REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE

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Argument of Archibald Cox

Chief Justice Warren E. Burger: First case on today's calendar is number 76-811, Regents of University of California against Bakke.

Mr. Cox, you may proceed whenever you're ready.

Mr. Cox: Mr. Chief Justice, may it please the Court.

This case here on certiorari to the Supreme Court of California presents a single vital question.

Whether the State -- whether a state university which is forced by limited resources to select a relatively smaller number of students from a much larger number of well-qualified applicants is free voluntarily to take into account the fact that a qualified applicant is black, Chicano, or Asian, or Native American in order to increase the number of qualified members of those minority groups trained for the educated professions and participating individual, professions from which minorities were long excluded because of generations of pervasive racial discrimination.

The answer which the court gives was determined perhaps for decades whether members of those minorities are to have the kind of meaningful access to higher education in the profession which the universities have accorded them in recent years ought are to be reduced to the trivial numbers which they were prior to the adoption of minority admissions programs.

The three facts realities which dominated the situation that the Medical School of Davis had before it and which I think this control the decision of this Court.

The first is that the number of qualified applicants for the nation's professional schools is vastly greater than the number of places available.

That is a fact and an inescapable fact.

In 1975, 1976, for example, there were roughly 30,000 qualified applicants for admission to medical school, a much greater number of actual applicants and there were only about 14,000 places.

At Davis, there were 25 applicants have received in 1973.

In 1974, the ratio was risen to 37 to 1.

So the problem is one of selection among qualified applicants, not of ability to gain from a professional education.

The second fact which is no need for me to elaborate but it is a fact for generation's racial discrimination in the United States, much of it stimulated by unconstitutional state action.

Isolated certain minorities condemn them to unfairer education and shut them out of the most important and satisfying aspects of American life including higher education and the profession.

And the greatest problem is the Carnegie on Higher Education noted more than 10 years ago.

The greatest problem in achieving racial justice was to draw those minorities into the professions that place on important part in our national life.

And then there's one third factor.

There is no racially blind method of selection which will enroll today more than a trickle of minority students in the nation's colleges and professions.

These are the realities which the University of California, Davis Medical School faced in 1968.

In which I say I think the Court must face when it comes to its decision.

Until 1969, the applicants of Davis as it most of the medical schools were chosen on the basis of scores on the medical aptitude test, their college grades, and other personal experiences and qualifications as revealed in the application.

The process excluded virtually almost all members of minority groups.

Even when they were fully qualified for places because there scores by enlarge were lower on the cognitive test and in college grade point averages.

Alright, there were no black students and no Chicanos in the class entering Davis in 1968.

If one puts to one side the predominately black medical schools, Howard and Meharry lasted off 1%, eight-tenths of 1% of all medical students in the United States were black in the year 1968, 1969.

In 1969, the faculty at Davis concluded the drawing in the medical college, qualified members of minorities, minorities long victimized by racial discrimination would yield important educational professional and social benefits.

It then chose one variant of the only possible method of increasing number.

It established what came to be known as the Task Force Program following the name of then program established by the Association of American Medical Colleges, which would select there were only 50 in the entering class at that time, which would select eight educationally but fully qualified -- select eight educationally or economically disadvantaged but fully qualified minority students for inclusion among the 52 in the entering class.

Justice Lewis F. Powell: Mr. Cox, is there something in the record indicating who -- who proposed or adopted the Task Force Program?

Mr. Cox: It's indicated then it was adopted by the faculty in the school.

It was voted by the faculty.

That appears from Dean Lowrey's testimony and it also appeared --

Justice Lewis F. Powell: But he wasn't -- he wasn't there then, was he?

Mr. Cox: No.

I guess he must have learned when he came somewhat later.

There's nothing -- there nothing more than his testimony gained and -- I may say, I have seen the minutes but --

Justice Lewis F. Powell: Is there anything in the record indicating the approval of the Regents other than the fact they're defendant – they are defendant --

Mr. Cox: No, because the Regents had delegated to each faculty of each school, the responsibility for admissions.

Justice Lewis F. Powell: Thank you.

Mr. Cox: So, this was left to the different colleges and very wisely, I think because autonomous institutions, each trying to solve this problem in their own way.

You may give all of us the benefit of the experience trial and error, creativity.

That's the virtue of not constitutionalizing the problems in this kind.

The number was increased to 16 when the size of the class was increased to a 100.

And it was the -- this step was taken as part of the movement led by the Association of American Medical Colleges which brought the number of black students studying at predominantly white medical schools from less than 1% to more than 5%, from 211 to 3,000 in a period of 10 years.

I want to emphasize that the designation in 16 places was not a quota at least as I review is that were.

Certainly it was not a quota in the older sense of an arbitrary limit put on the number of members of the non-popular group who would be the admitted to an institution which was looking down its nose at.

Unknown Speaker: It did put a limit on the number of white people, isn't it?

Mr. Cox: I think that it limited the number of non-minority and therefore essentially white, yes, but there two things to be said about that.

One is that this was not pointing the finger at a group which had been marked as inferior in any sense and it was undifferentiated that operated against a wide variety of people.

So I think it was not stigmatizing in the sense the (Inaudible) was stigmatizing in any way.

Unknown Speaker: But it did put a limit on their number?

Mr. Cox: It --

Unknown Speaker: In each class?

Mr. Cox: I'm sorry.

Unknown Speaker: It did put a limit on the number of not minority people in each class.

Mr. Cox: It did put a limit.

No question about that and I don't mean to evade that and I direct myself to it a little later if I may?

Justice Lewis F. Powell: Do you agree then that there was a quota of 84?

Mr. Cox: Well, I would deny that it was the quota.

We agree that there were 16 places set aside before qualified disadvantaged minority student.

Now, if that number -- if setting aside the number, the amount of result of --

Justice Lewis F. Powell: Now, the question is not whether the 16 is a quota.

The question is whether the 84 is a quota?

What is the answer to that?

Mr. Cox: I would say -- I would say that neither is properly defined as a quota.

Justice Lewis F. Powell: And then why not?

Mr. Cox: Because in the first place -- because of my understanding in the meaning of quota and I think the decisive things are the facts.

And the operative facts are this is not something imposed from outside as the quotas are in the employment or the targets are unemployment sometime today.

It was not a limit on the number of minority students.

Other minority students were in fact accepted for the regular admissions program.

It was not a guarantee of a minimum number of minority student because all of them had to pay him the testimony is that all of them were fully qualified, alright.

It did say that if there are 16 qualified minority students and were also disadvantage.

Then 16 places shall be failed by them and only 84 places will be available to others.

Justice John Paul Stevens: Mr. Cox --

Mr. Cox: And so that --

Justice John Paul Stevens: Mr. Cox, the facts are not in dispute the -- does it really matter what we call as program?

Mr. Cox: No.

I was -- I quite agree with Mr. Justice.

I was trying to emphasize that the facts here have none of the aspect that there are not of the facts that lead us to think that quota as a bad word.

What we call this doesn't matter and if we call it a quota, knowing the facts and deciding according the operative facts and not influence by the semantic couldn't matter less.

Some people say this was a target.

I prefer not to call it either because target is taken off kind of thing.

But I would emphasis that it doesn't point the finger at any group.

It doesn't say to any group you are inferior.

It doesn't promise taking people regardless of their qualifications, regardless of what they promise society and promise the school.

I don't know what qualities they have and I think those things ended it is not forced that was really a decision by the school as to how much of its assets.

What part of its assets?

It would allocate to the purposes that it felt were being fulfilled of -- by having minorities in the student body and increasing the number of minorities in the profession.

Justice Stevens let me -- let us suppose that the student must not -- that the school was much concerned by the lack of qualified general practitioners in Northern California.

As indeed it was, but I want to exaggerate the illustration a little bit and they told the admissions committee, get people that come from rural communities if they're qualified and to express the intention of going back there.

And the dean of admissions might well say, well, how much importance -- how much importance could give this?

And the members of the faculty might say by vote her otherwise we think it's terribly important.

As long as they're qualified try and get 10 in the group.

I don't think I would say there was a quota of 90 students or others.

And I think this while it involves race, of course and that's why we're here, or color really is essentially the same thing.

The decision of the University was that there are social purposes.

Purposes aimed into the end of eliminating racial injustice in this country and in bringing equal -- equality of opportunity.

There will be purposes served by including minority student.

Well, how important you think it is?

Justice Harry A. Blackmun: Mr. Cox, is it the same --

Mr. Cox: We think it's this important?

Justice Harry A. Blackmun: Mr. Cox --

Mr. Cox: And that's the significance of --

Justice Harry A. Blackmun: Mr. Cox, is it the same thing as an athletic scholarship?

Mr. Cox: Well, I --

Justice Harry A. Blackmun: So many places reserve for athletic scholarships?

Mr. Cox: In the -- I don't like to liken it to that in terms of its importance but I think that there a number of places that may be set aside for an institutions of different aims.

And the aim of some institutions does seem to be -- to have athletic prowess.

So that in that sense, this is a choice made to promote the schools, the faculty's choice of educational, the aim of mutual and professional objectives so I think there is a parallel.

Justice John Paul Stevens: Yes, it's the aim of most institutions, isn't it?

Not just some?

Mr. Cox: Yes.

But they have of athletic?

Justice John Paul Stevens: Yes.

Mr. Cox: Well, I come from Harvard sir.

I don't know whether it's our aim but we don't do very well.

Justice John Paul Stevens: But I can remember the time when -- Mr. Cox, I can remember the time when you did if --

Mr. Cox: Yes.

Yes, you're quite right.

Well, --

Chief Justice Warren E. Burger: Mr. Cox --

Mr. Cox: Maybe I better stop.

I can almost too.

Chief Justice Warren E. Burger: Mr. Cox, along that line is there -- I suppose athletic scholarships are largely confined if not entirely confined to undergraduates schools largely perhaps.

Is there a difference between the problems that you're presenting with respect to undergraduate schools and professional graduate schools?

Mr. Cox: Well, I point it of course that was -- it's because the purpose of the athletic and social purposes of an undergraduate school are different for those of professional schools that I'm frank from pressing the analogy too far.

Although, I think it's logical accurate and that it helps ones thinking.

Well, the proofs of the objectives of undergraduate education are somewhat broader, somewhat harder to define.

On the other hand, it's clear to me that the inclusion of minorities and undergraduate college may be at least as important as that a professional school.

And the date of course they're got to get to professional school they have to be there.

But I think when -- I think one finds that the objectives of these programs apply in large part to undergraduate colleges as well as professional schools, certainly the objective of improving education through greater diversity or is perhaps even more important than an undergraduate school that it is in professional school.

But I wouldn't minimize its importance of the professional school and I would emphasize its important when it comes to membership in the professions, so that the professions will be aware of all segments to the society.

I think the objective of breaking down isolation which is one of the greatest problems of achieving racial justice in this country is served by including minorities I would say about equally involved.

The objective that impresses itself on my mind, partly because Dean Lowrey testified it, and partly because I am at least in part an educator is the importance of including young men and women at both undergraduate colleges and the medical schools, so that the other younger boys and girls may see, yes, it is possible for a black to go to University of Minnesota or to go Harvard or Yale.

I know Johnny down the street and I know Sammy's father, he became a lawyer and John's father became a doctor.

This is essential if we're ever going to give true equality in a factual sense to people because the existence or non-existence of opportunities and surely we all know shapes people's aspirations when they're very young, it shapes the way they behave, it shapes in a most pedagogical sense, I suspect whether they do or don't read a book in the afternoon whether they do or don't read at school.(Voice Overlap)

So, I think all these applied to both Mr. Chief Justice very strongly.

Justice William H. Rehnquist: Mr. Cox, what if Davis Medical School had decided that since the population of doctors in the -- among minority population of doctors in California was so small, instead of setting aside 16 seats for minority doctors, they would set aside 50 seats until that balance were redress and the minority population of doctors equal that of the population as a whole, would that be any more infirm than the program that Davis has?

Mr. Cox: Well, I think my answer is this.

It's one which I draw upon Judge Hastie for an excellent essay he wrote on this subject.

That so long as the numbers of chosen, he said with and they're shown to be reasonably adapted to the social goals.

And I'm thinking of the one you mentioned Justice Rehnquist; then there is no reason to condemn a program because of the particular number chosen.

I would say that perhaps there reas -- I don't think I have to press for a reasonably related test.

I think that here there is a much better showing than that.

I would say that as the number goes up, the danger of invidiousness or the danger that this is being done not social purposes but to favor one group as against another group, the risk if you will of a finding of an invidious purpose to discriminate against is greater and therefore I think it's a harder case but I would have to put the particular school in the context of old schools.

There are programs of which are designed for example to train Indians, to go back and teach at Indian reservations and nobody else is talking those programs.

I don't think it's unconstitutional when you see it the total context.

But I think that as the number goes up it raises this dangers, fears, and the possibility of an adverse finding on what might be the factually dispositive question of intent.

Justice Lewis F. Powell: Mr. Cox, along the same line of discussion, would you relate the number in any way to the population and if so, the population of the nation, the state, the city or to --

Mr. Cox: Well, I -- I've -- the number 16 here is not in any way linked to population in California.

Justice Lewis F. Powell: 23% I think of --

Mr. Cox: And this was 16 --

Justice Lewis F. Powell: Yes.

Mr. Cox: Oh, I think it to -- as the number, I think I would only say as the number gets higher.

I think that it's undesirable to have the number late to population.

