting Rights Act of 1965—is about race,
and its administration is perfused with the require
ment of color-consciousness. Race must be taken into
account to prevent racially disadvantageous outcomes,
not simply to rectify past discrimination. This Court
has upheld this use of race. United Jewish Organiza
tions of Williamsburgh, Inc. v. Carey, 430 U.S. 144;
see Georgia v. United States, 411 U.S. 526, 531 (de
scribing the Act as “concerned with * * the reality
of changed practices as they affect Negro voters ).
Finally, color-conscious decisions are made regu
larly to implement the Civil Rights Act of 1964. Foi
example, Griggs v. Bake Power Co., 401 U.S. 424,
held that Title V II of that Act prohibits the use of
employment tests that have a substantial racially dis
parate effect, unless the employer can prove that
the tests are job related. Even then “it remains open
to the complaining party to show that other tests oi
selection devices, without a similarly undesirable ia-
cial effect, would also serve the employer’s legitimate
interest in ‘efficient and trustworthy workmanship.’ ”
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425.
And in Albemarle Paper, in dealing with a test that
appeared to screen out black applicants for employ
ment at a disproportionately high rate, the Court con
cluded that, in validating such a test as job ie-
lated, employers could be required to counteract its
racially disparate effects by resorting to racial cri
33
teria. They could, in other words, be required in ap
propriate circumstances to “differentially validate”
their employment tests—to use one passing score
for blacks and another for whites, so that the test
would predict success on the job equally well for both
racial groups. The conscious use of race in making
such employment decisions can help prevent subtle
discrimination and help the employer to achieve a
result that ultimately will not be racially biased.
1!. BOTH T H E LEGISLATIVE AND EXECUTIVE BRANCHES OF T H E FEDERAL
GOVERNM ENT H AVE ADOPTED M IN O R IT Y -SE N SITIV E PROGRAMS FOR
T H E PURPOSE OF E L IM IN A T IN G T H E EFFECTS OF PAST D ISC R IM IN A TIO N
The use of race is supported by many programs es
tablished by Congress, which has a special responsi
bility for interpreting and enforcing the Civil War
amendments to the Constitution (see South Carolina v.
Katzenbach, 383 U.S. 301, 327). See, e.g., Appendix
A to this brief. Congress has authorized expenditures
for many of these measures, most recently in the Pub
lic Works Employment Act of 1977, Pub. L. 95-28, 91
Stat. 116,117, which requires the dedication of part of
public works grants for minority business enterprises.
Congress adopted this program in order to promote
and strengthen minority-owned businesses. See 123
Cong. Rec. IT1436-H1437 (daily ed., February 24,
1977).
Perhaps the most prominent minority-sensitive pro
gram of the federal government is the enforcement of
Executive Order 11246, 30 Fed. Reg. 12319, as
amended, 32 Fed. Reg. 14303. The Executive Order
34
requires federal contractors to take affirmative action
to prevent disproportionately low employment of
women and minorities in their work forces, starting
from the assumption that most disproportionately low
employment is the result of discrimination—if not of
the contractor involved, then of someone else.20 The
constitutionality and legality of this program has
been repeatedly upheld.30
The Executive Branch has devoted extensive efforts
over the past several years to developing minority-
sensitive programs that will address the consequences
of past discrimination. For example, Title VI of the
Civil Rights Act of 1964, 78 Stat. 252, as amended, 42
U.S.C. 2000d et seq., prohibits racial discrimination in
the operation of federally assisted programs. The Me
dical School, as the receipient of federal assistance
29 Department of Labor regulations require that if there are
disparities between the proportion of available minority workers
and their employment, the employer must establish goals and
timetables for correcting the disparity. 41 C.F.R. 60-2.10.
30 See, e.g.. Contractors Association of Eastern Pennsylvania v.
Secretary of Labor, 442 F. 2d 159 (C.A. 3), certiorari denied,
404 U.S. 854; Rossetti Contracting Co. v. Brennan, 508 F. 2d 1039
(C.A. 7 ); Northeast Construction Co. v. Romney, 485 F. 2d 752
(C.A. D.C.). For a history of the Executive Order and the re
sponse to it in Congress and the courts, see Comment, The Phila
delphia Plan: A Study on the Dynamics of Executive Power,
39 U. Chi. L. Rev. 732 (1972).
Moreover, in enacting the 1972 amendments to Title V II of the
Civil Rights Act of 1964, Congi-ess considered and rejected the
option of altering Executive Order 11246. The history of this
consideration is recounted in Comment, supra, 39 U. Chi. L. Rev.
at 747-760. The present Congress is again considering the question.
See, e.g., 123 Cong. Rec. H6099-II6106 (daily ed., June 17, 1977).
35
(A. 8), is bound by Title VI. The Department of
Health, Education, and Welfare, with the approval of
the President, has promulgated regulations that inter
pret the requirements of Title VI.31
These regulations, which are codified at 45 C.F.R.
1 a it 80, provide that “ [e]ven in the absence of
* * * prior discrimination [by the recipient of fed
eral funds], a recipient in administering a program
may take affirmative action to overcome the effects of
conditions which [result] in limiting participation by
persons of a particular race, color, or national origin”
(45 C.F.R. 80.3(b) (6) (ii)). The regulations offer the
following illustration (45 C.F.R, 80.5(j));
Even though an applicant or recipient has
never used discriminatory policies, the services
and benefits of the program or activity it ad-
ministers may not in fact be equally available1
to some racial or nationality groups. In suck
circumstances, an applicant or recipient may
properly give special consideration to race,
color, or national origin to make the benefits of
its program more widely available to such
groups, not then being adequately served. For
example, where a university is not adequately
serving members of a particular racial or
nationality group, it may establish special re
cruitment policies to make its program better
known and more readily available to such
group, and take other steps to provide that
group with more adequate service.
“ Regulations adoPted to enforce Title VI require the approval
of the President. 42 U.S.C. 2000d -l.
36
The Equal Employment Opportunity Coordinating
Council, a joint body of several federal agencies,32
lias issued a Statement on Affirmative Action Pro
grams for State and Local Governmental Agencies.’3
The Statement encourages state and local govern
ments to adopt affirmative action programs as neces
sary complements of vigorous enforcement of anti-
discrimination laws. The Council concluded that prop
erly-designed minority-sensitive programs are instru
mental in ensuring “that positions * * * are genu
inely and equally accessible to qualified persons, with
out regard to their race * * The Council en
dorsed the establishment of goals that would reduce
“ substantial disparities” between the number of quali
fied persons and their acceptance for employment.
I t also concluded that it would lie necessary and ap
propriate to take race into account in recruiting,
training programs, and the evaluation of selection
methods.
32 The Council was established by statute to develop and im
plement “agreements, policies and practices designed to * * *
eliminate conflict * * * and inconsistency among the * * * agen
cies * * * of the Federal Government responsible for the * * *
enforcement of equal employment opportunity * * * policies.”
Section 715 of the Civil Rights Act of 1974, as amended,
86 Stat. I l l , 42 U.S.C. (Supp. V) 2000e-14. The member agencies
include the Department of -Justice, the Department of Labor, the
Equal Employment Opportunity Commission, the Civil Service
Commission, and the Civil Rights Commission.
33 The Statement appears at 41 Fed. Reg. 38814-38815. We have
reproduced it as Appendix C to this brief.
37
We do not, of course, contend that States have the
same authority as Congress to define violations of the
Civil War amendments. Nevertheless, States have
broad authority to promote the purpose of those
amendments. A State therefore is free, within con
stitutional constraints, to undertake remedial minor
ity-sensitive measures that are designed, like the
Fourteenth Amendment itself,34 to break down the
barriers that have separated the races.35
34 The three Civil War amendments to the Constitution reflect
the judgment of the Nation that a person’s race ought not be a
reason to inflict disadvantage upon him. The Thirteenth Amend
ment ended the enslavement of blacks, and the Fifteenth Amend
ment guaranteed that the vote could not be withheld on racial
grounds. Although the Equal Protection Clause of the Fourteenth
Amendment did not mention race, it was widely understood, and
quickly interpreted by this Court, as protecting black people from
unequal treatment. Strauder v. West Virginia, 100 U.S. 303.
33 Voluntary action to promote integration has been upheld re
peatedly. See, e.g., Porcelli v. Titus, 431 F. 2d 1254 (C.A. 3),
certiorari denied, 402 U.S. 944 (integration of public school fac
ulties) ; Spring-field School Committee v. Barksdale, 348 F.2d 261
(C.A. 1) (integration of students in public schools); Otero v.
Be.w York City Housing Authority, 484 F. 2d 1122 (C.A. 2)
(integration of public housing); Associated General Contractors
of Massachusetts, Inc. v. Altshuler, 490 F. 2d 9 (C.A. 1), cer
tiorari denied, 416 U.S. 957 (integration of workforce of govern
ment contractor).
3S
I I
THE UNIVERSITY COULD PROPERLY CONCLUDE THAT
MINORITY-SENSITIVE ACTION WAS NECESSARY TO
REMEDY THE LINGERING EFFECTS OF PAST DIS
CRIMINATION
A. M IN O R ITY -SEN SITIV E R ELIEF IS NOT L IM ITED TO CORRECTION OF DIS
C R IM IN A TIO N p e r p e t r a t e d BY THE INSTITUTION OFFERING
The Supreme Court of California concluded that the
Medical School’s policy cannot be justified by any
need to overcome the effects of past discrimination be
cause the Medical School has not been found to have
engaged in discrimination (Pet. App. 29a-32a). That
conclusion is erroneous for two reasons: first, the
University is not limited to correcting the effects
of its own discrimination, but it can take into ac
count the consequences of discrimination elsewhere
in society; second, institutions need not await judicial
determinations before attempting to overcome their
own discrimination.
I t would make no sense to conclude that a univer
sity can take race into account only to compensate
for its own discrimination. Each group of applicants
comes before a university only once. Although in some
cases a remedy may be needed to break down a dis
criminatory pattern in the administration of a univer
sity’s admissions program, whether the university
previously practiced discrimination of this sort is
not a necessary part of the justification for a special
39
admissions program. The principal, and more gen
erally applicable, justification, rather, is that racial
discrimination elsewhere in society makes it difficult
fairly to evaluate the abilities and promise of each
new applicant without taking his race into account
in evaluating his credentials.
This Court has recognized the importance of elim
inating the consequences of discrimination and “that
substantial benefits flow to both whites and blacks
from interracial association.” Linmark Associates,
Inc. v. Township of WilUnghoro, Xo. 76-357, decided
May 2, 1977, slip op. 10. See also Trafficante v. Metro
politan Life Insurance Co., 409 U.S. 205. I t follows
that no institution is limited to rectifying only its
own discrimination. I f it were, the consequences of
discrimination that spilled over from the discrimina
tor to society at large would be irreparable, and the
victims of discrimination would be doomed to suffer
its consequences without even the prospect of volun
tary assistance.
The Court has not adopted so confining a view.
