Regents of the University of California v. Bakke – Oral Argument – October 12, 1977

Media for Regents of the University of California v. Bakke

Audio Transcription for Opinion Announcement – June 26, 1978 in Regents of the University of California v. Bakke

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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.

Archibald 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.

Lewis F. Powell, Jr.:

Mr. Cox, is there something in the record indicating who — who proposed or adopted the Task Force Program?

Archibald 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 —

Lewis F. Powell, Jr.:

But he wasn’t — he wasn’t there then, was he?

Archibald 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 —

Lewis F. Powell, Jr.:

Is there anything in the record indicating the approval of the Regents other than the fact they’re defendant – they are defendant —

Archibald Cox:

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

Lewis F. Powell, Jr.:

Thank you.

Archibald 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.

It did put a limit on the number of white people, isn’t it?

Archibald 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.

But it did put a limit on their number?

Archibald Cox:

It —

In each class?

Archibald Cox:

I’m sorry.

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

Archibald 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?

Lewis F. Powell, Jr.:

Do you agree then that there was a quota of 84?

Archibald Cox:

Well, I would deny that it was the quota.

Archibald Cox:

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 —

Lewis F. Powell, Jr.:

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?

Archibald Cox:

I would say — I would say that neither is properly defined as a quota.

Lewis F. Powell, Jr.:

And then why not?

Archibald 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.

John Paul Stevens:

Mr. Cox —

Archibald Cox:

And so that —

John Paul Stevens:

Mr. Cox, the facts are not in dispute the — does it really matter what we call as program?

Archibald 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.

Archibald Cox:

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?

Harry A. Blackmun:

Mr. Cox, is it the same —

Archibald Cox:

We think it’s this important?

Harry A. Blackmun:

Mr. Cox —

Archibald Cox:

And that’s the significance of —

Harry A. Blackmun:

Mr. Cox, is it the same thing as an athletic scholarship?

Archibald Cox:

Well, I —

Harry A. Blackmun:

So many places reserve for athletic scholarships?

Archibald 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.

John Paul Stevens:

Yes, it’s the aim of most institutions, isn’t it?

Not just some?

Archibald Cox:

Yes.

But they have of athletic?

John Paul Stevens:

Yes.

Archibald Cox:

Well, I come from Harvard sir.

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

John Paul Stevens:

But I can remember the time when — Mr. Cox, I can remember the time when you did if —

Archibald Cox:

Yes.

Yes, you’re quite right.

Archibald Cox:

Well, —

Warren E. Burger:

Mr. Cox —

Archibald Cox:

Maybe I better stop.

I can almost too.

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?

Archibald 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.

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?

Archibald 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.

Lewis F. Powell, Jr.:

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 —

Archibald Cox:

Well, I — I’ve — the number 16 here is not in any way linked to population in California.

Lewis F. Powell, Jr.:

23% I think of —

Archibald Cox:

And this was 16 —

Lewis F. Powell, Jr.:

Yes.

Archibald 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.

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?

Archibald Cox:

No, I think it is not at all relevant.

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 —

Archibald 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.

Harry A. Blackmun:

In the special program?

Archibald Cox:

That the — nothing was added to a benchmark rating because one was a member of a minority.

Harry A. Blackmun:

Well, does that suggest that the benchmark ratings in the two programs are comparable?

Among the —

Archibald 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, —

Warren E. Burger:

Mr. Cox —

Archibald Cox:

Yes.

Warren E. Burger:

— the 23% that or if you haven’t finished answering Mr. Justice Brennan, please —

Archibald Cox:

I was going on —

Warren E. Burger:

Go ahead.

Archibald Cox:

— just little further.

Alright.

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

Archibald Cox:

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.

Warren E. Burger:

Please, go ahead.

Archibald 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, —

Warren E. Burger:

Mr. Justice Powell referred to a figure of 23% minority does that conclude Orientals in California?

Archibald Cox:

I think it does, yes.

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?

Archibald 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.

Warren E. Burger:

And what particular holdings do you refer to that?

Archibald 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.

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?

Archibald Cox:

There are no —

Warren E. Burger:

Probably hire them and in any of the other categories.

Archibald 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 —

Lewis F. Powell, Jr.:

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?

Archibald 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.

Lewis F. Powell, Jr.:

Do you think it’s not before the Court even though the trial court made a finding?