I'd be quite frank to say that I think one of the things which causes all us concern about this programs is a danger that they will give some -- give rise to some notion of group entitlement to numbers regardless either of the ability of the individual or of which not always related to inability -- ability in the narrow sense, all of their potential contribution to society.

And I think that if the program were begin to slide over in that direction or I would first as a faculty member criticizing and opposing as a constitutional lawyer and the farther it went the more doubts I would have.

But I think it's quite clear that this program was not of that character and in fact of course for speaking in what's going to happen to educational all over the country.

In fact, the numbers have not come anywhere but minorities submitted to professional schools have not come anywhere near their actual percentage in the population.

Justice Harry A. Blackmun: Mr. Cox, is it relevant do you think to the question we have to decide how the benchmark rating system operates at Davis in the two programs?

Mr. Cox: No, I think it is not at all relevant.

Justice Harry A. Blackmun: Is there anything in the record which tells us exactly how race is taken into account in the benchmark ratings in the special --

Mr. Cox: There's nothing that tells how it is taken into account.

In the benchmark ratings, I would infer from the bench, actual benchmark ratings that it was not taken into account in the benchmark ratings at all.

Justice Harry A. Blackmun: In the special program?

Mr. Cox: That the -- nothing was added to a benchmark rating because one was a member of a minority.

Justice Harry A. Blackmun: Well, does that suggest that the benchmark ratings in the two programs are comparable?

Among the --

Mr. Cox: They may -- I -- there's neither -- there's nothing in the record about that if I understood your question.

That is to say, there's nothing to show whether people were being rated on the same standards when they were in the Task Force Program or when they were in general pool.

It's in the past, I don't know whether anyone could ever find out quite frankly, --

Chief Justice Warren E. Burger: Mr. Cox --

Mr. Cox: Yes.

Chief Justice Warren E. Burger: -- the 23% that or if you haven't finished answering Mr. Justice Brennan, please --

Mr. Cox: I was going on --

Chief Justice Warren E. Burger: Go ahead.

Mr. Cox: -- just little further.

Alright.

There wasn't any occasion to put them on the same scale.

Because the -- if you were qualified minority and disadvantage then you are eligible for one of the 16 places and there was no occasion for you to be compared with anyone in the general pool.

Now if I may -- I wanted to go on just another step in that answer.

Chief Justice Warren E. Burger: Please, go ahead.

Mr. Cox: It is fair to say Mr. Justice and I don't want to – I don't want to slide away from the fact.

The Task Force Program reduced the opportunity of a non-disadvantaged, non-minority applicant who was someone near the borderline or below it to get into Davis because there were certain number of places which were allocated for this purpose just as a certain number of places might be allocated for people who would deliver medical services as general practitioners in the minority area in a rural area.

The other thing I was going to say and then I'm through Mr. Chief Justice is that while it is true that Mr. Bakke and some others on the conventional standards for admission would be ranked above the minority applicant.

I want to emphasize that in my judgment and I think in fact that does not justify saying that the better, generally better qualified people are excluded to make room for generally less qualified people.

And nothing that chose would ask in the first two years of medical school of the grade point averages will make the minority students, poor medical students and still less to show that it makes them poorer doctors or poorer citizens or poorer people.

Its quite clear that for some of the things that a medical school wishes to accomplish and this medical school wish to accomplish that the minority applicant they have qualities to there superior to those of his classmate who is not minority.

You certainly would be more effective in bringing it home to the young Chicano that he too may become a doctor.

He too may attend graduate school.

He may be far more likely to come back to such a community to practice medicine or his native, forgive me, --

Chief Justice Warren E. Burger: Mr. Justice Powell referred to a figure of 23% minority does that conclude Orientals in California?

Mr. Cox: I think it does, yes.

Chief Justice Warren E. Burger: It is there -- is there anything -- is there specific finding in this record that Orientals as one identifiable group have been disadvantaged?

Mr. Cox: Well, I think that the decisions of this Court shall perhaps better than anything else that they have been the victim of the jury discrimination over the years.

Chief Justice Warren E. Burger: And what particular holdings do you refer to that?

Mr. Cox: Well, I had -- I had in mind to Oyama, I think that's most known.

It's not the most recent case but Takahashi is such a case.

They go back to Yick Wo and I'm sure there's three or four more Your Honor will think off quickly.

Chief Justice Warren E. Burger: In terms of the -- In terms of the professions Mr. Cox, is there anything in this record to show that there are nonetheless substantial number of Orientals in medicine and teaching in the law?

Mr. Cox: There are no --

Chief Justice Warren E. Burger: Probably hire them and in any of the other categories.

Mr. Cox: I don't think there any figures in the record and there are very few figures on minority participation in the professions published except with the respect to black doctors and black medical students.

The others, there's submitting full figures on Chicanos but the others are various gathered, and they not --

Justice Lewis F. Powell: Mr. Cox, may I ask you a question of the trial court found a violation of Title VI of the 1964 Civil Rights Act.

Do you think we have to consider the Title VI question before getting to the constitutional question?

Mr. Cox: No, because the Supreme Court of California ruled only on the federal constitution and I would think the other questions were not before this Court.

Justice Lewis F. Powell: Do you think it's not before the Court even though the trial court made a finding?

Mr. Cox: I think that the trial court's ruling has no more importance within a potential ground for state ground or here statutory ground for decision that the plaintiff urges which is ruled out in anything.

Justice Lewis F. Powell: Two of the amicus argued -- two of the amicus argue the Title VI -- Title VI question you know.

Mr. Cox: I realize they do but it wasn't -- it wasn't included in any of the questions presented or it wasn't --

Justice Lewis F. Powell: Do you think is it necessary when a ruling one way would support the judgment below?

Mr. Cox: Well, I believe the court has indicated that it is necessary for it to be raise in the --

Justice Lewis F. Powell: Well, couldn't the respondent – couldn't the respondent urge it to support the judgment?

Mr. Cox: My understanding is that the -- while that was the earlier role that the Court has recently change and indicated that the respondent cannot support an additional ground which is not been brought to the court's attention at the time of the petition.

Justice Harry A. Blackmun: I'd be interested in that case if you have a citation.

Unknown Speaker: He has it.

(Inaudible)

Mr. Cox: I don't have it on the top my -- but I may be mistaken.

I was familiar with the older rule but was corrected Mr. Justice and I'm repeating to correct that the --

Justice Potter Stewart: Was it clear on the record that the -- this institution is within the coverage of Title VI?

Mr. Cox: All medical schools get grants including one in effect grants per student.

So we can't seriously deny it.

I don't think that it was proved in the record but it is a fact.

Justice Harry A. Blackmun: There's a finding to that effect.

Mr. Cox: It's not -- it's in the respondent of course doesn't press this argument here.

And there are number of questions, Mr. Justice, lurking if this is to be explored.

For example there's some question whether an individual may sue under Title VI.

There's a decision of the Seventh Circuit not under Title VI but under an analogous situation dealing with discrimination against women holding that an individual cannot sue and it would seem by analogy to be up here.

Neither there a lot of points that haven't --

Justice William H. Rehnquist: Mr. Cox --

Mr. Cox: -- been adequately covered because we didn't think it was in the case.

Justice William H. Rehnquist: Neither not -- neither may not be a difference in fed -- whether we're reviewing a federal court decision and a state court decision as to whether the statutory question should be decided by us, 1257 just gives us jurisdiction over a federal question in which a decision of the highest court of a status been had; whereas our jurisdiction on certiorari review Courts of Appeals judgment as anything in the Court of Appeals.

Mr. Cox: It could be that the -- I must plead inability to assist that just by later letter Mr. Justice.

I'm not -- I have this case on the top --

Justice Byron R. White: But do you perhaps you know whether the Title VI question was presented to the California Supreme Court --

Mr. Cox: It was pleaded.

It was pleaded.

Justice Byron R. White: Well, to the -- in the California Supreme Court, was it argued in there?

Mr. Cox: Yes.

Well, the briefs do in composite very briefly.

Justice Byron R. White: It was presented but just not decided.

Mr. Cox: That is correct and it would remain like the state ground.

It would remain open on remand.

When I say like the state ground the results of fine -- a ruling by the trial court.

If there was a violation of the California Equal Protection Clause and that of course would remain open.

If this we hope this case reverses and depends.

That's -- that's always true of undecided state questions on which the respondent may hope to retain his judgment.

Justice John Paul Stevens: May I go back --

Mr. Cox: Yes, Mr. Justice.

Justice John Paul Stevens: -- Mr. Cox to what it was our colloquy about benchmark ratings, do I now understand that the -- your submission is that in both programs the benchmark ratings were only a measure of qualifications and that none at least in the special program was loaded as for the purpose of compensating before a past discrimination?

Mr. Cox: That is my understanding --

Justice John Paul Stevens: There's a record --

Mr. Cox: But I do not wish to mislead Your Honor and say that that clearly appears on the record anyway.

But it should push it in the logic of the situation.

Remember that the task force applicants were being considered by the Task Force Subcommittee.

Incidentally, it's the majority of the faculty were not minority.

There was one minority there.

Its function was to admit up to 16 qualified minority and educationally are disadvantaged applicants.

It wasn't comparing them -- it wasn't charge with comparing them with anyone else and therefore the benchmarks it put on them were only for the purpose of comparing them with each other.

Justice John Paul Stevens: And so as it operated.

It had the effect of someone with a higher benchmark rating in the regular program, losing a place?

Mr. Cox: Yes, but whether that -- it's certainly yes, as the numbers were scored whether in fact the numbers are comparable, I don't know.

I do want to stress that as we see the case.

This is not a matter of a contest to be judge according to certain standards of performance on grades or a price to be awarded that the institution has important of broader educational professional and social purposes.

So that for purposes of all of these.

It may be more important to have a qualified member of a minority there.

That it is to have somebody whose benchmark was higher and this is the kind of judgment that has to be made.

I would like to direct my attention, if I may, to one important point and that's again the significance of the number 16.

We submit first that the Fourteenth Amendment does not outlaw race-conscious programs where there is no invidious purpose or intent where they are aimed at offsetting the consequences of a -- our long tragic history of discrimination and achieving greater racial equity.

And we think that these --

Justice Harry A. Blackmun: Mr. Cox, may I interrupt you with question that's always troubled me.

Is the use of the term invidious which have all has difficulty really understanding? You suggested in response to Mr. Justice Rehnquist that the number were 50 rather than 16.

They'll be a greater risk of a finding of invidious purpose.

How does one -- how does a judge decide when to make such finding?

Mr. Cox: Well, I think he has to consider the all the facts.

They were most recently laid out in Justice Powell's opinion in the Arlington Heights case.

The sort of thing that he thought the court should consider.

If Your Honor is asking me what do I mean by invidious, I mean primarily, stigmatizing, marking as inferior.

Justice Harry A. Blackmun: Let me -- let me make my --

Mr. Cox: Shutting out of participation --

Justice Harry A. Blackmun: Mr. Cox, let me make my question a little more precise.

Can you give me a test which would differentiate the case of 50 students from the case of 16 students?

Mr. Cox: I would have to make this turn on a subjective inquiry I think but I would also have to look and see what the fifth significance of the 50 students was in the overall context of the community its educational system in the state.

And I would -- I suppose I would be governed partly by purpose and partly by effect but that would leave me back to purpose.

Justice Lewis F. Powell: But in Mr. Justice Rehnquist example, he was assuming precisely the same motivation that is present in this case, the desire to increase the number of black in minority doctors and the desire to increase the mixture the student population.

Why would not -- not that justify the 50?

Mr. Cox: Well, if the finding is that this was reasonably adopted to the purpose of increasing the number of minority doctors or and that it was not in arbitrary, capricious, selfish, setting and that would have to be decided in the light of the other medical schools in the state and the needs of the state.

But if it's a solidly based then I would say 50 was permissible.

Just as in my example, I said that educating only Indians in a program tailored to training, teachers to go back to Indian reservations.

It seems to me to be constitutional and there are such programs that both private and state institutions.

Chief Justice Warren E. Burger: Are you going to address the question of other alternatives Mr. Cox?

Mr. Cox: I will and should, yes.

In our view, the other alternative suggested simply won't work.

One is to build more medical schools.

Well, Davis was a middle medical school and it did not have any, until it adopted this program, virtually no blacks or Chicanos were admitted.

One would have to increase the number of medical schools out of all reason before that would produce substantial numbers of minorities under the conventional admissions test.

Second suggestion is better recruiting.

That suggestion seems to us to overlook the extensive recruiting efforts that were made during the late 60's that are describe in Odegaard minorities in medicine which incidentally is probably the best reference spoke on this subject and other references in our brief.

It also assumes that there are out there a lot high test score, high college grade, members of minorities that haven't applied or been found by any law school, any medical school, or any graduate school.

It just seems --

Chief Justice Warren E. Burger: But what about a -- what about a make up?

What about an additional year to make up for all people who might be --

Mr. Cox: Well then the next suggestion is that something be done for all disadvantaged.

That won't meet this -- I don't want to keep anything from disadvantaged or to talk down any program that was rather disadvantaged.

But I've -- that would not meet the specific needs for which these programs are tailored for two reasons.

First, the minorities are only a minor fraction of all disadvantaged.

Second, all the study show whatever the explanation that minority students do worst among the students of families who are economic dis -- economically disadvantaged, just as they do worst when you take total ratio of applicant so that the program for the disadvantaged would not bring substantial numbers of minorities into the school.

The other suggestion that has been made is that we should not use the word race.

We should talk about choosing people for admission to medical colleges who are most likely to go to those communities that have been the victims of discrimination and the need better medical care.