In Califano v. Webster, Xo. 76-457, decided March 21,
1977, the Court sustained a federal statute that gave
greater retirement benefits to women than to men.
The statute was not justified on the argument that
the retirement system had itself discriminated against
women; it was justified, rather, by the fact that the
private labor market had for decades discriminated
against women. The Court concluded that this com
pensation from public fluids for essentially private
40
discrimination was constitutional. Cf. Kahn v. Shevin,
416 U.S. 351. The same principle applies here.
Since the University may attempt to take into
account the consequences of discrimination elsewhere
in society, it follows that there is no need for a
formal declaration that the University itself engaged
in discrimination. Moreover, even when an institu
tion is attempting to correct its own discrimination
it may do so without awaiting litigation. See Mc
Daniel v. Barresi, 402 U.S. 39, 41 (school district
may take race into account in formulating volun
tary plan of integration). I t would be pointless to
require expensive and lengthy litigation before an
institution may undertake voluntarily to correct its
own wrongs.30 Federal statutes do not require it. For
example, the requirement of Title Y II of the Civil
Rights Act of 1964 to use minority-sensitivity in
choosing and validating employment tests to avoid un
justified racially disproportionate results is not contin
gent upon a prior finding of racial discrimination by
each employer,37 nor is the requirement in the Voting-
Rights Act to take race into account in drawing dis
trict lines.38
36 See also the cases collected in note 35, supra.
37 See Albemarle Paper Go. v. Moody, supra; Dothard v. Raw-
linson. No. 76-422. decided June 27, 1977. slip op. 7-10; Interna
tional Brotherhood of Teamsters v. United States, supra, slip op. 9
n. 15,22.
38 United Jewish Organizations, supra, 430 U.S. at 157 (opinion
of White, J.) (“the Act’s prohibition against instituting new
voting procedures * * * [and its requirement to take race into
account] is not dependent upon proving past unconstitutional
apportionments”) .
41
B. D ISCRIM IN A TIO N A GAINST M IN O R ITY GROUPS IIA S H IN D ER ED T H E IR
PA R TIC IPA TIO N IN T H E M EDICAL PROFESSION
This Court has witnessed a history of discrimination
against minority groups that does not require repeti
tion here. See, e.g., Brown v. Board of Education, 347
U.S. 483; Keyes v. School District No. 1, Denver, Col
orado, 413 U.S. 189; Hernandez v. Texas, 347 U.S.
475; Ban v. Nichols, 414 U.S. 563.
Although we have made progress in eliminating dis
crimination case-by-case, the major civil rights laws
have been effective for little more than a decade. The
pervasive effects of past discrimination remain with
us. The vast majority of our racial and language mi
norities remain poorer and less educated, suffer
greater unemployment, and are less able to influence
the forces—economic, social, and political—that bear
upon their lives than is the white majority.38 To the
extent we are still a nation of “haves” and “have-
nots” the dividing line is in part a function of race.
39 In 1969 the percentage of families with incomes below the
poverty level was ?A/2 times higher among black than among white
families. 8.6 percent of white families had incomes below the pov
erty level-compared to 29.8 percent of black families and 20.4
percent of families of Spanish heritage (U.S. Bureau of the
Census, 1970 Census, Yol. I, Characteristics of the Population,
United States Summary, 1-400).
Minorities have received less education than white persons.
Among persons 25 years old and over, 54.5 percent of whites had
completed four years of high school or more. Only 31.4 percent
of black persons and 36.0 percent of persons of Spanish heritage
had completed high school. In the same age group, 11.3 percent
of all white persons had completed four years of college or more,
while only 4.4 percent of black persons and 6.0 percent of persons
of Spanish heritage had finished college. Median school years
240-950— 77------ 4
42
Discrimination has not been remote from the lives
of the minority medical school applicants at Davis.
Many black California residents lived in the South
completed among whites were 12.1, among blacks 9.8, and 9.G
among persons of Spanish heritage (id. at 1-386).
In 1974 the unemployment rate among nonwhites was twice
that of wnites: 9.9 percent compared lo 5.0 percent (U.S. Bureau
of the Census, Current Population Reports, The Social and Eco
nomic Status of the Black Population in the United States 1974.
64 (19(5)). In 19(6, among men of Spanish origin, the unemploy
ment rate was 10.7 percent; among women it was 12.5 percent (U.S.
Bureau of the Census, Current Population Reports, Persons of
Spanish Origin in the United States: March 1976 10).
Minority group members hold low-paying and low status jobs
at a higher rate than whites. In 1970 only 10.2 percent of black
persons and 13.6 percent of Spanish heritage persons held profes
sional, managerial and administrative positions, compared to 23.9
percent of all white persons. 12.0 percent of black persons, 11.8 per
cent of persons of Spanish heritage, and only 5.3 percent of white
persons held jobs as laborers. The disparity is even greater among
service and private household workers—28.1 percent of black per
sons, 15.1 percent of persons of Spanish heritage, and only 11.1
percent of white persons held such jobs (1970 Census, Vol. T,
Characteristics of the Population, supra, at 1-746 to 1-748).
The figures for Asian-Amerieans (Japanese, Chinese, and Fil
ipino only) are somewhat different. The number of families with
incomes below the poverty level was 8.8 percent (U.S. Bureau of the
Census, Subject Reports—Japanese, Chinese, and Filipinos in the
United States 42, 101, 160). Among Asian-American per
sons 25 years old and over, 62.2 percent had completed four years
of high school and 20.4 percent had completed four or more years
of college. The median school years completed among Japanese-
Americans was 12.5, among Chinese-Americans it was 12.4 and
among Filipino-Americans it was 12.2 (id. at 9, 68, and 127).
Only 2.0 percent of Asian-Amerieans were unemployed (id. at 13,
72, 142). 29.1 percent of Asian-American persons held profes
sional, managerial, and administrative positions, while 7.2 per
cent were laborers, and 16.9 percent were service and private
household workers (id. at 31. 90,149).
43
■while it was still largely segregated.40 Minorities
educated in California were subjected to widespread
discrimination.41 Racial discrimination against gener
ations of blacks and other racial minorities stamps
its mark on future generations.42 The Medical School
40 In 1970, 41.1 percent of all American-born black persons
residing in California had been bom in the South. Almost 48
percent of all American-born blacks between the ages of 20-29,
and living in California, were born in the South (U.S. Bureau
of tho Census, 1970 Census, Yol. I. Characteristics of the Popula
tioni, California, p. 6-1149 (1973)).
41 See Appendix B to the brief for the XAACP Legal Defense
and Educational Fund as amicus curiae. In fiscal year 1976, 34
school districts in California received basic grants under the Emer
gency School Aid Act, 86 Stat. 354, as amended. 20 U.S.C. (Supp.
V) 1601 et seq., to eliminate isolation of minority group students.
42 There may be support for the conclusion that educational dis
advantage among those applying for medical school is a function
of race rather than of the parental income of applicants. A recent
study indicates that grade point averages and MCAT scores of
low-parental-income white applicants to the 1976-1977 first year
classes of all medical schools ai’e not markedly different from
those of higher-parental-income white applicants, but that the
scores and grades of minority applicants (blacks, American In
dians, Mexiean-Americans and mainland Puerto Ricans) are decid
edly lower. The following table is based on Table 1 of that study:
All applicants White Minorities
More than Less than More than Less than More than Less than
Parental Income $10,000 $10,000 $10,000 $10,000 $10,000 $10,000
rnderstmrlnate Mean O PA. 3.30 3.15 3.34 3.27 2.80 2.79
MCAT Snbtest:
Verbal Ability....................... 545 510 553 548 466 43S
Science................................... 579 535 589 571 480 456
Wald man, Economic and Racial Disadvantage as Reflected in
Traditional Medical School Selection Factors: A Study of 1976
Applicants to U.S. Medical Schools 15 (1977). (This study was
prepared for the American Association of Medical Colleges.)
44
faculty here apparently recognized that the prior
academic performance of disadvantaged minority ap-
. plicants might not fully reflect their capabilities be
cause of poor schooling, economic burdens, and lack
of family support (R. 67-69). This concern supports
a program to overcome the effects of discrimination.
Discrimination palpably has affected the medical
profession. The opportunities for black persons to
obtain medical educations in this country have been
extremely limited. For most of the past one hundred
years, black persons were systematically excluded
from the medical schools in the South43 and only
token numbers were admitted to medical schools in
the North.44 Consequently, black persons seeking
43 At the end of World War II, all 26 of the medical schools
located in Southern or border States (one-third of the approved
medical codexes in the United States) were closed to blacks be
cause of their race. The first black student was admitted to a
Southern medical school in 1948, when Edith Mae Irby was per
mitted to register at the University of Arkansas. Morais, The
History of the Negro in Medicine 137 (1967). Integration of
Southern medical schools was avoided in 1948 by 14 Southern
governors, who signed a regional compact that, in part, provided
financial assistance to Meharry Medical College for the educa
tion of black students who had been denied admission to medical
schoois within their States. Murray, States’ Laws on Race and
Color 24-28 (A la.), 81-82 (F la .),‘91-96 (Ga.), 183-187 (La.),
201-205 (Md.), 241-245 (Miss.), 333-338 (X.C.), 363-368 (Okla.),
410-414 (S.C.), 432-436 (Tenn.), 666-675 (1951). These States
adopted this method of providing medical education despite the
fact that it already had been held unconstitutional. See Missouri
ex rel. Gaines v. Canada, 305 U.S. 337.
44 In 1947 a total of 82 black students were enrolled at 20 pre
dominantly white schools outside of the South. Morais, supra.
at 94.
45
medical educations were forced to rely principally on
the two predominantly black medical schools—How
ard University College of Medicine in Washington,
D.C., and Meharry Medical College in Nashville, Ten
nessee—which trained approximately 90 percent of
all black physicians who were educated in this
country.45
As racially discriminatory admissions policies were
slowly abandoned, black enrollment at traditionally
white medical schools increased. Between 1947-1948
and 1969-1970 the number of black students attend
ing medical schools almost doubled, yet the percent
age of black students among the total enrollment
remained fairly constant at approximately 2.6 per
cent.4'’ In 1950 approximately 2.2 percent of all phy
sicians were black,47 while almost 10 percent of the
total population was black.48 By 1970, 11.1 percent
of the population of the United States was black,49
yet the percentage of black physicians remained un-
4* Morais, supra, at 137.
48 Curtis, Blacks, Medical Schools, and Society 34, 41 (1971).
In 1947-1948, 588 black students were 2.59 percent of the total
medical school enrollment. In 1969-1970, 1042 blacks accounted
for 2.75 percent of all medical students. The only substantial
variation from these percentages occurred in 1968-1969, when
black enrollment dropped to 2.18 percent. Id. at 34.
47 Reitzes, Negroes and Medicine xxvii (1958).
48 U.S. Bureau of the Census, 1970 Census, Yol. I, Characteris
tics of the Population, United States Summary 1-262.
4!l 1970 Census, Vol. I. Characteristics of the Population, supra,
at. 1-262.