Archibald 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.

Lewis F. Powell, Jr.:

Two of the amicus argued — two of the amicus argue the Title VI — Title VI question you know.

Archibald Cox:

I realize they do but it wasn’t — it wasn’t included in any of the questions presented or it wasn’t —

Lewis F. Powell, Jr.:

Do you think is it necessary when a ruling one way would support the judgment below?

Archibald Cox:

Well, I believe the court has indicated that it is necessary for it to be raise in the —

Lewis F. Powell, Jr.:

Well, couldn’t the respondent – couldn’t the respondent urge it to support the judgment?

Archibald 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.

Harry A. Blackmun:

I’d be interested in that case if you have a citation.

He has it.

(Inaudible)

Archibald 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 —

Potter Stewart:

Was it clear on the record that the — this institution is within the coverage of Title VI?

Archibald 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.

Harry A. Blackmun:

There’s a finding to that effect.

Archibald 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 —

William H. Rehnquist:

Mr. Cox —

Archibald Cox:

— been adequately covered because we didn’t think it was in the case.

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.

Archibald 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 —

Byron R. White:

But do you perhaps you know whether the Title VI question was presented to the California Supreme Court —

Archibald Cox:

It was pleaded.

Byron R. White:

Well, to the — in the California Supreme Court, was it argued in there?

Archibald Cox:

Yes.

Archibald Cox:

Well, the briefs do in composite very briefly.

Byron R. White:

It was presented but just not decided.

Archibald 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.

John Paul Stevens:

May I go back —

Archibald Cox:

Yes, Mr. 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?

Archibald Cox:

That is my understanding —

John Paul Stevens:

There’s a record —

Archibald 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.

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?

Archibald 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.

Archibald Cox:

And we think that these —

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?

Archibald 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.

Harry A. Blackmun:

Let me — let me make my —

Archibald Cox:

Shutting out of participation —

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?

Archibald 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.

Lewis F. Powell, Jr.:

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?

Archibald 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.

Warren E. Burger:

Are you going to address the question of other alternatives Mr. Cox?

Archibald 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.

Archibald Cox:

It just seems —

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 —

Archibald 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?

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.

Archibald Cox:

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

Warren E. Burger:

I’ll give you probably about seven minutes altogether.

Archibald Cox:

Thank you very much.

Warren E. Burger:

Mr. Solicitor General.

Wade H. McCree, Jr.:

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.

Wade H. McCree, Jr.:

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.

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?

Wade H. McCree, Jr.:

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.

Warren E. Burger:

Including — do you include in that conduct outside the State of California?

Wade H. McCree, Jr.:

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.

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?

Wade H. McCree, Jr.:

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.

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?

Wade H. McCree, Jr.:

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

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.

Harry A. Blackmun:

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?

Wade H. McCree, Jr.:

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.

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?

Wade H. McCree, Jr.:

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.

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?

Wade H. McCree, Jr.:

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.

Warren E. Burger:

29% is substantially higher than their proportion of the total population is that so?

Wade H. McCree, Jr.:

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.

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?

Wade H. McCree, Jr.:

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.

Lewis F. Powell, Jr.:

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

Wade H. McCree, Jr.:

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

Lewis F. Powell, Jr.:

Well, that goes to the merits.

Should we or should we not address it?

Wade H. McCree, Jr.:

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.

Wade H. McCree, Jr.:

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 —

Lewis F. Powell, Jr.:

Of course he may — he may still urge it.

Wade H. McCree, Jr.:

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.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Colvin.

Reynold H. 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 —

Potter Stewart:

You spoke Mr. Colvin of the right to admission; you don’t seriously submit that he had a right to be —

Reynold H. 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.

Reynold H. Colvin:

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.

William H. Rehnquist:

But no one is charging you with laches here, Mr. Colvin.

Reynold H. 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 —

Thurgood Marshall:

Am I correct that Dr. Lowrey was not dean when this —

Reynold H. Colvin:

No.

Thurgood Marshall:

He was not dean when all this occurred, was he?

Reynold H. Colvin:

No, that is not — it’s true and it’s not true.

May I explain, sir?

Thurgood Marshall:

But was he dean when this regulation was put into effect.

Reynold H. Colvin:

The answer to that is no but the answer to the question —

Thurgood Marshall:

Well, my point is — if I may finish point.