But don't ever say the word or that we should get those who will be role models for the communities in which the past is denied the ambition to young people, certainly, ambition to this kind of role in the community.

Those I submit are circumlocutions, they're euphemisms, or if we're talking about realities, race is a fact.

It is something that all kinds of social feelings, context, a vision one's opportunity is related to.

And if one is going the meaningfully direct these programs in social objective it's simply still defying to disregard a reality that we hope will stop having significance in these areas and which will have more sig -- in which we have a best chance of depriving of its present unfortunate significance, if these programs are permitted to continue and succeed.

May I save, Mr. Chief Justice, the few minutes I have left?

Chief Justice Warren E. Burger: You have very little left if we've taken a good deal of your time, so we'll enlarge your time five minutes and enlarge Mr. Colvin's time accordingly.

Mr. Cox: Perhaps I should better use it in rebuttal and I can see what the court is focusing on.

Chief Justice Warren E. Burger: I'll give you probably about seven minutes altogether.

Mr. Cox: Thank you very much.

Chief Justice Warren E. Burger: Mr. Solicitor General.

Argument of Mccree

Mr. Mccree: Mr. Chief Justice, may it please the Court.

The interest of the United States of America is amicus curiae stands from the fact that the Congress and the executive branch have adopted many minority sensitive programs.

They take race or minority status into account in order to achieve the goal of equal opportunity.

The United States is also concluded that voluntary programs to increase the participation of minorities in activities throughout our society.

Activities previously close to them should be encouraged and supported.

Accordingly, it asks this Court to reject the holding of the Supreme Court of California if race or other minority status may not constitutionally be employed in affirmative action and special admissions programs properly designed and tailored to eliminate discrimination against racial and ethnic minorities as such discrimination exist today or to help overcome the effects of past years of discriminations.

This Court does not require a recital of the extent in duration of racial discrimination in America from the time it was enshrined in our very Constitution in the three-fifths comprise, in the fugitive slave provision and in the provision preventing the importation of such persons prior to1808.

And it continues until the present day as the over burden dockets of the lower federal courts and indeed of this Court will indicate where there's been non-compliance with the decisions of this Court that it rediscovered and are still rediscovering the true genius of the Fourteenth Amendment.

Indeed, many children born in 1954, when Brown was decided are today 23 years later the very persons knocking on the doors of professional schools seeking admission about the country that they are persons who in many instances have been denied the fulfillment of the promise of that decision because of resistance to this Court's decision that was such a landmark when it was handed down.

And this discrimination has not been limited just to persons of African ancestry.

We all know too well the Asian Exclusion Acts that have discriminated against Asian-American citizens.

The sad history of our native American-Indian population and the treatment of our Hispanic population sometimes called Chicano.

This is what prompts the interest of the United States in seeing that this Court shall overturn the ruling of the California Supreme Court, the race or minority status may not be taken into consideration in formulating remedial programs.

A Professor Zimmer at the University of Illinois has written, if the ultimate social reality is the irrelevancy of race, the present reality is that race is very relevant.

Accordingly, it would be appear that to be blind to race today is to be blind to reality.

Now as we've argued in our brief, a school district may take race into account in formulating voluntary plans of integration.

We've argued and this Court has held that it need not to await litigation and it may take into account not only its own discrimination but also the consequences of discrimination elsewhere in our society because the impact of discrimination is not limited by source or locality.

Chief Justice Warren E. Burger: Mr. Solicitor General, is there any evidence in this record that this University its medical school at Davis has ever engaged in any exclusion or discrimination on the basis of race?

Mr. Mccree: There is no evidence in the record that this University has and indeed, I would be surprised to have found it in according to the state of this record.

However, this Court is aware to its decisions of discrimination in the State of California.

In many cases involving the school districts of Los Angeles, of Pasadena, of San Francisco and indeed, there is census data revealing that about 40% of the black students in California or black persons of school age in California grew up and spent harder of their growing years in states where there was de jure segregation.

Until it was stricken down in 1954 and where it persisted and still it seems to elude efforts to extra pay their root and branch.

And this is -- the significance of my statement that the school need not be restricted to eliminating the effects of its own acts of discrimination but may take into account society's discrimination because of the pervasiveness of its impact.

Chief Justice Warren E. Burger: Including -- do you include in that conduct outside the State of California?

Mr. Mccree: I would include conduct throughout the nation because we are the nation without barriers to travel.

And indeed California seems to have been -- seems to be currently one of the principal recipients of the flow of population from other parts of the country.

And many of them bring with them the handicaps imposed upon them by conditions to which they were subjected before they went west.

We suggest that it is not enough merely to look at the visible wounds imposed by unconstitutional discrimination base upon race or ethnic status because the very identification of race or ethnic status in the America today is itself a handicap.

And it is something that the California University at Davis Medical School could and should properly consider in affording a remedy to correct the denial of racial justice in this nation.

And we submit that the Fourteenth Amendment instead of outlawing this.

Indeed should welcome it as part of its intent or purpose.

There were limited opportunities for professional and graduate education and as my brother, Mr. Cox, has pointed out.

There is a problem faced by every school which has to apportion scarcity of making decisions how it shall employ these resources and United States submits that this is a decision best left to the professional judgment of the faculties of those schools so long as this apportionment is not motivated by invidious racial purposes.

Justice William H. Rehnquist: General McCree does the United States really care whether the decisions made by the faculty, by the President or the Board of Regents?

Mr. Mccree: The United States should not care about that.

It -- I was referring to that facts of this case where it appears that it was made by the faculty there's a reference to a faculty resolution which unfortunately does not appear in this as far as record.

Justice William H. Rehnquist: Do you think it would be any different if it have been made by the Board of Regents rather than by the faculty or by the legislature?

Mr. Mccree: I would think the result should be the same, Your Honor.

Justice Harry A. Blackmun: Mr. Solicitor General, you suggest on this question of invidiousness that there should be a remand to take further evidence to find out among other things why the Asian-Americans were included in the program.

Supposing the evidence shows that the reason they were included was because they had in the past been the victims of discrimination.

What inference should we draw up in that kind of conclusion, would that mean the program is good or bad?

Is that a sufficient justification?

Mr. Mccree: Well, we submit that a remedy is intended to right or wrong.

And we think that the Court should scrutinize the use of race to make certain that it is being used to remedy a wrong and our reference to Asian-Americans here, certainly was not to suggest that they are not entitled to consideration within the program, but just to indicate that the sparseness of this record makes it difficult if not impossible to determine the extent of continuing -- the continuing impact of racial discrimination upon that segment of our society.

If I may continue in this answer, it would appear that the Asian-American population isn't monolithic anymore than any other categorical segment of American population.

And certainly in addition to Chinese and Japanese, there are Korean, Philippine, Cambodian, Laotian, Indonesian, and the impact upon these varying segments is not known and doesn't appear from the record except where we make a reference, I believe on page 40 of our brief to some census statistics concerning you.

And we think this Court should and Court should appropriately make certain that programs that have a racial component are indeed remedial and this is the reason for the suggestion of our remand because of the state of this particular record.

Justice William H. Rehnquist: What does this record lack with respect to Asian-Americans that it has with respect to the other minorities who are included in the program?

Mr. Mccree: Well among other things, this record -- well, it isn't so much the record, let me correct that answer, is it is available data in the form of statistics, census data which will show for example and that black physicians comprise something like 2.4 that's an approximation of all the physicians that the native American figure, I believe, is less than 1% that the Hispanic or Chicano figure is approximately 2%, and we just don't know the impact of that within the Asian-American community.

And we think that this could be determined if it was sent back for this purpose.

Chief Justice Warren E. Burger: Does the record show the number of the doctors, lawyers, engineers who are of Asian ancestry and partial Asian ancestry in California?

Mr. Mccree: There is a reference, I believe its page 42 of my brief that has a census figure that has a grow statement of the number of professional of the number of professional persons within -- may correct that, its page 42 and it is the footnote and there's a reference.

29.1% of Asia-American persons held professional managerial and administrative positions then it goes on to speak of laboring positions and so forth.

But there's no breakdown in this professional managerial to professional and particularly including medical or legal practitioners.

Chief Justice Warren E. Burger: 29% is substantially higher than their proportion of the total population is that so?

Mr. Mccree: This would appear to be so but it would be significant only if it were monolithic community.

It might turn out that among Koreans, the figure was less than one or two percent or among Taiwanese or among Cambodians or Laotians and at such a generic category of Asian-Americans that we submit that this is something that a court might want to look at.

Chief Justice Warren E. Burger: But on its face, the 29% hardly would support any ready conclusion that there's pervasive discrimination against people of Asian ancestry, is that so?

Mr. Mccree: On this record, this is possible but we know how sparse this record is.

We know that this was submitted solely on declaration of Dr. Lowrey and the discovery deposition with and the pleadings was no testimony taken at all about the statistics or the demographic statistics of California.

And the interest for United States as amicus curiae is in the principle that there may be remedial voluntary remedial programs that are race-conscious minority aware.

They take these factors into consideration in order fairly to evaluate credentials of persons who may have suffered from this.

And were interested in having this principle cleared and the Supreme Court of California has said that race of -- the race of an applicant or of other applicant may not be taken into consideration for any purpose.

Justice Lewis F. Powell: May I ask Mr. Solicitor General, do you agree with Mr. Cox that the we ought not to address the Title VI question?

Mr. Mccree: I believe that Title VI of the Civil Rights Act of 1969 states no principle, no substantive principle different from the Fourteenth Amendment.

Justice Lewis F. Powell: Well, that goes to the merits.

Should we or should we not address it?

Mr. Mccree: Well, I disagree with him in one respect.

This Court has held that a -- a ground not urged below may be urged here in support of a judgment.

The question becomes whether it is urged here.

There's a reference to it in the reply brief of respondents whether it is -- that is an assertion in support of the judgment or not is something that I think is debatable.

I would like to argue that it is not, that it is a passing reference.

But it can be urged --

Justice Lewis F. Powell: Of course he may -- he may still urge it.

Mr. Mccree: He may and unfortunately he follows that.

I would like to conclude that undoubtedly he shall.

I would like to conclude that this is not the kind of case that should be decided just by extrapolation from other precedents that we are here asking the Court to give us the full dimensions of the Fourteenth Amendment that was intended to afford equal protection and we suggest that the Fourteenth Amendment should not only require equality of treatment but should also permit persons who were held back to be brought up to the starting line where the opportunity for equality will be meaningful and this Court has reasoned on other occasions to challenges like this because we will never forget that when it hears the real cases.

It is a Constitution, it is expounding.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Colvin.

Argument of Reynold H. Colvin

Mr. Colvin: Mr. Chief Justice and members of the Court, I think that the Honorable Wade McCree's last remark was something of a prediction that I might not disappoint him and I will try not to.

It seems to me that the first thing that I ought to say to this Honorable Court is that I am Allan Bakke's lawyer and Allan Bakke is my client and I do not say that in any formal or perfunctory way, I say that because this is a lawsuit.

It was a lawsuit brought by Allan Bakke, up at Woodland in Yolo County, California in which Allan Bakke from the very beginning of this lawsuit in the first paper we ever filed, stated the case and he stated the case in terms of his individual right.

He stated the case in terms of the fact that he had twice applied for an admission to the medical school of Davis and twice he had been refused, both in the years 1973 and the year 1974.

And he stated in that complaint what now some three and a half years later, proves to be the very heart of the thing that we're talking about at this juncture.

He stated that he was excluded from that school because that school had adopted a racial quota which deprived him of the opportunity for admission into the school and that's where the case started.

It started with a suit against the University.

He stated three grounds upon which he felt that he had been deprived of the right to admission to that school, the Equal Protection Clause of the Fourteenth Amendment, the privileges and immunities portion of the California Constitution, and Title VI 42 of the United States Code 2000 (d) and those were the three grounds upon which he placed this complaint from the very beginning.

The University --

Justice Potter Stewart: You spoke Mr. Colvin of the right to admission; you don't seriously submit that he had a right to be --

Mr. Colvin: I wanted to get to that and I quite agree and let me say it now so that it's out of the way.

We have no contention here that Allan Bakke has a constitutional right or even a statutory right to be in a medical school.

As a matter of fact, I am sure that if the Regents of the University of California had decided to close the medical school at Davis that Allan Bakke couldn't stand up here through his lawyer or even get beyond the first demurrer in the superior court of Woodland and say I have a right to go to the medical school.

That is not Allan Bakke's position.

Allan Bakke's position is that he has a right and that right is not to be discriminated against by reason of his race and that's what brings Allan Bakke to this Court.

Now, let me go on for just a moment with what happened in the lawsuit because it's very important that we follow this step by step.

The University at the very beginning did several things.

First, they denied that it was -- that they had a racial quota.

I think that's disappeared from the case.

Secondly, they denied that Mr. Bakke would have been admitted even have there been no racial quota and as I will indicate at some length I hope later on, that's disappeared in the case.

They admitted, speaking of the scope of Section 2000 (d), they admitted that they were a federally funded institution but they did more than that.

They did more that.

They then filed a cross-complaint against Allan Bakke and within the cross-complaint, they sought their own kind of relief and the relief which they sought was the relief that their program be declared constitutional, not only constitutional buy constitutional within the federal sense and within the California sense and something else, that it also be declared constitutional within the meaning of 2000 (d), that is Title VI and so the issue was joined.

Now, bear in mind, bear in mind the whole scope of what we're talking about in this lawsuit.

Here we are in September -- in June of 1964, we filed a complaint, the name of the game is not to represent -- is not to represent Allan Bakke, as a representative of a class.

We are not representing Allan Bakke as a representative of some organization.