46
changed. Members of other minority groups, too,
are not likely to become physicians.51
5010,0 Census, \o l . I, Characteristics of the Population, supra,
at 1-739.
01 In 1909-19,0 American Indians wore less than 0.1 percent of
the medical school enrollment, 0.07 percent of all physicians, and
0.4 peicent of the total population. Mexican-Americans repre
sented 0.4 percent of all medical students and 2.2 percent of the
total population. Mainland Puerto Ricans accounted for less than
0.1 percent of the medical school enrollment and 0.7 percent of
the total population. Xo data are available on the numbers of
Mexican-Americans and Mainland Puerto Ricans who are physi
cians. Dube. Data,gram: U.S. Medical Student Enrollments 1008-
1000 Through 1072-1070. 48 J. Med. Edue. 293, 29G (1973); 1970
Census, Vol I, Characteristics of the Population, supra, at 1—262;
1970 Census, Subject Reports: Final Report PC (2)-7A , Occupa
tional Characteristics 593; Final Report PC (2)-1C , Persons of
Spanish Origin IX .
There is no apparent under representation of Asian-American
persons. The Asian-American population of the United States has
been estimated by the 1970 census to be 1.5 million, or .75 percent
of the total population. 1970 Census, Vol. I, Characteristics of the
Population supra, at 1-261,1-593,1-594 (The census figure has be
come outdated in light of substantia] immigration during the 1970s.
Piojections indicate that the Asian-American population will ex
ceed three million by 1980 (United States Department of Health,
Education, and Welfare, Office of Health Resources Opportunity,
Identification of Problems in Access to Health Sendees and Health
Careers for Asian Americans, II-5 -7 (1976)).) More than one-
third of that number live in California. 1970 Census, Vol. I,
Characteristics of the Population, supra, at p. 6- 86. 3.6 percent of
all physicians in the United States are Asian-Americans. U.S.
Bureau of the Census, Subject Reports, Final Report PC (2)-7A,
12 Occupational Characteristics (1973). It is not clear how many of
those physicians were educated in the United States. A study pre-
paied bj the Center for Health Services Research and Develop
ment of the American Medical Association indicates that, in 1970,
9,904 foreign medical graduates in this country were graduates of
medical schools in Japan, China and the Philippines. Of those,
9,796 were born outside of the United States. Ilaug and Martin,
47
Black physicians encountered obstacles to their pro
fessional development after graduation from medical
school. Until the 1940s only black hospitals or hospi
tals serving a predominantly black population would
accept black physicians for internships and residen
cies,52 and black physicians were largely excluded
from election to specialty boards.53 Racially discrimi
natory hospital practices continued until recent
times.5*
foreign Medical Graduates in the United States, 1070 292-293
(1971). From 1968-1969 through 1972-1973, the percentage of
Asian-Americans among all medical students ranged from 1.2 per
cent to 1.5 percent. Dube, Datagram : U.S. Medical Student Enroll
ments, 10(18-1000 Through. 1072-1073, 48 J. Med. Educ. 293, 296
(1973). From 1973-1974 through 1976-1977 it rose from 1.7 per
cent to 2.0 percent. Dube, Datagram: U.S. Medical Student Enroll
ment, 1072-1073 Through 1076-1077, 52 J. Med. Educ. 164, 166
(1977). Moreover, Asian-Americans as a group appear to score
as well or better than whites on the MCAT and in grade point
averages. Gordon. Descriptive Study of Medical School Appli
cants 1075-1076, Appendix Table A - l (1977).
At the same time, no one can doubt that this racial group has
been the subject of discrimination in this country. .See, e.g., Tick
IVo v. Hopkins, 118 U.S. 356; Ex parte Endo, 323 U.S. 283. Xor
is it clear that discrimination against Asian-American persons
is a thing of the past, Lau v. Nichols, 414 U.S. 563. Discrimina
tion may take subtle forms, and the admission of large numbers
of Asian-American students does not preclude the possibility of
discrimination. In 1975-1976 Asian-American applicants were ac
cepted into medical schools at a somewhat lower rate (31.7 per
cent) than whites (37.2 percent). Gordon, Descriptive Study of
Med iced School Applicants, 1075-1070, Appendix Table A - l
(1977).
“ Melton, The Negro Physician, 43 J. Med. Educ. 802 (1968).
53 Morais, supra, at 97.
54 See, e.g., Simkins v. Moses II. Cone Memorial Hospital, 323
F. 2d 959 (C.A. 4) (en banc), certiorari denied, 376 U.S. 938.
Black physicians also have been excluded from mem
bership in local affiliates of the American Medical As
sociation (AMA), a prerequisite for membership in
the national organization." Although in 1964 the AMA
rejected the practice of racial exclusion by its affili
ates," as late as 1968 many local affiliates in the South
still excluded black physicians from membership."
Moreover, because an appointment to a hospital staff
usually required membership in the local medical so
ciety, blacks were excluded from hospital staffs be
cause of their race."
In 1968 the Association of American Medical Col
leges (AAMC)59 formally recognized the dispropor
tionately low enrollment of minorities in medical
schools as a problem.60 Johnson, Smith and Tarnoff,
Recruitment and Progress of Minority Medical School
Entrants 1970-1972, 50 J. Med. Educ. 713, 721 (1975
Supp.). During 1969-1970 an AAMC task force issued
65 Morais, supra, at 153.
56 Curtis, supra, at 24.
r,T Melton, supra, 42 J. Med. Educ. at 799.
58 Morais, supra, at 153. See also Cypress v. Newport News Gen
eral and Nonsectarian Hospital Association, 375 F. 2d 648 (C.A.
4 )-69 The AAMC includes among its members all American and
Canadian medical schools. Association of American Medical Col
leges, Medical School Admission Requirements 1078-1979 iii
(1977).
00 In 1968 the AAMC Assembly adopted the following recom
mendation: “Medical schools must admit increased numbers of
students from geographic areas, economic backgrounds and ethnic
groups that are now inadequately represented.” Johnson, Smith,
and Tamolf, supra, at 721.
49
a report recommending that medical schools increase
the proportion of minorities enrolled, and it included
specific numerical goals.61 In November 1970 the
AAMC Assembly adopted a resolution urging schools
to undertake and continue affirmative action pro
grams. AAMC, Medical School Admission Require
ments 197S-1979 9 (1977). Many of the medical
schools in the country became involved between 1968
and 1971 in efforts to assure equal educational oppor
tunity.62 The special admissions program of the Davis
Medical School is part of this trend.
61 The task force recommended a goal for minority (black. Mex-
ican-American, American Indian and Puerto Rican) admissions
of 12 percent bv 1975-1976. Report of the Task Force to the Inter-
Association Committee on Expanding Educational Opportunities
in Medicine for Blacks and Other Minority Students 1 (1970).
The report was endorsed by the American Hospital Association,
the American Medical Association, and the National Medical As
sociation, as well as the AAMC. Johnson, Smith, and Tarnoff,
supra, at 721.
02 Odegaard, Minorities in Medicine 11 (1977). citing A\ elling-
ton and Gyorffy, Draft Report of Survey and Evaluation of Equal
Educational Opportunity in Health Profession Schools Table II
(1975). In 1972 Wellington and Gyorffy surveyed the traditionally
white health profession schools. All of the medical schools re
sponding—89 out of 112—had recruitment programs directed to
ward minority or disadvantaged students (Wellington and
Gyorffy, Draft Report of Survey and Evaluation of Equal Edu
cational Opportunity in Health Profession Schools Table V III).
Twenty-seven percent of the schools reported that they had as a
goal some stated percentage of minority students in their entering
class (ibid.). At 16 percent of the medical schools, minority or
disadvantaged students were selected for admission by a different
group than that which selected all other students (ibid.)- More
than two-thirds of the responding medical schools had modified
50
I I I
■THE CENTRAL ISSUE ON JUDICIAL REVIEW OF A MINORITY-
SENSITIVE PROGRAM IS WHETHER IT IS TAILORED TO
REMEDY THE EFFECTS OF PAST DISCRIMINATION
When a State considers race in distributing bene
fits, its program must be examined carefully for two
reasons. First, a racial classification that purports to
be benign, i.e., to aid the victims of past racial dis
crimination, may prove to be as invidious, in purpose
or effect,03 as traditional racial classifications have
been. United Jewish Organizations of WiUiamsburgh,
Inc. v. Carey, supra, 430 U.S. at 173-174 (Brennan,
J\, concurring). Assertion of a benign purpose should
not immunize a racial classification against a search
ing judicial inquiry. See Weinberger v. Wiesenfeld,
420 U.S. 636, 648.
Second, the State may not take account of race
where such consideration is not necessary to achieve
a legitimate governmental objective. The Constitu-
admissions procedure in order to permit entry of greater numbers
of minority students; three-fourths of the responding schools had
modified admissions criteria for minorities (ibid.). One-half of
the responding medical schools had pre-enrollment programs for
minorities (ibid.). Eighty percent of the responding medical
schools had special financial programs for minority or disadvan
taged students (ibid.).
03 For example, laws intended to benefit some women have been
struck down because they operate to the disadvantage of others.
See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636. Moreover, such
a law may be based on stereotypes and, as a result, operate to
reinforce them. Ibid.
51
tion places restraints on the use of race as a sorting
mechanism because it “bears no relation to tne inai-
vidual’s ability to participate in and contribute to
society.” Mathews v. Lucas, 427 U.S. 495, 505. The
United States has undertaken to foster the principle
that race itself is unrelated to merit or qualification
and to discourage the belief that race is generally
a legitimate basis for distributing opportunities. To
do otherwise would risk encouraging divisiveness and
political organization along racial fines, emphasizing
the importance of race and perpetuating thinking in
racial terms.05 Moreover, it would risk reverting to
the very thinking that has in the past resulted in
invidious discrimination—the consideration of racial
stereotypes to the exclusion of individual character
istics. The Fourteenth Amendment protects all per-
04 Kaplan, Equal Justice in. An Unequal World: Equality for
the Negro—The Problem- of Special Treatment, 61 Xw. U.L. Rev.
363, 375-380 (1066). See United Jewish Organizations of 11 d-
liamsburgh, Inc. v. Carey, supra, 430 U.S. at 174 (Brennan, J.,
concurring). See also O’Neil, Preferential Admissions: Equaliz
ing the Access of Minority Groups to Higher Education. 80 Yale
L..T. 600. 700-710 (1074); Greenawalt. Judicial Scrutiny of
‘‘Benign'' Racial Preference in Law School Admissions, <5 Colum.
L. Rev. 550, 570-573 (1075).
05 Legislation along racial lines that purports to be benign may
stigmatize a beneficiary group by implying “to some the recipients’
inferiority and especial need for protection. United Jewish Oi-
ganizations of WiUiamsburgh. Inc. v. Carey, supra, 430 U.S. at
173-174 (Brennan, ,T., concurring). But any possible stigma must
be weighed against the benefits to the group to determine the pur
pose and effect of the legislation. Moreover, since such a stigma
would be directed at the group as a group, the benefits to the
group as a whole should be examined.