Did you put on any evidence as to what happened?

Reynold H. Colvin:

No, we accepted —

Thurgood Marshall:

All you had was hearsay.

Reynold H. 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.

Thurgood Marshall:

Did you take a deposition of anybody who knew what happened.

Reynold H. Colvin:

What we think and was quite clear.

Let me answer that.

I am satisfied.

Thurgood Marshall:

Well, you couldn’t answer that simply by yes or no.

Reynold H. 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 —

Thurgood Marshall:

Well, what was the decision of the committee of the faculty?

Reynold H. Colvin:

The doctor — Mr. Bakke was turned down for admission —

Thurgood Marshall:

No, no.

I mean, when the rules were set up.

What were the rules?

Reynold H. Colvin:

The rules were simply that 8% — that 16% of the entering class.

Thurgood Marshall:

But what about the 8% —

Reynold H. Colvin:

No, no 8% is the number.

I’m sorry —

Thurgood Marshall:

Well, 8% was before and now it’s 16.

Reynold H. Colvin:

May I start over again?

It was always 16%.

In the early years, —

Thurgood Marshall:

No, no 16 people.

16 people.

Reynold H. Colvin:

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

Thurgood Marshall:

Well, does the rule say 16%?

Reynold H. Colvin:

The rule says 16%.

Thurgood Marshall:

Oh, 16.

Reynold H. Colvin:

16%

Thurgood Marshall:

Where is the rule in the record?

Reynold H. Colvin:

Well, I —

Thurgood Marshall:

It’s in Dr. Lowrey’s —

Reynold H. Colvin:

In Dr. Lowrey’s deposition.

Thurgood Marshall:

But there’s no other thing there except that?

Reynold H. Colvin:

That’s where we find it yes.

Thurgood Marshall:

And that’s hearsay.

Reynold H. 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. —

Thurgood Marshall:

My only point I say is that we don’t know how the rule came about.

Reynold H. Colvin:

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

That is in the record.

Thurgood Marshall:

Right.

Reynold H. Colvin:

That is in the record.

Thurgood Marshall:

And what else do we know?

Reynold H. Colvin:

Well, we also — we also know that statistics were kept and they are in the record for each of the —

Thurgood Marshall:

Now what criteria was set down for disadvantaged?

Reynold H. 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.

Thurgood Marshall:

He’s talking about the present time when he was testifying.

Reynold H. Colvin:

Yes, yes.

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.

Reynold H. 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.

Lewis F. Powell, Jr.:

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?

Reynold H. 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.

Lewis F. Powell, Jr.:

But is it a factual controversy or —

Reynold H. 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.

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.

Reynold H. 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.

Lewis F. Powell, Jr.:

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

Reynold H. 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.

Warren E. Burger:

Mr. Colvin, don’t get too far away from the microphone if you want to stay on the record.

Reynold H. 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.

Reynold H. Colvin:

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.

Lewis F. Powell, Jr.:

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.

Reynold H. 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.

Lewis F. Powell, Jr.:

Yes, it was an administrative basis.

Reynold H. Colvin:

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

Lewis F. Powell, Jr.:

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.

Reynold H. 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.

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?

Reynold H. Colvin:

Well, yes.

I think I’m afraid that — I’m afraid that I ought to.

Byron R. White:

If you don’t need to go any farther, you simply are taking up a lot of your time.

Reynold H. 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.

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.

William O. Douglas:

I would like to help.

I really would on the constitutional issue.

Could you address that please?

Reynold H. 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?

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?

Reynold H. 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.

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.

Reynold H. Colvin:

The California Court made those assumptions arguendo.

Byron R. White:

Well, do you agree with them or not?

Reynold H. 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.

Byron R. White:

Well then you — you agree that — you don’t disagree then that these interests they’re asserting are compelling interests?

Reynold H. 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 —

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?

Reynold H. Colvin:

We might someday come to that.

But I don’t think we come to it in this case and I think that —

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.

Reynold H. Colvin:

We believe that it’s unconstitutional, we do.

Warren E. Burger:

It’s not because it’s limited rigidly to 16?

Reynold H. 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 —

Warren E. Burger:

Well, do you mean by that as to the 16 places, the allocation was dominantly by race?

Reynold H. 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 —

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.

Reynold H. 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.

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?

Reynold H. 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.

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?

Reynold H. Colvin:

We say it is a permissible goal and if —

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?