This is not an exercise in a law review article or a bar examination question, this is a question of getting Mr. Bakke into the medical school and that's the name of the game and we have to do that in order to be effective as lawyers and we humbly tried to be effective as lawyers, sometime between June of 1974 and the entering class of September of 1974 and if you read the record, you will see the frantic efforts we make to get before the Court and we tried to get before the Court on a question of injunction, on a questions of mandamus, on a question of a declaratory relief, each of them moving the thing forward on the calendar.

Justice William H. Rehnquist: But no one is charging you with laches here, Mr. Colvin.

Mr. Colvin: No but I -- I'm relieved to hear but that wasn't exactly my point if I may just continue for the moment.

I wanted to continue for the moment to discuss the dimension of the record because that's part of what has been said here and in order to indicate the record and why the record is in the posture that the record is in.

The first thing that we did within the record was to take the deposition of Dr. Lowrey and after we took the deposition of Dr. Lowrey, Dr. Lowrey's deposition was further bolstered by Dr. Lowrey's declaration prepared no doubt with the assistance of his counsel.

Now, where do we find --

Justice Thurgood Marshall: Am I correct that Dr. Lowrey was not dean when this --

Mr. Colvin: No.

Justice Thurgood Marshall: He was not dean when all this occurred, was he?

Mr. Colvin: No, that is not -- it's true and it's not true.

May I explain, sir?

Justice Thurgood Marshall: But was he dean when this regulation was put into effect.

Mr. Colvin: The answer to that is no but the answer to the question --

Justice Thurgood Marshall: Well, my point is -- if I may finish point.

Did you put on any evidence as to what happened?

Mr. Colvin: No, we accepted --

Justice Thurgood Marshall: All you had was hearsay.

Mr. Colvin: Well, it was hearsay by the Dean of Admissions who was administering a program and if I may just say this I will not attempt to get into a discussion of what is hearsay and what is not hearsay but the fact of the matter is that it was Dr. Lowrey who was administering the program by both in 1973 and in 1974 and more than that, it was Dr. Lowrey himself who had reviewed and interviewed Mr. Bakke in 1974.

So the point that I'm trying to make is that we were not exploring to the testimony of some official who was 200 miles away as to what had happened.

Dr. Lowrey was there on the seat.

Justice Marshall, you are correct in this respect that at the time that the faculty adopted the resolution, Dr. Lowrey was elsewhere.

I believe from my recollection of the deposition that he was at the University of Michigan.

I may be mistaken on that that but that is my recollection.

Justice Thurgood Marshall: Did you take a deposition of anybody who knew what happened.

Mr. Colvin: What we think and was quite clear.

Let me answer that.

I am satisfied.

Justice Thurgood Marshall: Well, you couldn't answer that simply by yes or no.

Mr. Colvin: My answer is yes.

My answer is that Dr. Lowrey was the Dean of Admissions that he brought with him to the deposition, every piece of paper for which we had asked for that he had personally interviewed Mr. Bakke and as a matter of fact, the record of the interview are between Dr. Lowrey --

Justice Thurgood Marshall: Well, what was the decision of the committee of the faculty?

Mr. Colvin: The doctor -- Mr. Bakke was turned down for admission --

Justice Thurgood Marshall: No, no.

I mean, when the rules were set up.

What were the rules?

Mr. Colvin: The rules were simply that 8% -- that 16% of the entering class.

Justice Thurgood Marshall: But what about the 8% --

Mr. Colvin: No, no 8% is the number.

I'm sorry --

Justice Thurgood Marshall: Well, 8% was before and now it's 16.

Mr. Colvin: May I start over again?

It was always 16%.

In the early years, --

Justice Thurgood Marshall: No, no 16 people.

16 people.

Mr. Colvin: No, in the early years of the school there were just 50 admitted in the entering class.

Justice Thurgood Marshall: Well, does the rule say 16%?

Mr. Colvin: The rule says 16%.

Justice Thurgood Marshall: Oh, 16.

Mr. Colvin: 16%

Justice Thurgood Marshall: Where is the rule in the record?

Mr. Colvin: Well, I --

Justice Thurgood Marshall: It's in Dr. Lowrey's --

Mr. Colvin: In Dr. Lowrey's deposition.

Justice Thurgood Marshall: But there's no other thing there except that?

Mr. Colvin: That's where we find it yes.

Justice Thurgood Marshall: And that's hearsay.

Mr. Colvin: In my judgment -- in my judgment, it would only be hearsay in the sense that it relates to the historical origin of the rule but it is not hearsay as it relates to the way the rule was imposed in the two years that Dr. -- that Mr. --

Justice Thurgood Marshall: My only point I say is that we don't know how the rule came about.

Mr. Colvin: Well, we do know that it came about by faculty vote.

That is in the record.

Justice Thurgood Marshall: Right.

Mr. Colvin: That is in the record.

Justice Thurgood Marshall: And what else do we know?

Mr. Colvin: Well, we also -- we also know that statistics were kept and they are in the record for each of the --

Justice Thurgood Marshall: Now what criteria was set down for disadvantaged?

Mr. Colvin: That question was asked of Dr. Lowrey.

In the deposition of Dr. Lowrey -- I asked Dr. Lowrey two questions.

The first question was, “Was there any definition of the term educationally disadvantaged?”

The answer was no.

And the second question was, “Was there a definition of the term economically disadvantaged?”

Then the answer was no.

Justice Thurgood Marshall: He's talking about the present time when he was testifying.

Mr. Colvin: Yes, yes.

Justice Thurgood Marshall: Well, I'm trying to find out what happened when it was adopted.

I guess I -- there's no way for me to find that out with this record.

Mr. Colvin: I don't believe -- I don't believe there was.

Other that -- except that I may say -- if I may say most respectfully then I do have the feeling as a lawyer that a -- that you have two things in the record.

You have the deposition of Dr. Lowrey the dean of admissions.

You have the declaration of Dr. Lowrey, the Dean of Admissions and I think that a fair reading of both of those documents lays out pretty well what the situation was.

I -- whether something was technically hearsay, I really couldn't argue that point.

Justice Lewis F. Powell: There's no -- no controversy between counsel as to the existence of the plan or as kind to those or what it provided, is there?

Mr. Colvin: Well, we believe -- yes, we believe that there is a very important kind of controversy which is involved here and that is precisely the controversy over the concept of quota.

Justice Lewis F. Powell: But is it a factual controversy or --

Mr. Colvin: Well, we think -- we think in general, yes.

We think there are a lot of factual elements to it.

Let me make a distinction on this quota question if I may, Your Honor.

There are many points in the University's brief where somehow in order to take the sting out of the word quota, the word goal is used.

This is not a quota they say but it is a goal.

We find that to be a real misuse of language.

Justice William H. Rehnquist: Mr. Colvin, to follow up a minute Justice Powell's question.

That really is a matter of characterization rather than strictly a fact.

As I understand it, there were 16 places set aside for minority applicants and the -- you're certainly free to argue from that what you want to about quotas and goals but that really goes beyond the strict factual matter.

Mr. Colvin: Although the factual question if I may respond to that just briefly arises in somehow in a different way and let me illustrate it this way because it is a factual -- there is a factual circumstance involved and let me try to spell out what I believe that factual circumstance to be.

Normally, if we have a goal, -- if we have a goal.

If we're going to get a number of people in, we select a standard and then above that standard, we admit people in order to -- in order to qualify.

Precisely the opposite is true here.

In this case, we have to follow what the factual situation is.

Here we have a quota where the number is first chosen and then the number is filled regardless of the standard and let me say precisely from the record what I mean.

When we take Dr. Lowrey's deposition, one of the very first questions asked Dr. Lowrey is this question, what is the standard for admission to the school?

And Dr. Lowrey's response is that the standard is that we will interview no one who has a grade point average below 2.5.

Now, let's look at the record on that point.

In the year 1973, the people within the quota or special admissions program have overall grade point averages which run all the way down to 2.21 in -- that's in 1974.

In 1973, they run all the way down to 2.11 but the science grade point averages for that group and I am not giving you averages.

I mean to say range.

The range runs all the way down to 2.02, that's the grade point average side.

Justice Lewis F. Powell: Yes, but Mr. Colvin, you do not dispute the basic finding that everybody admitted under the special program was qualified.

Mr. Colvin: I certainly do.

We certainly do dispute it not upon the ground -- not upon the ground that Mr. Bakke is attempting to tell the school what the qualifications are nor upon the ground that we as his counsel can somehow set up a rule which will tell us who is qualified to go medical school.

Chief Justice Warren E. Burger: Mr. Colvin, don't get too far away from the microphone if you want to stay on the record.

Mr. Colvin: I'm sorry, sir.

I sometimes think of it as a retreat.

The -- but the point that we are making now, is this that the rules as to admission were fixed neither by Bakke nor his attorneys but were fixed by the school itself.

They were the ones who chose grade point averages and they were the ones who chose MCAT scores as a basis for judging admissions and let me say this about the MCAT scores because it relates again to the question that I was answering as to the difference between a goal and a quota.

Justice Lewis F. Powell: But there's nothing in the record to indicate that they chose the 2.5 figure because they felt that anyone with a lesser score would not be qualified either to do the academic work or to practice medicine.

Mr. Colvin: No, but that was their rule.

That was their rule and I think there's a fair inference from the record that there was a reasonable basis for Dr. Lowrey stating that that was the rule of the school.

Justice Lewis F. Powell: Yes, it was an administrative basis.

Mr. Colvin: It was an administrative basis but at least, it was their basis.

Justice Lewis F. Powell: Well then, but how does that go -- why do you disagree with the proposition that there's nothing in this record to show that any of the special people were qualified to study and to practice.

Mr. Colvin: We simply say that we do not agree, we do not agree that there is a showing that they were qualified.

We are not making the argument that they disqualified but we are saying taking the school's own standards, taking the very thing that the school was talking about, they simply do not measure up on that point.

But let me finish if I may because it is hard to -- it's hard to finish all of these things and I do want to comment about the same thing as it applies to the MCAT scores.

You will recall that in Dr. Lowrey's deposition, Dr. Lowrey says, we would be hard pressed.

We would be hard pressed to admit people to the school if they had MCAT, Medical College Aptitude Test percentiles in science and in verbal which were below 50 but look at the record in the case.

Look at the record in the case.

In 1973, the average, not the range but the average of the people of the special admissions group was in the 35th percentile in science and in the 46th percentile in verbal.

In 1974, the percentile in science and this is an average and not a range was 37 and in verbal 34.

Allan Bakke -- Allan Bakke took the test only once and his record is there.

You will find it on page 13 of our brief.

He scored in the 97th percentile in science and in the 96th percentile in verbal.

The ultimate fact in this case no matter how you turn it is that Mr. Bakke was deprived of an opportunity to attend the school by reason of his race.

This is not a matter of conjecture.

This is a stipulation by the Regents of the University of California.

Justice Byron R. White: Well, for purposes of this argument though, you don't -- do you need to go any farther than to assert and convince somebody that he was deprived of an opportunity to compete for one of the six teams seats because of his race.

Will he go farther than that?

Mr. Colvin: Well, yes.

I think I'm afraid that -- I'm afraid that I ought to.

Justice Byron R. White: If you don't need to go any farther, you simply are taking up a lot of your time.

Mr. Colvin: Well, I don't want to take up my time except to say that there is within this record the stipulation of the Regents of the University of California that Mr. Bakke was deprived of the opportunity to attend the University of California Medical School at Davis because of the use of the 16 places by the special admissions program.

Justice William O. Douglas: Mr. Colvin, may I follow up on Justice White's observation.

Certainly as I view this record, the University doesn't deny or dispute the basic facts, they are perfectly clear.

We are here, at least I'm here primarily that to hear our constitutional argument, you devoted 20 minutes belaboring of facts, if I may say so.

I would like to help.

I really would on the constitutional issue.

Could you address that please?

Mr. Colvin: Yes, I would like to address the problems that arise with quota and the problems that arise with race, and I would like also to address the alternative which the University suggests.

We have the deepest difficulty in dealing with this problem of quota and many, many questions arise for example there is a question of numbers.

What is the appropriate quota -- what is the appropriate quota for a medical school?

16, 8, 32, 64, 100?

On what basis -- on what basis is that quota determined and there is a problem, a very serious problem of judicial determination.

Does the -- does the Court leave open to the school the right to choose any number at once in order to satisfy that quota?

Would the Court be satisfied to allow an institution such as the University of California to adopt a quota of 100% and thus deprive all persons who are not people within selected minority groups?

Justice Byron R. White: Well, what's your response to the assertion of the University that it was entitled to have a special program and take race into account and that under the Fourteenth Amendment there was no barrier to it doing that because of the interest that were involved.

Now what's your response to that because of the interest that was involved?

Mr. Colvin: Our response to that is fundamentally that race an improper classification in this situation.

As a matter of fact, the Government in its own brief makes that very point.

Justice Byron R. White: Well, do you disagree with the California Supreme Court when it said that -- when it identified the interest that it understood the University was taking into account in this special program and agreed with the University's submission that these were compelling interests.

Mr. Colvin: The California Court made those assumptions arguendo.

Justice Byron R. White: Well, do you agree with them or not?

Mr. Colvin: Well, we think -- we think that we need not disagree with them that they are fair -- that they are fair assumptions but if went much further.

Justice Byron R. White: Well then you -- you agree that -- you don't disagree then that these interests they're asserting are compelling interests?

Mr. Colvin: We assume as the Court did that those specific interests, not all of them but that those specific interests are compelling interests.