52
sons without regard to race,66 and that protection
can be assured only by close examination of minority-
sensitive state action.07
6n This Court’s treatment of employment discrimination against
white persons demonstrates this point. McDonald v. Santa Fe
Trail Transportation Go., 427 U.S. 273, field that civil rights
statutes passed immediately after the Civil War protect white
persons against racial discrimination. The Court considered and
rejected arguments, similar to those made by petitioner, that white
persons were not in need of protection against racial discrimina
tion ; the Court examined in detail the debates during the Recon
struction Congresses and concluded that the legislators who had
proposed the Fourteenth Amendment intended, in the contempo
raneous legislation at issue in that case, to shield members of all
races from discrimination. “Unlikely as it might have appeared in
1866 that Avhite citizens would encounter substantial racial dis
crimination * * * the 39th Congress was intent upon establish
ing in the federal law a broader principle than would have been
necessary simply to meet the particular and immediate plight of
the newly freed Xegro slaves” (427 U.S. at 295-296). That conclu
sion applies to the Fourteenth Amendment—which was proposed
in substantial measure to settle Congress’ constitutional authority
to enact civil rights legislation—no less than to the statutes under
consideration in McDonald.
The Court observed (427 U.S. at 281 n. 8) that it was not pre
sented with a question concerning “an affirmative action program,”
and it did not pass upon the propriety of such a program. We do
not interpret McDonald as establishing a statutory bar against
use of race that is more complete than the constitutional rule. We
refer to the case not to show that affirmative action programs are
forbidden but to demonstrate that the Fourteenth Amendment
demands that they be examined carefully. See also Trans World
Airlines, Inc. v. Hardison, Xo. 75-1126, decided June 16, 1977,
slip op. 6-7.
07 Congress has been sensitive to these concerns, and it has pro
vided that race should not be used for certain purposes. 42 U.S.C.
1981 forbids discrimination against white persons (see McDonald
v. Santa Fe Trail Transportation Co., supra). 42 U.S.C. 3766(b)
53
At the same time, such an inquiry does not call for
rejection of minority-sensitive programs when em
ployed in a remedial manner. As we have discussed
above (see pages 30-10, supra), the lingering conse
quences of past use of race should be addressed. As
provides that the Law Enforcement Assistance Administration
may not condition any grant upon the refusal of the recipient to
eliminate racial imbalance in its workforce. See also 122 Cong.
Eec. S17320 (daily ed., September 30, 1976). Section 703(j) of
Title V II of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (j),
provides that nothing in Title V II “shall be interpreted to require
any employer * * * to grant preferential treatment to any in
dividual or to any group because of the race * * * or national ori
gin of such individual or group on account of an imbalance which
may exist with respect to the total number or percentage of per
sons of any race” employed.
Section 703 (j) does not, of course, apply here since this is not
an employment case; moreover, the Medical School adopted the
special admissions program voluntarily, and Section 703 (j ) does
not purport to limit the programs that may be voluntarily adopted.
But the judicial treatment of Section 703(j) is instructive. The
courts have recognized in it an attempt by Congress to differen
tiate between using race to rectify previous discrimination and
using race to attain racial balance for its own sake. Accordingly,
they have upheld orders based upon findings of past discrimina
tion and designed, to overcome racial imbalance caused by that dis
crimination. See, e.g., Rios v. Enterprise Association, 501 F. 2d
622 (C.A. 2) ; Boston Chapter, N.A.A.C.P., Inc. v. Beecher, supra.
This is much the same position that this Court has adopted, on
constitutional grounds, in school desegregation cases. See, e.g.,
Dayton Board of Education v. Brinkman, supra-, Swann v. Char-
lotte-Mecklenburg Board of Education, supra. Cf. Drummond v.
Acree, 409 U.S. 1228 (Powell, J., in chambers). The fact that Con
gress has resolved the competing interests in this fashion strongly
suggests that States and private parties should be entitled, to con
sider race in a similar fashion.
54
long as prior discrimination lias present effects, mere
neutrality to race is insufficient. Green v. County
School Board, 391 U.S. 430. As long as the effects of
past racial discrimination persist, the employment of
race-consciousness in rectifying that discrimination
should not be abandoned.
Judicial review of such programs should not be cur
tailed because of assertions that the programs reflect
a decision by a paiticular majority to discriminate
against itself. This Court has on other occasions re
jected similar arguments. Lucas v. Forty-Fourth Gen
eral Assembly of Colorado, 377 U.S. 713, 736-737; Cas
taneda v. Partida, Xo. 75-1552, decided March 23,
1977; Craig v. Boren, 429 U.S. 190, 197. Of course, the
circumstances of a program’s adoption are pertinent to
the judicial inquiry.08 But the Court’s central concern
should be whether the program is tailored in design
and application to remedy the effects of past discrimi
nation. See pages 30-40, supra,
™ Morton v. Mancarl, 417 U.S. 535, upheld a statute'giving
tuba! Indians a preference for employment in the Bureau of In
dian Affairs. Similarly, United States v. Antelope, Xo. 75-601
decided April 19, 1977, upheld a classification that in some cases
(depending on state law) treated an Indian defendant more
larshly than a similarly situated white defendant. The Court
explained ^(sfip op. 4) that “legislation with respect to Indian
tubes is not based upon impermissible racial classifications.
Quite the contrary, classifications expressly singling out Indian
S - SUbj^ f „ leAlslation are exPressly provided for in the
Constitution . Since legislation pertaining to tribal In
dians does not have a racial basis, the Indian cases do not support
either petitioner or respondent here.
oo
A . A P R O G R A M I S T A IL O R E D t o r e m e d y t h e e f f e c t s o f p a s t d i s c r i m i
n a t i o n I F I T U S E S R A C E T O E N H A N C E T H E F A IR N E S S O F T H E
A D M IS S IO N S P R O C E S S
As we have pointed out at pages 30-33, supra, this
Court has held that race may properly be considered
for remedial purposes. When a governmental agency
undertakes to ensure that the effects of past dis
crimination are not allowed to mask an individual’s
merit, it necessarily takes race into consideration.
Although in some circumstances it is possible to deter
mine whether a particular person has been harmed
by discrimination, and to provide particular relief
to persons so harmed (see, e.g., International Brother
hood of Teamsters v. United States, supra, slip op.
48-49 and n. 62), that determination often cannot be
made. Racial discrimination has been pervasive in
our society. People who are educationally and eco
nomically disadvantaged are particularly likely to
have been affected by discrimination. Moreover, a
minority community, as a whole, may suffer the ef
fects of exclusion of its members from economic and
educational advantages. Although it may be practical
to require an institution to address the results of its
own discrimination on a case-by-case basis,09 it is
necessary to use another approach when an institu
tion tries to cope with the effects of discrimination
by society as a whole.
08 This is not universally the case. The remedies used .in school
desegregation cases are general; relief is not limited to individual
students who may have been assigned to school for racial reasons.
Because racial discrimination in the operation of schools has per
vasive effects, the remedy is not confined to identifiable victims.
56
Societal discrimination may have left minority ap
plicants with credentials less impressive than they
would have possessed if they (and their forebears) 70
had not been subjected to discrimination. Because
competition for admission to professional schools is
keen, even small differences in such criteria as grades
and entrance test scores may make the difference
between admission and rejection. Decades of discrim
ination by public bodies and private persons may
have far-reaching effects that make it difficult for
minority applicants to compete for admission on an
ecpial basis. The consequences of discrimination are
too complex to dissect case-by-case; the effects on as
pirations alone may raise for minority applicants a
hurdle that does not face white applicants to profes
sional schools. A professional school dealing with im
ponderables of this sort ought not be confined to the
choice of either ignoring the problem or attempting
the Sisyphean task of discerning its importance on
an individual basis. When individual measurement
would be impractical, a State properly may use cate
gorical means. Cf. Gaston County v. United States,
395 U.S. 285, 295-296; Califdno v. Webster, supra;
Kahn v. Shevin, supra. See also Milliken v. Bradley,
No. 76-447, decided June 27, 1977, slip op. 15 (dis
crimination can “breed other inequalities” that call for
generalized relief).
70 Because learning and. development in the home in the early
childhood years can be particularly important to the formation of
aspirations and intellectual achievement, the effects of discrimina
tion may be transmitted from one generation to another.
57
I t might be said in response that such an argument
would not apply to admissions to professional schools.
Applicants to professional schools have been success
ful in the competition to enter college and they have
received a college education. Only the best of the
minority applicants to professional school can be
chosen. This process of selecting from among the
minority applicants means that a professional school
will admit only those minority applicants who have
suffered the least from discrimination.
We believe, however, that this response would be
incomplete. I t compares members of minority groups
to one another. The pertinent comparision should be
between the most highly qualified whites and the most
highly qualified blacks, Chicanos and Asian-Ameri-
cans: who, among these “ most highly qualified” per
sons, are more likely to have suffered because of
discrimination, either in their personal lives or be
cause it influenced their upbringing, career aspira
tions, or intellectual development'? The residual and
pervasive effects of societal discrimination may keep
the most highly qualified minority applicants from
having credentials quite as impressive as those of the
most highly qualified white applicants. And, because
there are vastly more white applicants than minority
applicants, even a small difference in such credentials
can have a great effect on the prospects of admission.71
71 An illustration may be helpful. Suppose that 1000 people
apply for 100 positions in a professional school. Suppose, further,
that 20 percent of the applicants come from minority groups that
have been the victims of recent discrimination. The professional
school decides to admit the 100 applicants with the highest grade
point averages in college. I f the discrimination had lingering
245-900— 77------5
58
Race may be pertinent to admissions decisions
because it gives information that will be helpful
effects on the minority applicants—because they were required to
work during college and had less time to study, because discrim
ination in primary and secondary education meant that they came
to college less well prepared, because the environment in which
they were raised was less conducive to intellectual development, or
for any of numerous other reasons—we would expect each appli
cant to do slightly less well in obtaining high college grades. The
median grade point average for whites might be 3.0, and the me
dian for minority applicants might be 2.6. The difference would
be only slightly significant, but it would produce striking results.
The following table represents the expected distribution of grades:
Number of Applicants
W hites Minorities
Grade range (800 total) (200 total)
3.7 to 4.0_______________________________________ 24 1
3.5 to 3.09_______________________________ 40 2
3.3 to 3.40--------------------------------------------------------- 80 0
3.1 to 3.20--------------------------------------------------------- 136 io
2.0 to 3.00—------------------------------------------------------- 200 20
2.7 to 2.89---- 1---------------------------------------------------- is o 34
2.5 to 2.00--------------------------------------------------------- SO 50
2.3 to 2.40______________________________________ 40 34
Below 2.3______________________________________ 64 33
In order to take the 100 applicants with the highest grade point
averages, the school would accept every applicant with a grade
point average higher than 3.5. This would include 64 whites and
three minority applicants. The 33 remaining places would be
filled from the pool of applicants with averages between 3.3 and
3.40. The ratio of whites to minority applicants in that pool is ap
proximately 13 to one. The school would therefore accept 31 whites
and two minority applicants or 30 whites and three minority appli
cants. The expected final distribution of the class would be 04 or
95 whites and five or six members of minority groups. This exam
ple demonstrates how the large number of white applicants, cou
pled with even a small effect attributable to past discrimination,
can lead to the selection of an overwhelmingly white class unless
race is taken into account.