Reynold H. 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.

William H. Rehnquist:

But the University comes back and says we’re not interested in disadvantaged as such, we’re interested in blacks.

Reynold H. 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.

Reynold H. Colvin:

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 —

Thurgood Marshall:

Your client did compete for the 84 seats, didn’t he?

Reynold H. Colvin:

Yes, he did.

Thurgood Marshall:

And he lost.

Reynold H. Colvin:

Yes, he did.

Thurgood Marshall:

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

Reynold H. Colvin:

Most respectfully, the argument does not turn on the numbers.

Thurgood Marshall:

Would — my question is would you make the same —

Reynold H. 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 —

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?

Reynold H. Colvin:

Yes.

Thurgood Marshall:

You would argue that?

Reynold H. Colvin:

We don’t think we would — we’d ever get to that point within any —

Thurgood Marshall:

So numbers are just not important.

Reynold H. Colvin:

The numbers are not important.

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

Thurgood Marshall:

You’re arguing about keeping somebody out and the other side is arguing by getting somebody in?

Reynold H. Colvin:

That’s right.

Thurgood Marshall:

So it depends on which way you look at it, doesn’t it?

Reynold H. Colvin:

It depends on which way you look at the problem.

Thurgood Marshall:

It does?

Reynold H. Colvin:

The problem —

Thurgood Marshall:

It does?

Reynold H. Colvin:

If I may finish.

Thurgood Marshall:

It does?

Reynold H. Colvin:

The problem is —

Thurgood Marshall:

You’re talking about your client’s rights, don’t these underprivileged people have some rights?

Reynold H. 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 —

Lewis F. Powell, Jr.:

May I ask you a question that I think is relevant to your last statement.

Reynold H. Colvin:

Yes.

Lewis F. Powell, Jr.:

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?

Reynold H. Colvin:

Our argument would be the same to the extent — to the extent that race itself was the crucial matter in the admission situation.

Lewis F. Powell, Jr.:

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?

Reynold H. 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.

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.

Reynold H. Colvin:

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

Reynold H. Colvin:

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 —

Byron R. White:

On all those grounds.

Reynold H. Colvin:

On all of those grounds.

Byron R. White:

Now, where those grounds all taken to the Supreme Court of California?

Reynold H. 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.

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.

Reynold H. 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 —

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.

Reynold H. Colvin:

Yes.

Harry A. Blackmun:

Are you asking us then Mr. Colvin to decide the federal statutory grounds?

Reynold H. Colvin:

I’m asking this Court to decide.

William J. Brennan, Jr.:

Well we can’t — obviously, we can’t pass on the state constitution.

Reynold H. Colvin:

I understand that.

William J. Brennan, Jr.:

Well, I’m asking you then yes or no.

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

Reynold H. 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 —

William J. Brennan, Jr.:

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.

Reynold H. 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.

William J. Brennan, Jr.:

But all you’re asking us —

Reynold H. 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.

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?

Reynold H. Colvin:

I’ve heard that argument made.

I think that —

Warren E. Burger:

And you think it’s been pressed today except that our inquiries are aimed at it.

Reynold H. Colvin:

Yes, I’ve heard that argument made.

Reynold H. Colvin:

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.

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.

Reynold H. 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.

Byron R. White:

Thank you.

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?

Reynold H. 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.

William H. Rehnquist:

Whether crucial or not.

Reynold H. 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.

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.

Reynold H. Colvin:

That was —

Byron R. White:

Or at any point.

Reynold H. 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.

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.

Reynold H. Colvin:

Yes, that’s our argument.

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 —

Reynold H. 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 —

Warren E. Burger:

Well, when I say the Regents, I mean, your adversary.

Reynold H. Colvin:

Oh!

Yes.

Warren E. Burger:

I’m identifying the regents as such.

Reynold H. 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.

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.

Reynold H. 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.

Warren E. Burger:

Your time is now expired, Mr. Colvin.

Reynold H. Colvin:

Thank you very much.

Warren E. Burger:

Mr. Cox, do you have something further?

Archibald Cox:

Chief Justice.

Lewis F. Powell, Jr.:

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?

Archibald 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.

Archibald Cox:

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.

Byron R. White:

You wouldn’t say that if the admissions committee suddenly decided that they wouldn’t admit any black people.

Archibald 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.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.