Our problem is --

Justice Byron R. White: But do you agree then -- then you also agree that if they are compelling, and if there were no alternatives, if there were no alternatives that the fact that -- would you agree that the racial classification could be upheld?

Mr. Colvin: We might someday come to that.

But I don't think we come to it in this case and I think that --

Justice Byron R. White: So you -- part of your submission is even if things are compelling interests, even if there is no alternative, use of the racial classification is unconstitutional.

Mr. Colvin: We believe that it's unconstitutional, we do.

Chief Justice Warren E. Burger: It's not because it's limited rigidly to 16?

Mr. Colvin: No, not because it's limited to 16 but because the concept of race itself as a classification becomes in our history and in our understanding an unjust and improper basis upon which to judge people.

We do not believe that intelligence, that achievement, that ability are measured by skin pigmentation or by the last surname of an individual whether or not it sounds Spanish or --

Chief Justice Warren E. Burger: Well, do you mean by that as to the 16 places, the allocation was dominantly by race?

Mr. Colvin: Oh!

There's no question about what the 16 places was dominantly by race and I have to go back to the record, if I may just to reach that point.

There were no non-minority people who were ever admitted to the special admission program and I do not mean that that was for the lack of trying.

In the years 1973 and 1974, 245 people whom the University itself classified as economically -- as white economically disadvantaged sought admission into those places.

And there were none admitted either in those two years or in any years and that was more than a third of all of the people who sought to get into the program but they could not and so that you had a program at the University of California Medical School at Davis where people were shut out from 16 of the places and our belief in this case is that this is done essentially because the universities will not follow, will not follow the suggestion of the California Supreme Court and the --

Justice Byron R. White: Well, I take it then that if we disagreed with you that that racial classification is invalid even if there are compelling interests and even if there's no alternative.

I get -- you then support the California Court's conclusion that there were alternatives in fact.

Mr. Colvin: Well, we do support the conclusion that there were alternatives and I would like to comment on that face of the case.

One of the -- one of the suggestion which the California Supreme Court made was that the universities looked at people in terms of disadvantaged, looked at people individually in terms of disadvantaged.

Now, I know and we all know that there are cases that are deemed to be societal discrimination where millions and tens of million people are involved particularly people, particularly cases dealing perhaps with social security, cases dealing with women.

That is not this case.

There were 100 people who were enrolled each year into the Davis Medical School.

It may have been administratively difficult.

It may have been administratively difficult for people for the administrators of the school to look at the hundred and to select those who may would have admit upon the basis of disadvantaged.

The problem is that the University has become quota happy.

Justice William H. Rehnquist: Mr. Colvin, what if the University says, “We don't want to just aim at the disadvantaged.

We want to increase the number of black doctors who are practicing in California” to the -- is that a permissible goal on the part of the University?

Mr. Colvin: To the extent that the judgment is made on whether those doctors are disadvantaged, it is a legitimate means to the extent and the univer -- and the Supreme Court of California says this to the extent that the preference is on the basis of the race, we believe that it's an unconstitutional advantage.

Justice William H. Rehnquist: But do you say then that it is not a permissible goal on the part of the University to increase the number of black doctors practicing?

Mr. Colvin: We say it is a permissible goal and if --

Justice William H. Rehnquist: If it's a permissible goal, why on earth beat around the bush?

Why not simply make a race-oriented selection process?

Mr. Colvin: Because the University -- because the Supreme Court says to the University, you cannot lead to the quota system.

What you must first do is to undertake to meet the question of disadvantaged where it exists if it exists.

Justice William H. Rehnquist: But the University comes back and says we're not interested in disadvantaged as such, we're interested in blacks.

Mr. Colvin: Yes, but the Supreme Court comes back to the University and says what you are doing is skipping one step.

You are not -- the reason, what is the reason?

What is the reason for this goal?

What is the reason why people are saying we want more Chicano doctors, more black doctors, more oriental doctors, the reason is because we claim that there was disadvantaged.

The difficulty is with the racial classification is that we are engaging in these broad generalizations that everyone of a given race has suffered the same advantage, or the same disadvantage, the same welfare or the same poverty, the same education or the same lack of education.

The prob -- the event -- there are two benefits for the University to look at the question of advantage and the first of those benefits is that it does not run into a constitutional difficulty and the second advantage or the second benefit of looking at the question of disadvantaged is that it meets the problem where it exists.

It meets it at the point of the individual.

It does not generalize.

It is not true that all members of a given race have exactly the same experience, the same wealth, the same education and that's the point that Justice Mosk is making in the California Supreme Court.

He says it is inappropriate.

It is inappropriate whatever your goal is to jump to the question of making these racial discriminations and particularly inappropriate we say, particularly inappropriate we say because the thing that happens is that it keeps Mr. Bakke out of medical school not because of somebody else's race or anything else but because of Mr. Bakke's race, he becomes ineligible himself to enter the medical school and Mr. Bakke's individual state in this matter is an important state and I started with the proposition that I am Mr. Bakke's lawyer and Mr. Bakke is my client.

He has a right to that protection.

He has a right.

He desires to show that he is one of those who is entitled to enter that medical school to keep him out because of his race we submit is an impropriety.

The whole point --

Justice Thurgood Marshall: Your client did compete for the 84 seats, didn't he?

Mr. Colvin: Yes, he did.

Justice Thurgood Marshall: And he lost.

Mr. Colvin: Yes, he did.

Justice Thurgood Marshall: Now would your argument be the same if one instead of 16 seats were left open?

Mr. Colvin: Most respectfully, the argument does not turn on the numbers.

Justice Thurgood Marshall: Would -- my question is would you make the same --

Mr. Colvin: Yes, I would make.

If it was one and if there was an agreement as there is in this that he was kept out by his race, whether it's one, 100, 2 --

Justice Thurgood Marshall: I didn't say, anything about him being, I said that the regulation said that one seat would be left open for an underprivileged minority person?

Mr. Colvin: Yes.

Justice Thurgood Marshall: You would argue that?

Mr. Colvin: We don't think we would -- we'd ever get to that point within any --

Justice Thurgood Marshall: So numbers are just not important.

Mr. Colvin: The numbers are not important.

It is the principle of keeping a man out because of his race that is important.

Justice Thurgood Marshall: You're arguing about keeping somebody out and the other side is arguing by getting somebody in?

Mr. Colvin: That's right.

Justice Thurgood Marshall: So it depends on which way you look at it, doesn't it?

Mr. Colvin: It depends on which way you look at the problem.

Justice Thurgood Marshall: It does?

Mr. Colvin: The problem --

Justice Thurgood Marshall: It does?

Mr. Colvin: If I may finish.

Justice Thurgood Marshall: It does?

Mr. Colvin: The problem is --

Justice Thurgood Marshall: You're talking about your client's rights, don't these underprivileged people have some rights?

Mr. Colvin: They certainly have the rights to compete to -- they have the right to compete, they have the right to equal competition.

They even have another right which was given them by the California Supreme Court.

They have the right to compete not only upon the basis of grades, they have the right to compete upon the basis of disadvantaged.

The fact -- the University of course says we will have nothing to do with that.

If we can't have a quota then there's no place for us to go.

Bear in mind, bear in mind that the Supreme Court of the State of California is entirely explicit in its opinion.

It says we are not, emphasized, we are not telling the California -- the University of California Medical School that it has to take the 100 people with the highest point grade average of the highest MCAT scores or whatever it is.

The selection --

Justice Lewis F. Powell: May I ask you a question that I think is relevant to your last statement.

Mr. Colvin: Yes.

Justice Lewis F. Powell: The case before us involves essentially a two-track admission system with separate committees.

Let's assume you have a university, a medical school with a single admission committee and with no allocation of seats to any particular ethnic or other group of applicants but that it had a long list of factors or elements that the admissions committee fairly considered and assumed further that race and sex and geographical location and economic background and urban-rural and all of the other factors that academicians do consider in admitting people at the college and to professional schools.

Assume that type of system and further assume that your client had not been admitted, would your argument be the same that the constitutional matter?

Mr. Colvin: Our argument would be the same to the extent -- to the extent that race itself was the crucial matter in the admission situation.

Justice Lewis F. Powell: My hypothetical listed race as one of eight or ten factors or elements that a committee might fairly waive in the interest of diversity of the student body for example.

Would that be unconstitutional in your opinion?

Mr. Colvin: In our opinion -- in our opinion, at this point in the California situation, with the rule of the Supreme Court before it, Supreme Court of California that race itself is an improper ground for selection or rejection for the medical school.

Now, there are all kind of other factors of economic and educational diversity.

We have no quarrel whatever with that.

The problem -- well, the problem really is that as we look at the Fourteenth Amendment and as we look at 2000 (d), the fact of the matter is that it is race itself, it is the discrimination on the ground of race itself which is -- which is forbidden.

2000 (d) just for as the matter of refreshment, refreshing says, “No person in the United States shall on the ground of race, color or national origin be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving federal financial assistance” and we think that the particular scheme to the extent that race becomes a crucial in a court matter certainly flies in the face of this.

Justice Byron R. White: Well, I take it if we -- if we didn't agree with the California Supreme Court on the federal issue, and reverse them, I take it you would pursue the other grounds that you had in the California Supreme Court, the state grounds and the federal statute ground.

Mr. Colvin: May I just say a word about the record on that.

The record on that as I have indicated is that when Mr. Bakke filed his complaint up at Woodland, he listed the state ground and the statutory ground as well as the constitutional ground.

Number two, when the University filed its cross-complaint up at Woodland, it listed both the state constitutional ground and the statutory ground as part of its declaratory relief point three when Judge Macar (ph) who was the trial judge made his findings and conclusions in this case, his conclusion was that the program was improper both -- not only under the constitutional and state ground but also under 2000 (d) and more than that number 4, the very judgment in this case as it exists is a judgment, is a judgment that a --

Justice Byron R. White: On all those grounds.

Mr. Colvin: On all of those grounds.

Justice Byron R. White: Now, where those grounds all taken to the Supreme Court of California?

Mr. Colvin: There were all -- there were all probably attention to the Supreme Court of California, it is true that by that time, the University had written a brief basically under the Fourteenth Amendment and it is true that the California Court ignored and elected not to.

Justice Byron R. White: Well, they ignored it but if we reverse the California Supreme Court on the federal -- on the ground that it did decide, what would be the upshot in the California Supreme Court?

I suppose that the other issues that would have to be faced then in the California Supreme Court, namely the federal statutory ground and the state constitutional ground.

Mr. Colvin: My own judgment if I may be so bold is that that becomes almost an idle act because if the basis of reversal is telling the California Court, look at this from the point of view of 2000 (d) or look at this from the point of view of the privileges and immunities clause of the California Constitution then and I say this respectfully and without having the stature to make this statement, I say respectfully that as I read the Fourteenth Amendment and I read 2000 (d), it seems to me that 2000 (d) is even stronger than any --

Justice Byron R. White: I think it's certainly possible that the Fourteenth Amendment wouldn't -- might permit or wouldn't forbid what Congress could forbid in the statute and Congress has often done that and it -- technically, it could be that that the Civil Rights Act forbids things that the Fourteenth Amendment itself wouldn't.

Mr. Colvin: Yes.

Justice Harry A. Blackmun: Are you asking us then Mr. Colvin to decide the federal statutory grounds?

Mr. Colvin: I'm asking this Court to decide.

Justice William J. Brennan: Well we can't -- obviously, we can't pass on the state constitution.

Mr. Colvin: I understand that.

Justice William J. Brennan: Well, I'm asking you then yes or no.

Do you want us to decide the state and federal constitutional ground?

Mr. Colvin: We believe that this case is right and ready for decision on the constitutional ground and on the statutory ground.

We believe that what we have here --

Justice William J. Brennan: Well, ordinarily, we don't decide constitutional questions if we can affirm which is what you ask us to do on a federal statutory ground.

Mr. Colvin: I understand that Justice Brennan and I am -- I am not at any point in this argument attempting to place myself where I do not belong and that is at the decision making.

Justice William J. Brennan: But all you're asking us --

Mr. Colvin: I am asking this Court to affirm the California Supreme Court on both grounds and I am suggesting to the Court, I am suggesting to the Court, I am suggesting to the Court that the California Supreme Court had before it as have been indicated by Mr. Cox a very difficult sensitive issue that it handled it in a very pragmatic and a very practical and valuable sense.

It laid down no harsh rules.

It required no one to discriminate.

Chief Justice Warren E. Burger: Do you think it's arguable that the California Supreme Court should have decided the statutory question for reaching the constitutional question?

Mr. Colvin: I've heard that argument made.

I think that --

Chief Justice Warren E. Burger: And you think it's been pressed today except that our inquiries are aimed at it.

Mr. Colvin: Yes, I've heard that argument made.

I happen to believe -- I happen to believe that the California Supreme Court felt that it was on perfectly sound, round and reaching in the federal constitution and that that is the way the case ought to go.

I of course was not a party to their other deliberation.

Justice Byron R. White: Can I ask you one more question?

In one of the amicus brief, it is asserted that in November 1976, the California Constitution was further amended to say that no person shall be debarred admission to any department of the University on the count of race.

Now, that has -- that of course isn't the case but I suppose that would come up in the case if it were, if we reverse it.

Mr. Colvin: I suppose that there were new case that that would come up.

The fact of the matter was that California has a system that the Court probably knows where the Constitution of California can be amended by a popular plebiscite and that's what happened.

The fact of the matter is that that amendment to the California Constitution occurred approximately a month after the California Supreme Court decision below was final.

Justice Byron R. White: Thank you.