59
in understanding the meaning of the credentials
that an applicant presents. A grade point aver
age of 2.6 produced by a minority applicant may
indicate every bit as much potential to be a physi
cian as a 3.0 average by a white applicant, because
the minority applicant has demonstrated not only
the ability to succeed in obtaining grades but also the
determination and ability to overcome non-academic
hurdles. The evaluation of the meaning of the 2.6
average is assisted by cognizance of color. Such con
siderations are identical in principle to the “differ
ential validation” of employment tests approved in
Albemarle Paper Go. v. Moody, supra. The criteria
for admission to a professional school operate much
like the employment tests given by private employers,
and consideration of the race of professional school
applicants can validly serve much the same function
as differential validation of employment tests: it can
adjust for differences in credentials that may be
caused by race but have little or nothing to do with
the ability to succeed.
In other words, race may properly be taken into
account to increase the pool of apparently “ qualified”
applicants and to evaluate them more accurately. Es
pecially in light of the impracticality of devising rigid
rules to govern admissions decisions, race may be
useful to provide more complete information about
the meaning of credentials that, standing by them
selves, do not fully reveal the applicant’s abilities and
potential. The Medical School’s benchmark scores, for
example, do not reflect a simple addition of points
60
representing quantifiable achievements. Grades given
by different colleges, or in different courses, or even
by different professors, are not fungible indicia of
either achievement or ability. And the circumstances
under which grades are earned (e.g., while also work
ing elsewhere, despite inferior preparatory education,
or despite the psychological and other burdens of
racial discrimination) are also highly pertinent. For
ail these reasons, raw scores do not convert directly
into accurate assessments of aptitude for professional
achievement.
Professional schools therefore must have discretion
to seek to make judgments about applicants that can
not be captured in a simple formula. See United Jew
ish Organizations, supra, 430 U.S. at 173 (Brennan,
J\, concurring); Brest, The Supreme Court, 1975
Term, Forward: In Defense of the Antidiscrimination
Principle, 90 Harv. L. Rev. 1, 19, 31 (1976). In
searching for those applicants most likely to con
tribute to the medical profession, medical schools
look not only at aptitude to learn but also at moti
vation, self-discipline, personal interests, and the ex
tent to which applicants can diversify and enrich the
profession. The admissions process involves many dif
ficult and subjective decisions. Often admissions com
mittees must ask whether an applicant with higher
grades should be admitted over one with more self-
discipline. Comparisons of this sort are common and
inescapable. The fact that the question calls for con
sideration of so many imprecise factors suggests the
wisdom of deference to the answer given by the ad
missions committees charged with making such de
cisions every day.
61
A particularly intensive search for minority appli
cants is essential to a properly administered affirma
tive action admissions program. I t is constitutionally
permissible, for example, for a professional school
to conclude that it is not administratively worthwhile
to interview non-minority applicants with less than
.a particular grade point average. The large number
of white applicants may make it too unlikely that any
with less than that average would ultimately be ad
mitted even if interviewed. The added factor of
minority disadvantage, however, can make it appro
priate not to observe the same cut-oil point in offering
interviews to minority applicants. And we see nothing
•constitutionally improper in tne initial screening of
minority applicants by a committee with specialized
knowledge of, or insights into, their peculiai qualifi*
•cations. These can all be appropriate measures in
.seeking to enhance the fairness of the admissions
process.
In making the difficult admissions decisions, rea
sonably selected numerical targets ^ r minority ad
missions can be useful as a gauge of the program s
■effectiveness.72 The United States has found such an
.approach useful in other contexts. For example, a
72 Any substantial disparity between the available minoiity pop
ulation and the rate of admissions (or employment, in employment
•cases) gives rise to a rebuttable inference that discrimination is at
work and makes it appropriate to take steps to correct that condi
tion. See, e .g ., H a z e lw o o d S c h o o l D i s t r i c t v. U n ite d S t a t e s , No.
'76-255, decided June 27, 1977; D o th a r d v. R a w lin s o n , s u p r a ; I n
te r n a t io n a l B r o th e r h o o d o f T e a m s te r s v. U n ite d S ta te s , s u p r a ;
C a s ta n e d a v. P a r t i d a , s u p r a ; A lb e m a r le P a p e r G o rp . v. M o o d y ,
. s u p r a ; G r ig g s v. D u k e P o w e r C o ., su p ra .
245-950— 77------ 6
I
62
policy statement issued on March 23, 1973, by the
Department of Justice, the Department of Labor,
the Civil Service Commission and the Equal Employ
ment Opportunity Commission, endorses the use of
flexible goals that “help measure progress in remedy
ing discrimination.” I t points out, however, that
“ [a]ny system which requires that considerations of
relative abilities and qualifications be subordinated to
considerations of race * * * has the attributes of a
quota system which is deemed to be impermis
sible * *
The policy statement concluded that an employer
should not “ be required to hire a less qualified person
in preference to a better qualified person, provided
that the qualifications used to make such relative
judgments realistically measure the person’s ability
* * *.” In other words, “persons are to be judged
on individual ability,” and it is most useful to take
race into account in making selections among appli
cants “who are substantially equally well qualified.”
The statement recognized, however, that the adoption
of qualifications that themselves exclude substantial
numbers of minority applicants makes the usefulness
of the standards suspect and calls for reassessment.73
73 The policy statement is reproduced, as Appendix D to this
brief. It also appears at CCII Employment Practices 3775.
These guidelines were designed with the employment context in
mind. They should be interpreted, therefore, insofar as admission
- to professional schools is concerned, in light of what we have said
earlier (pages 58-61, supra) about the imprecision of admissions
criteria and the need of these institutions to have wide latitude in
making admissions decisions.
63
B . T H E R E I S N O A D E Q U A T E A L T E R N A T IV E T O T H E U S E O P M IN O R IT Y -
S E N SITTV iE A D M IS S IO N S C R I T E R I A
The Supreme Court of California concluded that a
compelling case for the use of a minority-sensitive
admissions program had not been made out because
the University had not established that non-racial
criteria would be ineffective to achieve the Univer
sity’s legitimate goals (see Pet. App. 23a-28a). The
Supreme Court of California suggested two major
approaches that the University might try: expansion
of the size of medical school classes and extension
of a preference to all disadvantaged applicants.
The suggestion to increase the size of the class is
beside the point; it would not answer the question
whether, at any given size of class, the admissions
committee may take color into account. The same
problem confronts medical schools whether they ad
mit 100, 200 or 500 students: unless race is taken
into account, there will be very few black and Chi-
cano students in the class. Minority applicants will
continue to be handicapped by the lingering effects
of discrimination.
The suggestion to replace a preference for race
with a preference for economically disadvantaged ap
plicants fares no better. Previous discrimination may
handicap economically disadvantaged black and Chi-
cano applicants even compared with other disadvan
taged applicants.74 Professional schools cannot fairly
compare disadvantaged persons to one another (or
disadvantaged to non-disadvantaged persons) without
74 See note 42, supra.
64
taking race into account. At any level of personal (or
parental) income, being black or Cliicano is an extra
disadvantage; even among the materially disadvan
taged there is a hierarchy, the lower rungs of which
are filled by the victims of especial prejudice.
The statute at issue in Califano v. Webster, supra,
may illustrate this point. Congress allowed women,
in computing entitlements to retirement benefits, to
disregard three more low-earnings years than men.
As a result, women obtained slightly higher retire
ment benefits than they would have received if they,
like men, had taken the three low-earnings years into
account; without considering those years, women’s
average income, upon which benefits were based, was
increased. The Court held that this statute was a ra
tional means of compensating women for discrimi
nation against them in the labor market.
I t might have been argued in Webster that, if Con
gress were concerned about the low wages earned by
women, it should have increased the retirement bene
fits of all persons who experienced low earnings. But
this would not have worked. At any level of skill
women were earning, as a result of discrimination, less
than they would have earned if they had been men. If
a man and a woman each had an income of $5,000
yearly, this would not have established the absence of
•discrimination. But for the discrimination, the woman
might have been earning $6,000. The only way to re
store even rough equality in the payment of retire
ment benefits was to treat the woman as if she had
been earning more—that is, to give women a pref-
65
erence, even among low-wage earners. Moreover, be
cause it was impossible for practical reasons to de
termine which women had been victimized by discrimi
nation over the course of a lifetime, it was both
necessary and fair to give the adjustment to all
women.75
So it is with minority applicants to professional
schools. In order to restore victims of discrimination
to the position they would have occupied but for the
discrimination, and to make a fair assessment of their
achievements and potential, it is proper to credit them
with having surmounted obstacles not faced by non
victims. The need and justification for such special
consideration exist whether the Medical School con
centrates upon the affiuent or the poor. The argument
that race must be replaced with a reliance upon pov
erty assumes that race is but a proxy for some “ more
germane [basis] of classification” (Craig v. Boren,
supra, 429 U.S. at 198). Bor the reasons we have dis- -
cussed, however, race has an importance of its own
in this context that is not dependent in any way upon
being a proxy for other things. The Medical School
therefore is entitled to make an independent use of
race.76
75 Even with the assistance of the statutory adjustment, women
received lower average retirement benefits than did men. Slip
op. 5, n. 5.
78 It is far from clear, moreover, that the options suggested by
the Supreme Court of California would help respondent. The ex
tension of preferential treatment to all materially disadvantaged
applicants would simply reduce still further the emphasis placed
66
IV
THE SUPREME COURT OF CALIFORNIA APPLIED INCORRECT
LEGAL STANDARDS IN EVALUATING THE CONSTITUTION
ALITY OF THE SPECIAL ADMISSIONS PROGRAM
A . T H E D E C L A R A T O R Y J U D G M E N T F O R B ID D IN G T H E U S E O F M IN O R IT Y -
S E N S I T I V E A D M IS S IO N S P R O G R A M S S H O U L D B E R E V E R S E D
The judgment of the trial court (Pet. App. 120a)
includes a declaratory order that the special admis
sions program violated the Fourteenth Amendment of
the Constitution. Although this declaratory judgment
does not on its face specify that any minority-sensitive
program also would violate the Constitution, it prob
ably has this meaning in light of the conclusion of the
trial court, with which the Supreme Court of Cali-
by the Medical School on academic credentials. Since respondent
relies upon his academic credentials rather than upon any personal
disadvantage as the basis for admission, it must follow that lie
would be no better off if the Medical School had followed the
course suggested by the California court.