Justice William H. Rehnquist: Mr. Colvin, my brother Powell a moment ago asked you a question suggesting that a university's admission policy took into effect, took into account a number of considerations, one of which was race.

Your response to him was that so long as race is a crucial factor, it's bad under the Fourteenth Amendment.

I want to refine that question but suppose the question where race is taken into account but it is not a crucial or dispositive factor as you referred to it in your answer to him, is that permissible under the Fourteenth Amendment or not?

Mr. Colvin: In my judgment, the use of race as a basis for admission to a medical school or the exercise of other rights is an improper measure, that is my answer to the question.

Justice William H. Rehnquist: Whether crucial or not.

Mr. Colvin: Whether crucial or not except in this situation and that is to the extent, to the extent that the identification of race may give further inquiry to the admissions committee as to whether there has been actual disadvantaged economic educational persecution or whatever but then the decision is to be made on those factors and not the factor of race itself.

That's my position on the matter.

Justice Byron R. White: Well, if it increase -- if taking race into account increases a person's chance of getting in, it's inevitable whether it's going to be crucial at some point.

Mr. Colvin: That was --

Justice Byron R. White: Or at any point.

Mr. Colvin: I think that was the answer that I made.

I think that that was the answer that it was permissible to the extent, to the extent that it gave some clue to the admissions committee that it ought to consider in terms of this individual applicant out of the 100 that it was talking about whether there was a prior history of economic, educational or whatever deprivation, persecution or whatever it may be.

Chief Justice Warren E. Burger: I think you had argued earlier that this record shows that race -- this was your argument at least that race was the dispositive factor here.

Mr. Colvin: Yes, that's our argument.

Chief Justice Warren E. Burger: I think you said, I think the Regents agreed with that.

I think you said also the Regents agreed with that although --

Mr. Colvin: I don't think I said that because I know of no record that there was an explicit approval by the Regents of this system at the day it was --

Chief Justice Warren E. Burger: Well, when I say the Regents, I mean, your adversary.

Mr. Colvin: Oh!

Yes.

Chief Justice Warren E. Burger: I'm identifying the regents as such.

Mr. Colvin: Yes, and what we are saying in that regard -- what we are saying in that regard that on the facts of this case, there was no non-minority person in any of the years covered by the statistics here that was ever admitted to the special admission program.

There was no definition of what was meant by educationally or economically disadvantaged and what I said before and I repeat now is that in the very two years that Mr. Bakke applied, there were 245 people who were deemed by the school to be white economically disadvantaged who tried to get into the program, more than a third of those who tried and not in.

And I also called to the Court's attention one other fact, that in the year 1973 when the application was handed out, the application said, are you applying as a member of a disadvantaged group, economically or educationally.

That was not the question in 1974.

In 1974, the school had gone to the MCAT system which is the general application system used by half the medical schools in the United States.

The question in 1974 which triggered consideration by the special admissions group was this, are you applying as a member of a minority group?

So on its face, on its face the program becomes not even the pretense of a disadvantaged group, the program becomes a program which is designed as a racial proposition and that is what Mr. Bakke is complaining of, it is that which deprives Mr. Bakke of his full opportunity to 100 places in the class.

Justice William H. Rehnquist: The University stipulated after the judgment of the Supreme Court of California didn't that it could not sustain the burden of proof and if he would have not been admitted under a different system.

Mr. Colvin: Yes, that is true.

There was not only a stipulation but what happened was that the Supreme Court of the State of California decided the case.

It had -- it decided the unconstitutionality of the quota.

We have argued back and forth through the trial court and through the Supreme Court the question of burden of proof.

Did Mr. Bakke have the burden of proving that he would have qualified or to the University at the burden of proving that he would not have qualified?

The original decision of the Supreme Court of California was a decision which said -- which agreed with this finding, and said, yes the burden of proof is on the University.

It's a -- it's a -- just like Franks versus Bowman Transportation, once you prove the discrimination, then the University has to prove that Mr. Bakke would not have been admitted even there though there had not been no such quota.

And the University then entered into a petition for rehearing and in the petition for rehearing, it entered into a stipulation and the stipulation is filed before the California Supreme Court and the stipulation is very brief, very brief.

It is hereby stipulated by the Regents of the University of California (the University) that it has produced all of the evidence available to it.

On the question of whether Mr. Bakke's failure to be admitted for the class -- entering the School of Medicine at the University of California Davis in September 1973 resulted from the operation of the Special Admissions Program.

The University concedes that it cannot the meet the burden of proving, the Special Admissions Program did not result in Mr. Bakke's failure to be admitted and without your taking your time, I will tell you that this is carried over to the petition for hearing, the stipulation is in exhibit to it and then the California -- the University says, the University has produced all of the evidence it has on the question and concedes as set forth in the attacked stipulation of Donald L. Reidhaar that it will not attempt to meet that burden of proof.

Mr. Bakke was a highly qualified applicant and came extremely close to admission in 1973 even with the special admissions program being in operation.

It cannot be clearly demonstrated that the special admission program did not operate to deny Mr. Bakke admission in that year and then upon receipt of the petition for rehearing with the stipulation attached to it, the California Supreme Court then did the logical thing instead of remanding the matter to Woodland and Yolo County for Judge Macar (ph) to make this determination and ordered Mr. Bakke into the medical school, he is presently ordered into the medical school and where it not for the stay in this case of course, he would be in the medical school.

Chief Justice Warren E. Burger: Your time is now expired, Mr. Colvin.

Mr. Colvin: Thank you very much.

Chief Justice Warren E. Burger: Mr. Cox, do you have something further?

Rebuttal of Archibald Cox

Mr. Cox: Chief Justice.

Justice Lewis F. Powell: Mr. Cox, before you commence your argument, may I inquire whether you agree with my understanding of the Solicitor General's position that it is -- the record is inadequate for the constitutional decision and should be remanded?

Mr. Cox: I do not agree.

I disagree and I develop the reasons if I may that was one of the points that I plan to address myself to.

I think perhaps I can be most helpful by trying to put the very particular points we covered in my argument, within a larger framework of my basic thinking.

The first main proposition that I would assert is that the racially conscious admissions program at Davis and any racially conscious admissions program designed to increase the number of minorities to their profession school, is fully consistent with both the letter and the spirit of the Fourteenth Amendment and I simply want to add one footnote to say that when I use the word race or racially conscious, I'm not speaking of race the way one would speak of a red-headed man, or a man that has some other mark that is sheer happenstance, that isn't the quality of race in our society today, and I'm really talking about all the things that have gone with race and the remnants of those things in terms of current soulful problems, that race is a shorthand for expressing.

Now, that main proposition the way it would develop and I'd simply state them in three points.

We say first that there is no perceived rule of color blindness incorporated in the Equal Protection Clause.

We say second that the educational, professional and social purposes accomplished by a race conscious admissions program are compelling objectives or to put it practically, they are more than sufficient justification, for those losses, for those problems that are created by the use of race.

We don't minimize them but we say that the cost is greatly outweighed by the gains.

And third, as I said my argument, we submit that there is no other way of accomplishing those purposes.

Now, this brings me to the point that the Supreme Court of California was wrong, that its judgment should be reversed because it said that under present circumstances, we may not take race into account, that's what Mr. Colvin pitched his case on, that's the proposition he presented below, he presented here, Justice Powell, he doesn't need any more facts on then.

He's either right or wrong as a matter of constitutional law or a statutory law if he goes back to the court below.

There is a further question, is there something about the use of the number 16 that renders this program peculiarly valid?

There are a lot of educational institutions that pursue minority admissions program but the admissions committee has instructed to get a good number, get a substantial number, get within the range of 10 to 20%.

Now, we submit that the method of putting the general policy into actual practice, the level at which somebody reduces into numbers is not a matter of constitutional dimension and for like reason, we say that the questions raised in the Solicitor General's brief are not matters of constitutional dimension.

They are details of admission programs and in both instances we urge that the -- this Court should not get the lower federal courts into being the supervisors of the admissions policies of certainly state and perhaps private institutions.

Justice Byron R. White: You wouldn't say that if the admissions committee suddenly decided that they wouldn't admit any black people.

Mr. Cox: No, but I'm suggesting that the details to which I was addressing myself where of a different order of magnitude, you have to decide whether we are right in saying that race may be taken into account for proper purposes, of course you will.

I do stress and even with respect to the main question but I think it's more important as one gets down to what I regard as detail such as this specific number.

I do stress two things.

One is the judicializing or constitutionalizing, the drawing of courts in, the writing of monolithic rules tends to dampen one of the great -- abandon one of the greatest sources of creativity in this country the opportunity in dealing with delicate sensitive and often painful.

It's not easy to turn down young men and women, and in dealing with those problems, we are wise to take advantage of the fact that there are 50 states, were wise to take advantage so far as the legislatures will allow it, of the fact that different campuses or different faculties are allowed to make up their own minds, and I think that to set a lot of rules that would draw the federal courts into scrutinizing the details of what is done would invite constant litigation and as I say it would abandon a source of creativity, it would destroy important autonomy in wrestling which with I argued and I'm sure all court recognize as an extraordinarily sensitive and difficult problem but a search for justice to all to which this country has always been committed and to which I'm sure is still is.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Print this transcript Transcript: 

Argument of Chief Justice

Mr. Justice: The judgment and opinion of the court in 76-811, Regents of the University of California against Bakke will be disposed in this way.

Mr. Justice Powell will announce the judgment of the Court.

There is no opinion of the Court supported by a majority and accordingly other justices will state their dissenting and concurring opinions in due course following them.

Argument of Justice Powell

Mr. Powell: As the Chief Justice has stated, I am authorized to announce only the judgment of the Court.

The facts in this case are too well known to be restated this morning.

Perhaps no case in modern memory has received this much media coverage and scholarly commentary more than 60 briefs were filed with the Court.

We also have received the advice through the media and commentaries of countless extra judicial advocates.

The case was argued some eight months ago and as we speak today with a notable lack of unanimity it maybe fair to say that we needed all of this advice.

In any event, there will be evident from the several opinions that the case intrinsically difficult as received the most thoughtful attention over many months.

So much for introduction as there are six separate opinions, I will state first the Court's judgment.

In so far, as the California Supreme Court held that Bakke must be admitted to the Davis Medical School, we affirm.

In so far, as the California Court prohibited Davis from considering race as a factor in admissions, we reverse.

I will not try to explain how we divided on these issues.

This may not be self-evident from a high to examination of various opinions.

The decision of the California Court presented us with two central questions.

The first and the one widely perceived as the only ultimate question is whether the special admissions program discriminated unlawfully against Bakke either under the Constitution or under Title VI of the Civil Rights Act of 1964.

I will refer to this as the Bakke admissions question.

The second and broader question is whether it is ever permissible to consider race as a factor relevant to the admission of applicants to a State University.

I will refer to this question generally as whether race maybe considered.

As we will be perceived at this point, if the answer to the second question were negative, i.e. that race may never valid that they considered this answer disposes of both issues.

Bakke would be admitted and the University could not in the future give any consideration to race in its admission program.

If however, the second question were answered affirmatively, i.e. that race maybe considered, then it becomes necessary to address the first question separately, i.e. whether the special admissions program at Davis is compatible with Title VI and with the Constitution.

I have mentioned both Title VI often referred to as a statutory issue and the Constitution under which is presented the equal protection issue arising under the Fourteenth Amendment.

The case is further complicated because if it were disposed of under Title VI there would be no occasion to reach the constitutional issues.

I will now state more specifically how the questions are decided.

The Chief Justice and Justices Stewart, Rehnquist and Stevens in an opinion authorized by Mr. Justice Stevens have concluded that the only question before us is whether Bakke was unlawfully excluded from the medical school because of his race.

In that view Congress has answered that question in Title VI.

They would affirm the judgment of the California Court without addressing the question whether race may ever be considered as a factor in an admissions program.

Justices Brennan, White, Marshall, Blackmun and I have a different view as to Title VI.

We believe despite as more detailed provisions that it goes no further in prohibiting the use of race than the Equal Protection Clause.

The five of us therefore reach both of the constitutional questions.

On a constitutional analysis founded it on the Equal Protection Clause, Justices Brennan, White, Marshall and Blackmun in that giant opinion hold not only that race properly maybe considered but also that the special admissions program of the Davis Medical School is valid in every respect.

When I have concluded Mr. Justice Brennan will state disposition more fully, Mr. Justice Marshall and Mr. Justice Blackmun also will make statements.

As I agree that Title VI does not dispose of this case, I also address the constitutional questions.

On the first of these whether the special admissions program as invalid.

I agree with the result reached by Mr. Justice Stevens' opinion.

But I do so on constitutional grounds rather than under Title VI.

Thus, there are five votes to affirm the judgment in validating the special program.

Under this judgment, Bakke will be admitted to the Medical School.

As to the second constitutional issue, whether race maybe considered as a factor in an admissions program, I agree with the result reached by the join opinion of Mr. Justice Brennan and my brothers who have joining him.

Thus, there are five justices who joined on a judgment of reversal on this issue.

But the process of constitutional analysis by which I reach this result differs significantly from that of the four justices who have filed a joint opinion.

As my reasoning is set forth fully in my written opinion and as other justices will speak, I will merely make a brief conclusary summary.

The Davis' special admissions program with 16 at 100 seats reserved exclusively for three categories of a unities is a classification based on race.

Now our cases established beyond question that a racial classification by a state agency is inherently suspect and must be subjected to the most exacting judicial scrutiny.

Although adapted primarily to protect persons of the Negro race, the guarantee of the Equal Protection Clause by its terms protects all persons.

It provides explicitly that no person shall be denied equal protection of the law.

Despite this absolute language, our cases have held that some distinctions are justified if necessary to further a compelling state interest.

Davis relies on several interest thought to be compelling.

One is the desire to address racial imbalance said to result from general societal discrimination against the minority groups selected for preferential treatment.

But there is a complete absence on this record of any finding that this imbalance is traceable to discriminatory practices.

Discrimination by society at large with no determined the effects is not sufficient to justify petitioner's racial classification.

In my view, the only state interest that fairly maybe viewed as compelling on this record is the interest of a University in a diverse student body.

This interest encompass within the concept of academic freedom is a special concern of the First Amendment but there has been no showing in this case that the Davis' special program is necessary to achieve educational diversity.

The Davis' program totally excludes all applicants who are not Negro, Asian, or Chicano from 16 of the 100 seats in an entering class.

No matter how strong that qualifications, qualitative and quantitative including their own potential for contributing to educational diversity they are not afforded the opportunity to compete with the applicants from the preferred groups for those 16 seats.

At the same time the preferred applicants have the opportunity to compete for every seat in the class.

A university's interest in a diverse student body is not limited to ethnic diversity, rather it is compelling interest in this respect encompasses a far broader array of qualifications and characteristics of which race is only one.

I refer in my opinion to the Harvard admissions program as one example of how race properly in my opinion maybe taken into account.

I will quote briefly from the description of the Harvard program a copy of which is in the appendix to my opinion and here I quote the in substance.

The admissions committee has not set target quotas for the number of blacks or musicians, football players, physicist, or Californians to be admitted in a given year.

Awareness of a need for diversity means only that in choosing among thousands of academically qualified applicants, the committee, with a number of criteria in mind, pays some attention to the distribution that should be made among many types and categories of students.

Thus, race is considered in a flexible program designed to achieve diversity but it is only one factor weighed competitively against the number of other factors being relevant.

Under such a system each applicant is treated as an individual regardless of race and is considered in competition for each seat in the class.

As a briefs in this case and the literature in this area abundantly illustrate.

Many of our finest universities and colleges pursue a flexible competitive admissions program in which race maybe considered as a relevant factor.

This experience demonstrates that the Davis type program one that arbitrarily forecloses all competition solely on the basis of race or ethnic origin is not necessary to attain reasonable educational diversity.

In my view, it therefore violates the Equal Protection Clause in the most fundamental sense.

Yet, the way is open to Davis to adapt the type of admissions program proved to be successful in so many of the universities and colleges of our country.

Argument of Justice Stevens

Mr. Stevens: The University of California through its special admissions policy excluded Allan Bakke from participation in its program of medical education because of his race.

The Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist and I are of the opinion that that action violated Title VI of the Civil Rights Act of 1964.

Section 601 of that Act prohibits the exclusion of any person on the ground of race from any program receiving federal financial assistance.

The Davis Medical School is such a program.

The language of the statute is a exceptionally plain.

It provides "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

The legislative history of the statute makes it clear that Congress meant exactly what it said.

During the lengthy debates, opponents of the legislation express the concern that the Act would be read as mandating racial quotas in racially balanced colleges and university.

In response, those supporting the legislation gave repeated assurances that the Act would be color blind in its application.

One supporter of the Act express disposition in these words, "The basic fairness of Title VI is so clear that I find it difficult to understand why it should create any opposition.

Private prejudice to be sure cannot be eliminated overnight.

However, there is one area where no room at all exists for private prejudices.

That is the area of governmental conduct.

As the first Mr. Justice Harlan said, in his prophetic dissenting opinion in Plessy against Ferguson, "Our constitution is color blind".

So I say the Senators must be our Government.

Title VI closes the gap between our purposes at the democracy and our prejudices as individual.

The cuts of prejudice need healing.

The costs of prejudice need understanding.

We cannot have hostility between two great parts of our people without tragic loss in our human values."

In words it would be paraphrased and repeated throughout the congressional debate.

Senator Pastore, the Floor Manager of the bill clearly stated the intent of Congress.

Title VI will guarantee that the money collected by color blind tax collectors will be distributed by federal and state administrators who are equally color blind.

We cannot ignore the plain language in the legislative history and in the statute itself.

The simple rule set forth in the statute is not qualified by any words that say in substance that the prohibition against racial discrimination shall apply only if the racial discrimination is also unconstitutional.

In order to interpret this unusually clear color blind statute, there is no need to decide whether the Constitution is also color blind.

During other provisions of the Civil Rights Act of 1964, the Court has held that the statute has a meaning of its own that is not necessarily congruent with any constitutional standard.

Thus, for example, in Washington and against Davis, an employment discrimination case arising under Title VII, the Court stated: "We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standard applicable under Title VII", and we declined to do so today.

And in other Title VII cases, the Court has also squarely held that the statute prohibits racial discrimination against white petitioners upon the same standard as would be applicable were they Negroes.

Quoting from our earlier decision in Griggs against Duke Power, the Court reaffirmed the principle that the statute prohibits discriminatory preferences for any racial group minority or majority.

But the University argues that regardless of the principle of non discrimination established by Title VI, an individual who was injured by a violation of Title VI has no standing to litigate his claim in court.

This contention was not raised until oral argument before us and has been repeatedly and consistently rejected in cases both in this Court and other where individuals have raised claims similar to Bakke.

In the context of this case we find no merits in the argument that Bakke has no standing to assert his statutory claim.

Two questions remain.

First even though the statutory ground of decision in this case is dispositive, is it appropriate to discuss any constitutional issues presented by the case.

The Court has repeatedly given the same answer to this question.

To quote only one such answer Spector Motor against McLaughlin.

"If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality unless such adjudication is unavoidable."

The more important the issue, the more force there is to this doctrine.

In our view, we have a clear duty to avoid unnecessary discussion of constitutional question.

Finally, should the Court volunteer its views about the University admissions program other than the one which resulted in the rejection of Bakke's application?

Again the answer is plain.

It is well settled that this Court reviews judgments not statements in opinion.

This lawsuit is between two specific litigants, Allan Bakke and the Regents of the University of California.

The judgment now before us as we explained in our opinion declares that the University's special admissions program was unlawful and orders that Bakke be admitted to the Medical School.

The specific holding of the California Supreme Court that is under review in this case is limited to the conclusion that the special admissions program employed by that university was unlawful.

No other issue remains in the case.

Just as we have a duty to decide that issue, so to we have a duty equally strong and equally engrained in the constitutional structure of our government to avoid discussion of important issues not presented by the controversy before us.

75 years ago, in one of his classic dissenting opinion, Mr. Justice Holmes observed that in great cases the interest at stake generates a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well-settled principles of law will bend.

Not withstanding the pressure that tempt does to speak about other issues, well-settled principle dictate a course of judicial restraint.

For these reasons, the Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist and I have concluded that the Court should simply affirm the judgment of the California Supreme Court.

To the extent that the Court today purports to do anything else, we believe it exceed its proper judicial remold.

Argument of Justice Brennan

Mr. Brennan: As my brother Powell has already said, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun and I have filed a jointly signed opinion supporting our view that the judgment of the California Supreme Court should be reversed in all respects.

Not only and so far as it prohibits the university from establishing race conscious programs in the future but also in so far as the the judgments orders that respondent Bakke be admitted to the Davis Medical School.

As this apparent from the statements of both my brother Powell and my brother Stevens, all nine members of the Court addressed the threshold question of statutory constructs and a majority consisting of Mr. Justice Powell and the four of us construe the statute as going no further in prohibiting the use of race than the Equal Protection Clause itself.

Now that then is the law of statutory construction for the purposes of this case.

Although it may strikes sound as unusual that is the dissenters' to make construction, rest their affirmance of the California Supreme Court on their construction of Title VI that is not the law having been rejected by a majority of the Court, the dissenters have chosen not to address the constitutional question required by the majority's controlling construction namely whether the Davis program violates the Equal Protection Clause.

And our brother Powell as he has said also affirms the California Supreme Court in so far as the directed Bakke's admission but on the ground even though I know I am repeating that make itimportant to be emphasized reaching the Constitution Davis' special admissions program is unnecessary, in his view that the achievement of the compelling goal in achieving a diverse student body.

Though in consequence only five member of the Court addressed the constitutional question of unique paramount importance that this case presents.

What race conscious programs are permissible under the Equal Protection Clause?

Although it is no secret that the Court took this case as the vehicle for confronting that issue after avoiding it on loop in these grounds in the defendant's case.

But the fact that only five of us addressed the constitutional question must not obscure the signal importance of today's decision on the constitutional question.

Five of us, a Court majority, reversed the judgment of the California Supreme Court in so far as it prohibits Davis from establishing race conscious admissions program in the future.

Thus, the central meaning of today's opinions is this, government may take race into account when an acts not to demean or insult any racial group but to remedy disadvantages caused by minorities by past racial and prejudice at least when appropriate findings have been made by judicial legislative or administrative bodies with confidence to act in this area.

Now the opinion of the four of us is some 55 pages and of course I shall only briefly touch upon its highlights.

The first half addresses the threshold question of the construction of Title VI although the dissenters have the view that there is a private right of action under Title VI.

Three of the four of us agree with our brother Powell that this case does not require us to decide that question.

Our brother White, however, believes we should address it and accordingly he has filed a separate opinion stating his view that there is no private right of action under Title VI.

The rest of our statutory construction discussion canvasses in great detail the legislative history that contrary to the view just expressed by my brother Stevens.

In our view establishes beyond question, the Title VI was not intended to bar state affirmative action problems not barred by the Equal Protection Clause itself.

In other words, the legislative history contrary to the dissenters' reading provides no support for the preposition that Congress intended to impose statutory limitation upon constitutionally permissible racial preferences designed to extend the benefits of federally financed programs for racial minorities that historically have been excluded from the full benefits of American life as a result a racial discrimination.

In sum, in our brother Powell's words in his opinion and I quote them, "In view of the clear legislative intent Title VI must be held to prescribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment."

My discussion of the constitutional question takes up the second half of our opinion.

It opens with a history of our national betrayal of our founding principle that all men are created equal.

Candor requires acknowledgments that the Framers of our Constitution, to forge the 13 colonies into one nation openly compromised this principle of equality with its antithesis slavery.

The consequences of this compromise are well-known, they have been aptly called our "American Dilemma".

Thus, we think it well to recount how brief the time has been if it has yet come when the promise of our principles has flowered into the actuality of equal opportunity for all regardless a race or color.

The Fourteenth Amendment, the embodiment in the Constitution of our abiding belief in human equality has been the law of our land for only slightly more than half of our 200 years as a nation, and for half of that half the Equal Protection Clause of the Amendment was largely moribund.

Worse, the Clause was early turned against those whom it was intended to set free condemning them to a separate but equal status before the law, a status always separate but seldom equal.

Not until 1954, only 24 years ago, where this odious doctrine entered by our decision in Brown v. Board of Education.

Brown won and its progeny which proclaimed that separate schools and public facilities of all sorts are inherently unequal and forbidden under our Constitution.

Even then inequality was not eliminated with all deliberate speed.

In 1968 and again in 1971 we were forced to remind school boards with their obligation to eliminate racial discrimination root and branch, and a glance to our docket and those of lower courts even today will show that officially sanctioned discrimination is not a thing of the past.

Against this background claims that law must be color blind or that the datum of races no longer relevant to public policy must be seen as aspiration rather as description of reality.

This is not to denigrate aspiration; but reality rebukes us that race has often been used by those who was stigmatized and oppress minorities.

Yet, we cannot and as our opinion attempts to demonstrate need not under our Constitution like color blindness become myopia which masks the reality that many created equal have been treated within our lifetimes as inferior both by the law and by their fellow citizens.

The assertion of human equality is closely associated with the preposition that differences in color or creed, birth or status are neither significant nor relevant to the way in which persons should be treated.

Nonetheless, the position that such factors must be constitutionally an irrelevance summed up by the shorthand phrase, "our Constitution as color blind", has never been adapted by this Court as the proper meaning of the Equal Protection Clause.

Our opinion cites numerous decisions of this Court, school desegregation cases, gender discrimination cases.

Decision sustaining affirmative action programs of the Congress and federal agencies, supporting the conclusion that nothing whatever in the history of the Fourteenth Amendment of the Civil Rights Act even remotely suggests that the states are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and these acts are addressed.

Our opinion next turns to the program of what the judicial role should be in reviewing state action that expressly classifies by race for remedial purposes as does the Davis' program.

Respondent Bakke argues that racial classifications are always suspect, and consequently that this Court should weigh the importance of the objectives servied by Davis' affirmative admission program to see if they are compelling.

In addition, he asserts this Court must inquire whether in its judgment there are alternatives other than racial classifications which would suit Davis' purposes.

The University on the other hand states that our proper role is simply to accept its determination that the racial classification used by its program are reasonably related to what it tells us are its benign purposes.

Our opinion adapts a standard somewhere in between.

Because of the significant risk that racial classification established ostensibly benign purposes can be misused causing effects not unlike those created by invidious classification.

It is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification.

Rather to justify such a classification an important and articulated purpose for its use must be shown.

In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented on the political process, the bear the brunt of a benign program.

Thus, our review under the Fourteenth Amendment should be strict, not strict in theory and fatal in fact because it is stigma that causes fatality but strict in searching nonetheless.

The opinion next analyzes the Davis program by that standard and concludes that it passes constitutional master as a permissible programs to remove, the disparate racial impact its admissions program might otherwise have and with adapted on the basis of the reasonable belief that disparate impact is itself, the product of past discrimination whether the universities or that of society at large.