This assessment is confirmed by a study of all 1972 high school
graduates applying to four year colleges. The study, conducted
by the Office of Education of the Department of Health, Educa
tion, and Welfare, indicates that any selection system based upon
disadvantage, and designed to enroll members of minority groups
comparable to the proportions of these groups in the general pop
ulation, would require that a very largo portion of college classes
be selected from among disadvantaged applicants. This would
close many places in the class to non-disadvantaged applicants
with higher grades. Carroll, A Comparative Analysis of Three
Admission/Selection Procedures (1977) (H.E.W. Technical
Taper 77-D-l). In other words, a general preference for disad
vantaged applicants would leave applicants like respondent worse
off than they arc under a system of preferences for minority
applicants.
67
fornia agreed, that the Constitution forbids any use of
race in making admissions decisions. Moreover, the
trial court’s judgment with respect to respondent per
sonally declares that the University shall not consider
respondent’s race “or the race of any other applicant”
{ibid.) in passing on respondent’s application for
admission.
The declaratory judgment concerning the special
admissions program as a whole responds to the Uni
versity’s counterclaim for an order approving its use
of minority-sensitive decisionmaking. I t therefore sur
vives the order of the Supreme Court of California
(Pet. App. 80a) that respondent be admitted to the
Medical School.
"We believe that the declaratory aspects of the
judgment below are erroneous. We have discussed at
length the reasons supporting the propriety of minor
ity-sensitive decisionmaking in the process of ad
mitting applicants to professional schools. To the ex
tent that the judgment of the state courts forbids on
federal constitutional grounds the formulation and
administration of an affirmative action program con
sistent with the principles we have set out, it should be
reversed.
B . W H E T H E R R E S P O N D E N T W A S W R O N G F U L L Y D E N IE D A D M IS S IO N T O
T H E M E D IC A L S C H O O L S H O U L D N O T B E D E C ID E D O N T H E P R E S E N T
R E C O R D
Under the analysis developed above, it is constitu
tional in making admissions decisions to take race
into account in order fairly to compare minority and
non-minority applicants. I t is not clear from the
69
68
record whether the Davis program operated in this
manner. The findings of the trial court leave un
resolved serious questions concerning operation of the
special admissions program at Davis in 1973 and 1974,
We briefly note some of these questions.
1. The trial court found (Pet. App. 111a, 115a) r
and the University does not contest, that 16 places
were reserved for special admittees. But one question
not resolved by the findings is whether there was
any comparison of special with regular applicants.
Although the trial court found that regular and
special applicants were “rated” separately (Pet. App.
115a), it did not determine whether all applicants
were compared by the regular admissions committee.
The evidence we have summarized at pages 8-14,.
supra, indicates that the regular admissions commit
tee played some role in the selection of all 100 stu
dents, but it does not indicate what that role was.
I t also is unclear whether or how the benchmark
ratings of special applicants were compared against
the benchmark ratings of regular applicants. The
trial court found that some special applicants who
were admitted had benchmark scores substantially
lower than those of respondent and some other regu
lar applicants who were not admitted (Pet. App.
115a). On the other hand, at least one regular appli
cant who was admitted had a benchmark rating lower
than that of respondent (R. 1S1), and there was some
evidence that the “ range” of benchmark scores among
special applicants was comparable to that of regular
applicants (R. 181).77 The record does not permit a
direct comparison of the benchmark scores of regular
and special applicants,78 but if there was a compari
son of regular and special applicants by the regular
admissions committee prior to selection, this would
indicate that race had not been used improperly. This
inquiry is pertinent to this case, which involves a
professional school. This Court need not decide
whether such an inquiry is necessary in determining
the proper use of race in other admissions programs
or other situations.
2. The trial court found that a “pre-determined
quota of 16” special applicants to be admitted (Pet.
App. 115a) had been set aside. I t is not clear what
the court meant by “quota.” 78 We have argued above
77 It is not clear whether “range” refers to median scores, to the
number of points between the highest and lowest scores, or to the
absolute rating number.
78 We have discussed some deficiencies in the record. Two other
questions also require resolution before it is possible to draw con
clusions regarding the extent to which regular and special appli
cants are compared. First, if there are differences in the bench
mark scores of regular and special applicants who are accepted
for admission, may this difference be explained by the fact that
different faculty members and students evaluated the applicants?
Second, is race taken into accoimt in assigning benchmark scores?
The difference in the composition of the committees (rather than
any difference in the qualifications of the applicants) may explain
apparent differences in benchmark evaluations, and any further
apparent difference might disappear if the regular admissions
committee were charged with taking race into account after the
special committee had assigned its benchmark ratings based on
other considerations.
79 The trial court seems to have used “quota” to refer to any
numerical designation (see Pet. App. 115a, 117a). But not all
70
that the Constitution permits a professional school
to seek to achieve reasonable goals or targets (in
contrast to rigid exclusionary quotas) for minor
ity admissions, because success in achieving these
goals is a measure of the effectiveness of a pro
gram in overcoming the present effects of racial
discrimination. But because any target or goal should
be reasonably related to the program’s justifications,
it is helpful to know why a particular target is se
lected. The record contains no explanation for the
selection of the number 16 (see Pet. App. 2a n. 1).
Moreover, it is not clear whether the number was
inflexible or was used simply as a standard for assess
ing the program’s operation.
3. I t is not clear from the record why Asian-Amer
ican persons are included in the special program.
There is no doubt that many Asian-American per
sons have been subjected to discrimination. But al
though we do not know the application rates for
Asian-Americans at Davis, the available evidence sug
gests that Asian-American applicants are admitted in
substantial numbers even without taking special ad
missions into account. In 1973,13 of the 84 regular ad
missions places in the class were filled by Asian-Ameri
can students, although no more than six percent of the
young college graduates in California are Asian-
American.80 Other data also suggest that Asian-Amer-
numbers are “q u o t a s t h a t question depends on how the number
was used and for what reason, matters that the trial court did not
explore.
80 Compare the table at page 9, supra, with the information
compiled by the census. In 1970, black persons represented 2.5
percent, Spanish-speaking and Spanish-sumamed persons 5.8 per
cent, and other racial minorities 5.6 percent of the persons in Cali-
71
ican applicants compete successfully for professional
school admission without the assistance of special
consideration.81 Although it may well be that disad
vantaged Asian-American persons continue to be in
need of the special program to overcome past dis
crimination, the record is silent on that question.82
4. As wTe have argued above, minority-sensitive
programs designed to overcome the effects of past
discrimination upon applicants to medical school are
constitutional. Petitioners have asserted additional
justifications for such programs, including, for ex-
ample, the relative likelihood of minority physicians
serving minority communities. Regardless of the
merit of such justifications if substantiated, the rec
ord contains no evidence to demonstrate that they
would support the particular special admissions pro
gram at issue here.
5. Deficiencies in the record and in the findings of
the trial court thus prevent a final assessment of the
constitutionality of the University’s special admis
sions program. The trial court addressed its findings
to the question whether the special admissions pro
gram employed race in some manner; it did not ad
dress the question, which we believe is highly signifi
cant, of how race was used, and why.
I — :------
fomia with college degrees and between the ages of 20 and 29.1970
Census, Vol. I, Characteristics of the Population, California
>Supra, at pp. 6-1271 to 6-1272. The potential Asian-American
college graduates represent an unknown proportion of the “other”
minorities in the census compilation.
81 See notes 39 and 51, supra.
82 The record contains no information with respect to the reason
for including Asian-Americans in the special admissions program,
and the University’s brief does not discuss Asian-American appli
cants. Compare Br. 21 n. 13 witli Br. 23 and n. 22.
t-
72
Both petitioner and respondent argued in the trial
court and on appeal that this case could be resolved
by answering a simple question: was the Medical
School using race in making admissions decisions?
The evidence introduced by the parties, and the find
ings made by the trial court, were addressed to this
question. The Supreme Court of California, too,
viewed it as dispositive. Consequently, the findings,
and, indeed, the record are in many respects silent
concerning how race was taken into account, and for
what reason. Responsibility for that silence cannot be
assigned to either party; both parties to this case took
what we have concluded is an incorrect approach to
difficult and unsettled legal questions.
This Court should not assume the role of the
state courts in analyzing the record to supply nec
essary findings. Since the inadequacy of the find
ings is attributable to application of an erroneous
legal standard, it is most appropriate to give the
lower courts an opportunity to amplify those find
ings in light of the principles expressed in the Court’s
opinion.
Moreover, even if the evidence and findings were
sufficient to permit a final resolution of the ques
tion whether the special admissions program was
constitutional, the question would remain whether
respondent is entitled to admission. Even if it were
proper to conclude that the program was unconsti
tutional, the University would be entitled to show,
if it could, that respondent still would have been
denied admission. See, e.g., Ht. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274,
73
285-287. The Supreme Court of California offered
petitioner the opportunity to make such a showing
(Pet. App. 38a-39a), and the University conceded
that it could not show that, but for the existence of
the special admissions program, respondent would
not have been admitted (Pet. App. 80a). But the
state court’s offer, and the University’s concession,
were based on the incorrect principle, reflected in
the state courts’ opinions, that race could not be
taken into account at all in making admissions de
cisions. Under the principles discussed in this brief,
however, race has a legitimate use in making admis
sions decisions. Even if the Medical School used race
in an impermissible way, therefore, the Supreme
Court of California should have allowed the Univer
sity an opportunity to establish on remand that re
spondent would not have been admitted if the special
admissions program had been administered in a way
consistent with constitutional principles. That remand
order would be quite different from the one the state
court actually entered.
In sum, we believe that the judgment of the Su
preme Court of California should be vacated and
the case remanded for further proceedings consistent
with the views expressed here. See Dayton Board of
Education v. Brinkman, supra. The trial court should
have an opportunity to make appropriate findings
based on the existing record. Furthermore, the state
courts may deem it appropriate to permit either party
to introduce additional evidence that might bear on
the constitutional issues. The Supreme Court of Cali
fornia also might conclude that it is appropriate to
74
relieve petitioner of its concession in light of the legal
principles established by this Court’s opinion.
CONCLUSION
Insofar as the judgment of the Supreme Court of
California declares that the Medical School may not
consider the race of applicants for the purpose of
operating a properly administered affirmative action
admissions program, the judgment should be reversed.
Insofar as the judgment orders that respondent be
admitted to the Medical School, the judgment should
be vacated and the case should be remanded for
further proceedings consistent with the views we have
discussed.
Respectfully submitted.
Griffin B . B ell,
Attorney General.
W ade II. McCkee, J r.,
Solicitor General.
D rew S. D ays, III ,
Assistant Attorney General.
L awrence G. W allace,
Deputy Solicitor General.
P rank II. E asterbrook,
Assistant to the Solicitor General.
B rian K. L andsberg,
J essica D unsay S ilver,
Attorneys.
S eptember 1977.
APPEXDIX A
F ederal D om estic A ssist a n c e P rogram s P ro vid ing A ssist a n c e
to R a c ia l M in o r it y G ro ups
Program and
Agency catalogue No.1 Description and budget
Department Com
merce.
Department of
Health, Educa
tion, and Wel
fare.
Minority Business
Enterprise (11.-
S00).
Mental Health
Training Grants
(13.244),
Minority Biomedi
cal Support (13.-
375).
Emergency School
Aid Act—Basic
Grants to Local
Educ. Agencies
(13.525).
Emergency School
Aid Act—Pilot
Programs (13.-
52C).
Emergency School
Aid Act— Special
Programs and
Projects (13.-
529).
Emergency School
Aid Act—Educa
tional Television
(13.530).
Grants to government agencies;
contracts and technical assist
ance to minority businesses to
promote and expand minority
enterprises (est. FY 1977—
$11,478,000).
Grants to public and private in
stitutions for training profes
sionals in area of mental health
and mental illness—includes
minority group projects (est.
FY 1977—$68,263,000).
Grants to higher educational in
stitutions to increase number of
ethic minority faculty, students,
and investigators engaged in
biomedical research (e s t FY
1977—87,783,000).
Grants to elementary and second
ary local educational agencies
to implement plans to eliminate,
reduce, or prevent isolation of
minority group students (est.
FY 1977—$126,S50,000).
Grants to elementary and second
ary local educational agencies
'w ith large minority (or over
50% minority) enrollments, for
implementing plans to elim i
nate, reduce, or prevent isola
tion of minority group students
( e s t FY 1977—832,250,000).
Grants to public or nonprofit pri
vate organizations for programs
to resolve special problems in
communities during school de
segregation, to benefit students,
parents, and faculty ( e s t FY
1977—817,200,000).
Grants to public and nonprofit
private organizations for devel
opment of multiethnic television
programs for elementary and
secondary school children (est.
FY 1977—86,450,000).
See footnotes at end of table.
( 1 a )
2a
Program and
Agency_______ catalogue N o .*______ Description and budget
Emergency School
Aid Act—Special
Programs (13.-
532).
Ethnic Heritage
Studies Program
(13.549).
Special Programs
for the Aging
(13.G33).
Special Programs
for the Aging—
OAA Model Pro
jects (13.634).
Minority Access to
Research Careers
(13.880).
National Science Science Education
Eoundation. Improvement
(47.048).
Small Business Ad- Minority Business
ministration. Development
Procurement As
sistance (59.006).
Minority Vendors
Program
(59.019).
Grants to educational agencies
for programs to reduce, elimi
nate and prevent minority
group isolation and aid children
in overcoming educational dis
advantages of minority group
isolation (est. EY 1977—
$21,500,000).
Grants to public or private non
profit organizations to provide
opportunities for students to
study their own cultural herit
age and that of others (est. FY
1977—$1,800,000).
Grants to states for support of
programs for older persons (es
pecially low income and minor
ity older persons) by planning
and social services (est. FY
1977—$122,000,000).
Grants (contracts) to public or
private nonprofit organizations
for projects w ith new ap
proaches to coordinated health,
social, nnd w elfare services for
older persons—priority given to
minority, limited English-speak
ing, and rural elderly (est. FY
1977—312,000,000).
Grants and research contracts to
assist minority institutions to
train greater numbers of scien
tists and teachers in health-re
lated fields (est. FY 1977—
$173,000).
Grants to organizations and
higher educational institutions
to improve capabilities for sci
ence education and training—
special assistance to higher edu
cational institutions w ith ma
jority black and majority Span
ish-speaking enrollments (est.
FY 1977—330,800,000).
Special services to businesses
owned by disadvantaged (in
cluding minorities) to help
them become independent and
self-sustaining (est. FY 1977—
$3,609,000).
Special services to minority, so
cially- or economically-disad
vantaged businesses to help
them find new business oppor
tunities and identify business
deficiencies (est. FY 1977— not
available).
r ■ T h is inform ation , derived from th e Oflice of M anagem ent an d B udget publica tion 1976 Catalogue,
of Federal Domestic Assistance, does not p u rp o rt to be exhaustive . T h e C atalogue p rovides a lis ting o f
1 020 F edera l program s a n d ac tiv ities w h ich fu rn ish assistance or benefits.
APPEXDIX B
F ederal D o m estic A s sist a n c e P rograms P roviding A ssist a n c e
to P er so ns W h o D o X ot S p e a k F l u e n t E n g l is h
Program and
Agency catalogue No. Description and budget
Department of Billingual Educa-
Health, Educa- tion (13.403).
tion, and Wel
fare.
Emergency School
Aid Act—Bilin
gual Education
Projects (13.528).
Bilingual Voca
tional Training
(13.558).
Special Programs
for the Aging
(OAA) (13.634).
(3 a )
Grants to states for bilingual ed
ucation for non-English speak
ing children or for limited Eng
lish speaking ability children
from low-income fam ilies (est.
FY 1977—390,000,000).
Grants to educational agencies
for bilingual or bicultural pro
grams to help students and
faculty by minimizing cultural
barriers to equal educational
opportunity (est. FY 1977—
$S,600,000).
Grants to educational ngencies for
training of disadvantaged youth
with limited education and
limited English speaking ability
in various semiskilled and
skilled occupations (est. FY
1977—30).
Grants (contracts) to public or
private nonprofit organizations
to develop new health, social,
and welfare services and coor
dination of these services for
the aged (including minority,
limited English-speaking and
rural older persons) (est. FY
1977—312,000,000).____________
245-950— 77------ 7
APPENDIX C
A ffirmative A ction P rograms for S tate and L ocal
Government A gencies
POLICY STATEMENT
The Equal Employment Opportunity Coordinat
ing Council was established by Act of. Congress in
1972, and charged with responsibility for developing
and implementing agreements and policies designed,
among other things, to eliminate conflict and incon
sistency among the agencies of the Federal govern
ment responsible for administering Federal law pro
hibiting discrimination on grounds of race, color, sex,
religion, and national origin. This statement is issued
as an initial response to the requests of a number of
State and local officials for clarification of the Gov
ernment’s policies concerning the role of affirmative
action in the overall equal employment opportunity
program. While the Coordinating Council’s adop
tion of this statement expresses only the views of
the signatory agencies concerning this important sub
ject, the principles set forth below should serve as
policy guidance for other Federal agencies as well.
1. Equal employment opportunity is the law of
the land. In the public sector of our society this
means that all persons, regardless of race, color,
religion, sex, or national origin shall have equal access
to positions in the public service limited only by
their ability to do the job. There is ample evidence
in all sectors of our society that such equal access
(4 a )
5a
frequently has been denied to members of certain
groups because of their sex, racial, or ethnic char
acteristics. The remedy for such past and present dis
crimination is twofold.
On the one hand, vigorous enforcement of the
laws against discrimination is essential. But equally,
and perhaps even more important, are affirmative,
voluntary efforts on the part of public employers
to assure that positions in the public service are
genuinely and equally accessible to qualified persons,
without regard to their sex, racial or ethnic char
acteristics. Without such efforts equal employment
opportunity is no more than a wish. The importance
of voluntary affirmative action on the part of em
ployers is underscored by Title Y II of the Civil
Rights Act of 1964, Executive Order 11246, and re
lated laws and regulations—all of which emphasize
voluntary action to achieve equal employment oppor
tunity.
As with most management objectives, a systematic
plan based on sound organizational analysis and prob
lem identification is crucial to the accomplishment of
affirmative action objectives. For this reason, the
Council urges all State and local government to de
velop and implement results oriented affirmative ac
tion plans which deal with the problems so identified.
The following paragraphs are intended to assist
State and local governments by illustrating the kinds
of analyses and activities which may be appropriate
for a public employer’s voluntary affirmative action
plan. This statement does not address remedies im
posed after a finding of unlawful discrimination.
2. Voluntary affirmative action to assure equal em
ployment opportunity is appropriate at any stage
of the employment process. The first step in the con-
6a
struction of any affirmative action plan should, be an
analysis of the employer’s work force to determine
whether percentages of sex, race or ethnic groups in
individual job classifications are substantially similar
to the percentages of those groups available in the
work force in the relevant job market who possess
the basic job related qualifications.
When substantial disparities are found through
such analyses, each element of the overall selection
process should be examined to determine which ele
ments operate to exclude persons on the basis of sex,
race, or ethnic group. Such elements include, but are
not limited to, recruitment, testing, ranking, certi
fication, interview, recommendations for selection,
hiring, promotion, etc. The examination of each ele
ment of the selection process should at a minimum
include a determination of its validity in predicting
job performance.
3. When an employer has reason to believe that
its selection procedures have the exclusionary effect
described in paragraph 2 above, it should initiate
affirmative steps to remedy the situation. Such steps,
which in design and execution may be race, color,
sex or ethnic “conscious,” include, but are not limited
to, the following:
The establishment of a long term goal, and short
range, interim goals and timetables for the specific
job classifications, all of which should take into ac
count the availability of basically qualified persons
in the relevant job market;
A recruitment program designed to attract quali
fied members of the group in question;
A systematic effort to organize work and re-design
jobs in ways that provide opportunities for persons
I 7a
lacking “journeyman” level knowledge or skills to
enter and, with appropriate training, to progress in a
■career field;
Revamping selection instruments or procedures
which have not yet been validated in order to reduce
•or eliminate exclusionary effects on particular groups
in particular job classifications;
The initiation of measures designed to assure that
members of the affected group who are qualified to
perform the job are included within the pool of per
sons from which the selecting official makes the
■selection;
A systematic effort to provide career advancement
training, both classroom and on-the-job, to employees
locked into dead end jobs; and
The establishment of a system for regularly moni
toring the effectiveness of the particular affirmative
action program, and procedures for making timely
•adjustments in this program where effectiveness is
not demonstrated.
4. The goal of any affirmative action plan shoulfi
be achievement of genuine equal employment oppor
tunity for all qualified persons. Selection under such
plans should be based upon the ability of the appli
cant (s) to do the work. Such plans should not re
quire the selection of the unqualified, or the unneeded,
nor should they require the selection of persons on
the basis of race, color, sex, religion or natural origin.
Moreover, while the Council believes that this state
ment should serve to assist State and local employers,
as well as Federal agencies, it recognizes that affirma
tive action cannot be viewed as a standardized pro
gram which must be accomplished in the same way at
all times in all places.
8a
Accordingly, the Council has not attempted to set
forth here either the minimum or maximum voluntary
steps that employers may take to deal with their re
spective situations. Rather tlie Council recognizes that
under applicable authorities, State and local employ
ers have flexibility to formulate affirmative action
plans that are best suited to their particular situa
tions. In this manner, the Council believes that affirm
ative action programs will best serve the goals of
equal employment opportunity.
Respectfully submitted,
H arold R. T yler, Jr.,
Deputy Attorney General and Chairman of
the Equal Employment Coordinating Coun
cil.
M ichael II. Moskow,
Under Secretary of Labor.
E thel B ent W alsh,
Acting Chairman, Equal Employment Oppor
tunity Commission.
R obert E. H ampton,
Chairman, Civil Service Commission.
A rthur E. F lemming,
Chairman, Commission on Civil Rights.