It is not even claimed that the Davis program operates to stigmatize or single out any discreet and inferior or even any identifiable non minority group.

Bakke was not in any sense stamps as inferior but the Medical School's rejection of him, indeed it considered by already satisfied those criteria regarded by the school that it generally relevant to academic performance but as in most of the minority members were admitted.

In addition, there are simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group, which it supports the benefits.

The program does not establish a quota in the invidious sense of a sealing on the number of minority applicants to be admitted nor can the program reasonably re-regarded as stigmatizing the programs beneficiaries or that race as inferior.

It is uncontested that Davis admits only those minority applicants in its special program who are fully qualified to study Medicine.

Once admitted these students must satisfy the same degree requirements as regularly admitted students, they are taught by the same faculty in the same classes, and their performance is evaluated by the same standard by which regularly admitted students are judged.

Under these circumstances their performance and degree must be regarded equally with the regularly admitted students with who may compete for standing.

Our opinion finally comes to our reasons for disagreeing that the set aside of 16 places under the Davis program requires the conclusion that Bakke was unconstitutionally denied admission.

Davis' special admissions program cannot, in our view, be said to violate the Constitution simply because they have set aside a predetermined number of places for qualified minority applicants rather than, as does the Harvard program approved by our brother Powell, using race as a positive factor to be considered in evaluating the applications of disadvantaged minority applicant.

We think that for purposes of constitutional adjudication there is simply no difference between the two approaches.

It is inescapable that in any admissions program which extends a preference to disadvantaged racial minorities a decision must be made as to how much of the preferences to be given and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis.

Furthermore, the extent of the preference inevitably depends on how many on minority applicants to a particular school are seeking to admit in any particular year.

There is no sensible and certainly no constitutional distinction as we see it.

Between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of a preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such qualified applicants as was done here.

The Harvard program as those employing it readily concedes openly and successfully employs a racial criterion for the purpose of ensuring that some of the scariest places in the institution to higher education are allocated to disadvantaged minority students.

That the Harvard approach does not also make public the extent of the preference and the precise working of the system while the Davis program employs a specific openly stated number does not, in our view, condemn the latter plan for purposes of the Fourteenth Amendment, it maybe that the Harvard plan is more acceptable to the public generally than is the Davis program.

If it is, any state including telethon is free to adapt it in preference to a less acceptable alternative just as it is generally free as far as the Constitution is concerned to abjure granting any racial preferences in its admissions program.

But there is no basis for preferring a particular preference program simply because in achieving the same goals that the Davis Medical School is pursuing it proceeds in a manner that is not immediately apparent to the public.

Argument of Justice Blackmun

Mr. Blackmun: Mr. Justice Powell has stated that this case is intrinsically difficult, perhaps so perhaps not.

I suspect it for those four members of the Court who find the Title VI issue controlling the case really is not very difficult.

But for the five of us who feel yhsy Title VI does not provide the answer the case has much deeper and more profound ramifications.

This case like the death penalty issues that had been before the Court in years last passed like the abortion cases, like the schools desegregation cases has caught the popular interest and the people's deep concern.

Like each of those it finds the people as well as Justices divided in their innate reactions.

Strands of heritage and strands of emotion and strands of presumption, all are flat.

For me this case is distinctly a constitutional and not as statutory case, and because it is I have joined my brothers Brennan and White and Marshall in the opinion Mr. Justice Brennan has just described.

What I have written separately I believe and I hope is complimentary to what is said in the opinion for the four of us.

I emphasized, however, a number of very general factors.

First, until just a few years ago in the early 1970s a very small number, less than 2%, of all the physicians and all the attorneys and all the students in medical and law schools in this country were members of what we refer to as minority groups.

And in addition to this factor almost three quarters of our Negro physicians were trained at only two medical schools, Harvard here in Washington and Meharry in Nashville, Tennessee.

If ways are not found to remedy that kind of situation the country will never achieve its professed goal of a society that is not race conscious.

Second, I am optimistic that that remedy will be forthcoming and I am optimistic that we shall see a time when race consciousness is a far less significant factor in our national life that it is today.

When that time will come I do not know but when it comes, the affirmative actions so-called a reversed discrimination will be a thing of the past.

Third, in this case we are considering not a demarcation between the qualified on the one hand and the unqualified on the other but we are considering a process of selection among those who are qualified to go to medical school.

It follows when all those qualified cannot be admitted as it sadly the case today but there is a denial to the deserving.

This inescapable fact is brought under sharp focused here because Allan Bakke is not himself charged with discrimination and yet he is one who is disadvantaged and because the medical school of Davis itself was not charged historically with discrimination.

Next, for me there is no particular or very real significance in the 84-16 division of Davis.

The same legal and constitutional considerations necessarily apply if the Davis special administration program had focused on any lesser number that is on 12 or 8 or 4 or indeed on only one place.

It is somewhat ironic to have a so deeply disturbed by this case, which concerns a program where race is an element of consciousness, and yet for all of us to be aware of the fact and to know that our institutions of higher learning long have given and still do give conceded preference up to a point to accomplished or promise in athletes, to children of alumni, to the affluent and to those who have connections with celebrities and the famous and the powerful.

Next, it seems to me that programs of admissions are basically a responsibility for the academicians.

The judiciary is ill-equipped and poorly trained for this task.

Many event of a university or of a professional school is within the special competence of educators.

The deference by the judiciary, therefore, must be the rare exception and not the rule.

Next, I agree with Mr. Justice Powell that today's philosophical conception of the Fourteenth Amendment as he has set forth in his opinion embraces a so-called brother principle that the Amendment did when it was adapted in 1868, 110 years ago.

But for me that enlargement does not mean that the Fourteenth Amendment has broken away from its moorings and from its original intended purpose.

Those original aims still persist and that in the distinct sense is what affirmative action is all about if this conflicts with idealistic equality or with pure equal protection.

Any such tension of that kind is original Fourteenth Amendment tension and it is constitutionally conceived and constitutionally proposed.

I am not convinced as Mr. Justice Powell is that the difference between the Davis program and those employed by the amici here Harvard and Stanford and Pennsylvanian and Columbia is constitutionally significant.

Certainly the line between the two is a thin one, and I say this because in each program subjective application is at work.

I do agree that the Harvard type program where race or ethnic background is only one of many factors, is a program probably better formulated than the two track system at Davis and yet the cynical may say that under the Harvard program one may accomplished covertly what Davis says it does openly.

I think it is worth noting that governmental preference is not a stranger to our legal life.

We certainly see it in veteran's preference or legislation.

We see it in the aid-to-the-handicapped programs.

We see it in the progressive income tax.

We see it in the Indian programs.

We accept some of these on the ground that they have special constitutional protection or as with Indians that they are words of the government.

Nevertheless, the preferences exist and we have accepted them.

I suspected it would be impossible to arrange an affirmative action program in a racially neutral way and to have it successful.

That almost demands the impossible.

In order to get beyond racism, we must first take account of race and in order to treat some persons equally we must treat them differently.

We cannot and I think we dare not let the Equal Protection Clause of all the provisions in the Constitution perpetuate racial supremacy.

And so for me the ultimate question that it was at the very beginning and is this, among the qualified how does one choose?

In putting that on the framework of constitutional considerations and requirements it seems to me that we get back to the basics.

Not to risk have been repetitious, I think it brings back with a very great Chief Justice known as the Great Chief Justice said a long time ago.

Well, he pointed the way.

In considering this question then we must never forget that it is a Constitution we are expounding and later in McCulloch against Maryland, he went on in words that I think are particularly appropriate for this case.

"Let the end be legitimate, let it be within the scope of the Constitution and all means, all means were which are appropriate, which are plainly adapted to that end which are not prohibited but consist with the letter and the spirit of the Constitution are constitutional."

More recently one destined to be a Justice of this Court said this, "The great generalities of the Constitution have content and a significance that vary from age to age."

Well, those are precepts of breadth and flexibility and ever present modernity so far as our Constitution is concerned.

They are precepts basic to our constitutional law.

And today again, for the four of us anyway and the five others I think we expound the Constitution in the same principles that governed McCulloch case in 1819, governed Bakke's case in 1977 and '78.

For me, there could be no other answer and there is no alternative.

Argument of Justice Marshall

Mr. Marshall: In some of what I have to say will be repetitious when I feel oblige to say it.

I agree with the judgment for this Court only in so far as it permits the University to consider the race in making admissions decision.

I do not agree the petitioner's admissions program violates the Constitution or it must be remembered that during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro.

Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

Three-hundred-and-fifty years ago the Negro was drag to this country in chains to be sold into slavery and the system of slavery brutalized and dehumanized master and slave.

An implicit protection of slavery was embodied in the Declaration of Independence and was made explicit in the Constitution.

The individual states likewise have established machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave.

The position of the Negro slave as mere property was then confirmed by this Court in Dred Scott against Sandford.

The status of the Negro as property was officially erased by his emancipation at the end of the Civil War.

But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way.

Despite the passage of the Thirteenth, Fourteenth and Fifteenth Amendment, the Negro was systematically denied the rights that those amendments were supposed to secure.

The combined actions and inactions of the State and Federal Governments maintained Negroes in a position of legal inferiority for another century after the Civil War.

The Southern states took the first steps.

They immediately following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and permitted imprisonment for breach of employment contracts.

Congress responded to these legal disabilities by enacting the Reconstruction Acts and the Civil Rights Act.

Thus, for a time back there, it seemed as if the Negro might be protected from the continued denial of his civil rights, and might be relieved of the disabilities that prevented him from taking his right for place as a free and equal citizen.

That time, however, was short lived.

Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights.

The Court began by interpreting the Civil War Amendments in a manner that sharply could curtail their substantive protections.

Then in the notorious Civil Right Cases the Court strangled Congress' efforts to use its power to promote racial equality.

The Court's ultimate blow to the Civil War Amendments and to the equality of Negroes was of course Plessy against Ferguson.

In remodeling that Louisiana law they said that, "equal but separate accommodations for whites and Negroes.

The court held that the Fourteenth Amendment was not intended to abolish distinctions upon color or to enforce social as distinguished from political equality or commingling of the two races upon terms unsatisfactory to either."

Ignoring totally the realities of position of the two races.

Mr. Justice Harlan's dissenting opinions recognized the bankruptcy of the Court's reasoning.

He expressed his fear that, if like laws were enacted in other States, "the effect would be in the highest degree mischievous."

The fears of Mr. Justice Harlan were soon to be realized.

In the wake of Plessy many states began to expand their Jim Crow laws, which had, up until that time, been limited primarily passenger trains and schools.

The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms, you name it.

The enforced segregation of the races continued into the middle of the 20th century.

In both World Wars, Negroes were, for the most part, confined to separate military units; it was not until 1948 that an end to segregation in the military was ordered by President Truman.

And the history of the exclusion of Negro children from white public schools is too well known and recent to require repeating here.

That Negroes were deliberately excluded from public graduate and professional schools -- and thereby denied the opportunity to become doctors, lawyers, engineers, and the like is also well established.

The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment.

Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.

A Negro child today has a life expectancy which is shorter by more than five years than that of a white child.

That is today.

The median income of the Negro family is only 60% of the median of a white family, and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites.

Today, when the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart.

For Negro adults, the unemployment rate is twice that of whites, at least whites, and the unemployment rate for Negro teenagers is three to four times that of white teenagers.

I am talking about today.

The relationship between these figures and the history of unequal treatment offered to the Negro cannot be denied.

And I even heard it deny.

At every point from birth to death, the impact of the past is re-elected to the still disfavored position of the Negro.

In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order.

To fail to do so is to ensure that America will remain a divided society.

I do not believe that the Fourteenth Amendment requires us to accept that fate.

Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors in this country.

The experience of Negroes in America has been different in kind, not just in degree, from entity of the ethnic groups.

It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law, and that that mark has endured.

The dream of America as the great melting pot has not been realized for the Negro; because of his skin color, he never even made it into the pot.

These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.

In the Civil Rights Cases this Court wrote that a Negro emerging from slavery must cease "to be the special favorite of the laws".

We cannot, in light of the history of the last century, yield to that view.

Had this Court been willing in 1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based on race, we would not be faced with this dilemma in 1978.

We must remember, however, that the principle that the "Constitution is colorblind" appeared only in the dissenting opinion, the majority of that Court rejected the principle of color blindness and for the next 60 years from Plessy to the Board of Education ours was a nation where,by law, an individual could be given special treatment based on the color of his skin.

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, prestige and influence in America.

For far too long, the doors to those positions have been shut to Negroes.

If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors.

I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible.

It had been said that this case involved only the individual Bakke and nobody else.

And on the other hand it says it only involves Davis University.

I doubt, however, that there is a computer capable to determining the number of person in institutions that may be affected by the decision in this case today.

For example, we are told by the Attorney General of the United States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds to take "affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin."

I cannot even guess the number of state and local governments that has set up similar affirmative action programs, which may be affected by today's decision.

I for one fear that we have come full circle.

After the Civil War, our Government started several affirmative action programs.

This Court, in the Civil Rights Cases and Plessy against Ferguson, destroyed the movement toward complete equality through affirm the actions.

And then For almost a century, no action was taken, and this nonaction was with the tacit approval of the courts.

Then we had Brown versus Education and the congressional Civil Rights Act followed by numerous affirmative action programs.

But now today we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California.

In doing so, I cannot go along.

Rebuttal of Chief Justice

Mr. Justice: Thank you gentlemen.