Because of its equal employment opportunity re
sponsibilities under the State and Local Government
Fiscal Assistance Act of 1972 (the revenue sharing
act), the Department of Treasury was invited to
participate in the formulation of this policy state
ment; and it concurs and joins in the adoption of
this policy statement.
Done, this 26th day of August 1976.
R ichard A lbrecht,
General Counsel, Department of the Treasury.
APPENDIX D
Memorandum—P ermissible Goals and T imetables
in S tate and L ocal Government E mployment
P ractices
This Administration has, since September 1969, rec
ognized that goals and timetables are in appropriate
circumstances a proper means for helping to im
plement the nation’s commitments to equal employ
ment opportunities through affirmative action pro
grams. On the other hand, the concepts of quotas
and preferential treatment based on race, color, na
tional origin, religion and sex are contrary to the
principles of our laws, and have been expressly re
jected by this Administration.
Title Y II of the Civil Rights Act of 1964, as
amended by the Equal Employment Opportunity Act
of 1972, conferred on the Justice Department and
the Equal Employment Opportunity Commission en
forcement responsibilities for eliminating discrimina
tory employment practices based upon race, color,
national origin, religion, and sex by state and local
government employers as set forth in that Act. In
addition, under the Intergovernmental Personnel
Act and the merit standards statutes, the Civil Serv
ice Commission has an obligation to attempt to move
state and local governments toward personnel prac
tices which operate on a merit basis. The Depart
ment of Labor and other Executive Branch agencies
have responsibilities in the area of equal employmen
opportunities as it affects state and local government
( 9 a )
c-
t-
10a
■employers. This memorandum addresses the question
of how the agencies in the Executive Branch (e.g.,
CSC, EEOC, Justice, Labor and other Federal agen
cies having equal employment opportunity respon
sibilities) should act to implement the distinction be
tween proper goals and timetables on the one hand,
■and impermissible quotas and preferences on the
other, with due regard for the merit selection prin
ciples which many states and local governments are
obliged to follow, and which some state and local
government employers do not properly follow with
regard to equal employment opportunities.
All of the agencies agree that there is no conflict
between a true merit selection system and equal em
ployment opportunities laws—because each requires
nondiscrimination in selection, hiring, promotion,
transfer and layoff, and each requires that such deci
sions be based upon the person’s ability and merit,
not on the basis of race, color, national origin, religion
or sex. The problems arise when an employer pays
only lip service to the concept of merit selection, but
in fact follows employment practices which discrimi
nate on the basis of race, color, etc.
All of the agencies recognize that goals and time
tables are appropriate as a device to help measure
progress in remedying discrimination. All agencies
recognize that where an individual person has been
found to be the victim of an unlawful employment
practice as defined in the Act he or she should be
given “priority consideration” for the next expected
vacancy, regardles of his relative “ability ranking”
at.the time the new hire is made—this because absent
the act of discrimination, he or she would be on the
job. All agencies also recognize that it may be appro
priate for a court to order an employer to make a
11a
good faith, nondiscriminatory effort to meet goals and
timetables where a pattern of discriminatory employ
ment practices has been found.
All agencies recognize the basic distinctions between
permissible goals on the one hand and impermissible
quotas on the other. Quota systems hi the past have
been used hi other contexts as a quantified limitation,
the piurpose of which is exclusion, but this is not its
sole definition. A quota system, applied in the employ
ment context, would impose a fixed number or per
centage which must be attahied, or which cannot be-
exceeded; the crucial consideration would be whether
the mandatory numbers of persons have been hired
or promoted. Under such a quota system, that number
would be fixed to reflect the piopmlation in the area,,
or some other numerical base, regardless of the num
ber of potential applicants who meet necessary quali
fications. I f the employer failed, he would be subject
to sanction. I t would be no defense that the quota
may have been unrealistic to start with, that he had
insufficient vacancies, or that there were not enough
qualified applicants, although he tried in good faith
to obtain them through appropriate recruitment
methods.
Any system which requires that considerations of
relative abilities and qualifications be subordinated
to considerations of race, religion, sex or national
origin in determining who is to be hired, promoted,,
etc., in order to achieve a certain numerical position
has the attributes of a quota system which is deemed,
to be impermissible under the standards set forth
herein.
A goal, on the other hand, is a numerical objective,,
fixed realistically in terms of the number of vacancies
expected, and the number of qualified applicants avail-
13a
able in the relevant job market. Thus, if through no
fault of the employer, he has fewer vacancies than
expected, he is not subject to sanction, because he is
not expected to displace existing employees or to hire
unneeded employees to meet his goal. Similarly, if he
has demonstrated every good faith effort to include
persons from the group which was the object of dis
crimination into the group being considered for selec
tion, but has been unable to do so in sufficient num
bers to meet his goal, he is not subject to sanction.
Under a system of goals, therefore, an employer is
never required to hire a person who does not have
qualifications needed to perform the job successfully;
and an employer is never required to hire such an un
qualified person in preference to another applicant
who is qualified; nor is an employer required to hire
a less qualified person in preference to a better quali
fied person, provided that the qualifications used to
make such relative judgments realistically measure
the person’s ability to do the job in question, or other
jobs to which he is likely to progress. The terms “less
qualified” and “better qualified” as used in this memo
randum are not intended to distinguish among per
sons who are substantially equally well qualified in
terms of being able to perform the job successfully.
Unlike quotas, therefore, which may call for a pref
erence for the unqualified over the qualified, or of the
less qualified over the better qualified to meet the
numerical requirement, a goal recognizes that persons
are to be judged on individual ability, and therefore
is consistent with the principles of merit hiring.
In some job classifications, in which the newly
hired person learns on the job the skills required,
and where there is no extensive education, expe
13a
rience or training required as prerequisite to success
ful job performance, many applicants will possess the
necessary basic qualifications to perform the job.
While determinations of relative ability should be
made to accord with required merit principles, where
there has been a history of unlawful discrimination, if
goals are set on the basis of expected vacancies and
anticipated availability of skills in the market place,
an employer should be expected to meet the goals if
there is an adequate pool of qualified applicants from
the discriminated against group from which to make
selections; and if the employer does not meet the
goal, he has the obligation to justify his failure.
Similarly, where an employer has purported to
follow merit principles, but has utilized selection pro
cedures which are in fact discriminatory and have
not been shown validly to measure or to predict job
success (see, Griggs v. Duke Power Go., [3 EPD
8137] 401 U.S. 424), there frequently is no valid
basis presently available for ranking applicants ob
jectively in order of the probabilities of success on the
job. In such circumstances, all agencies agree that a
public employer will be expected to devise or borrow
a selection procedure which is as objective as possible
and is likely to be proved valid and is not likely to
perpetuate the effects of past discrimination; and to
meet those goals which have been set on a vacancy
basis. The selection procedure should be as objective
and job related as possible, but until it has been
shown to be valid for that specific purpose, it must
be recognized that rank ordering does not necessarily
indicate who will in fact do better on the job. Accord
ingly, if the goal is not being met because of the in
terim selection procedure, the procedure and other
\
\ .
14a
aspects of the affirmative action program may have
to be revised. All agencies agree that use of such
goals does not and should not require an employer
to select on the basis of race, national origin, or sex
a less qualified person over a person who is better
qualified by objective and valid procedures. Where
such procedures are not being utilized, valid selection
procedures to determine who will in fact do better on
the job should be established as soon as feasible in
accordance with the principles set forth in para
graphs 2 and 5 below.
With the foregoing in mind, the agencies agree that
the following principles should be followed:
1. Whenever it is appropriate to establish goals,
the goals and timetables should take into account
anticipated vacancies and the availability of skills
in the market place from which employees should
be drawn. In addition, where unlawful discrimina
tion by the employer has been established, the cor
rective action program, including the recruiting and
advertising obligations and the short range hiring
goals, should also take into account the need to cor
rect the present effects of the employer’s past dis
criminatory practices.
2. The goals should be reached through such re
cruiting and advertising efforts as are necessary and
appropriate, and the selection of persons only from
amongst those who are qualified. A goal, unlike a
quota, does not require the hiring of persons when
there are no vacancies, nor does it require the hiring
of a person who is less likely to do well on the job
(“ less qualified”) over a person more likely to do
well on the job (“ better qualified”), under valid se
lection procedures. When the standards for deter
15a
mining qualifications are invalid and not predictive
of job success, valid selection procedures should be
developed as soon as feasible. Where an employer
has followed exclusionary practices, however, and has
made little or no progress in eliminating the effects
of its past discriminatory practices, the selection
standards it proposes to utilize in determining wffio
is “ qualified,” or “better qualified” will be exam
ined with care to assure that they are in fact valid
for such purposes and do not perpetuate the effects
of the employer’s past discrimination (i.e., which
have‘as little discriminatory impact as possible under
the circumstances) and do not raise artificial or un
necessary barriers.
3. In no event does a goal require that an employer
must in all circumstances hire a specified number of
persons, because such a goal would in fact be a quota.
I t is, however, appropriate to ask a court to impose
goals and timetables, including hiring goals, on an
employer who has engaged in racial or ethnic exclu
sion, or other unconstitutional or unlawful employ
ment practices. The goals we seek in court, like those
accepted voluntarily by employers, are subject to
the limitations set forth in this memorandum.
4. As a general matter, relief should be provided
to those persons who have been adversely affected
as a consequence of the employer’s unlawfully dis
criminatory practices. All agencies will continue to
seek insofar as feasible to have persons who can show
that they were injured by such practices restored to
the position they would be in but for the unlawful
conduct. In addition, all agencies will seek to have
those persons who have been excluded from considera
tion or employment because of such discriminatory
practices allowed to compete for future vacancies on
/
16 a
tliG basis of qualifications and standards no more
severe than those utilized by the employer in selecting
from the advantaged groups, unless the increased
standards are required by business necessity. Such
relief will be sought to prevent the erection of un
necessary barriers to equal employment opportunities.
Such relief will not preclude a public employer from
adopting merit standards; nor will it preclude such
an employer who has previously used invalid selection
standards or procedures from developing and using
valid, job related selection standards and procedures
as contemplated by paragraphs 2 and 5 of this
memorandum.
5. Where an employer has utilized a selection device
which is itself unlawfully discriminatory, relief should
be sought to prohibit the use of that and similar selec
tion devices (i.e., devices which measure the same
kinds of things) together with the development of an
appropriate affirmative action plan which may include
goals and timetables in accord with the principles set
forth in this paper. In addition, we will ask the courts
to permit the employer to select (or develop) and
validate a job related selection procedure which will
facilitate selections on the basis of relative ability to
do the job. The speed with which such new selection
devices can and should be developed and validated
depends upon the facts and circumstances of each
case.
Agencies with equal employment opportunity re
sponsibilities should take actions in accordance with
the principles outlined in this memorandum in order
to assure a coordinated approach within the Executive
Branch to eliminate discriminatory employment prac
tices and their consequences.
U.S . GO VERN MEN T PRINTING O FF IC E : 1977