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THE REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE

1. Use of Racial Classifications Does not Violate the XIV Amendment Under any Appropriate Test
1. Racial classifications are only subject to strict scrutiny/compelling interest test when invidious discrimination against minorities
1. Should be subject to rational basis test
2. Equal protection cases have also been subjected to “mean scrutiny test” based on actual purpose from legislative history
2. Racial classifications have never been held to be per se unconstitutional — have been upheld outside preferential admissions programs
3. Racial classifications are not restricted to remedying past constitutional violations and illegal discrimination (Japanese relocation cases did not rely on past discrimination)
4. If courts can use racial classifications to order remedies then citizens or government actors should be able to use for voluntary affirmative action purposes
5. Should not be subjected to strict scrutiny because there is no fundamental right and there is no suspect classification - only racial classifications used against minorities are subject to strict scrutiny

2. Even if Subject to Strict Scrutiny, Preferential Admissions Programs Serve a Compelling State Interest and are Therefore Constitutional
1. If purpose was to disadvantage minorities then it would be a violation. But to “achieve a societal goal of racial peace and integration through improvement of the opportunity of a racial minority” is not an equal protection violation because serves compelling interests
1. Essential interest in achieving minority representation in student body
1. Education value in exposure to differing viewpoints, backgrounds, etc.
2. Student bodies should be representative of “outside world”
3. Serves as a “visual reminder” to professors and administrators that can’t ignore the problems faced by minority population
2. Interest in achieving minority representation in professions and professional schools
1. Offset disparate treatment in underserved minority communities
2. Increase prospects of income in minority communities — improves self-respect and provides role models
3. Minority professionals are better able to relate to and serve minority communities
2. Professional schools have a responsibility to eliminate minority under-representation caused by over-reliance on traditional numerical criteria which disproportionately exclude qualified minority applicants
1. Schools already depart from rank ordering to consider legacy status, donors, athletes, etc.
2. Given country’s social problems, racial diversity is a more important factor than any of these other criteria (legacy status, etc.)
3. Numerical indicators are unreliable predictors and are culturally biased so giving them determinative weight should be de jure discrimination
4. Racial discrimination in primary and secondary schools accounts, in part, for minority under-representation in colleges and graduate schools so professional schools should sensibly compensate for this discrimination — use of suspect criteria in light of discrimination makes them blameworthy even without past discrimination themselves
3. Universities have duty under Civil Rights Act to take affirmative steps to recruit minorities for faculty and administrative positions — need preferential admissions programs to provide increase in minority applicant pool for these positions. So use of racial classification is required to meet federal laws
3. Preferential Admissions Programs are Narrowly Tailored
1. All the interests served are racially oriented so use of race is appropriate to serve those interests
1. Because of discrimination and cultural differences, impossible to judge minority candidates by same standards as majority candidates
2. Racial classifications are essential for neutral admissions programs
2. No adequate alternatives to racial classifications
1. Open enrollment would have same impact as regular admissions programs because minority students would not survive first year because not academically prepared although as intelligent and qualified as majority students
2. Increase in seats would only increase application from majority students and would still exclude minorities — would just get more applications from qualified majority students
3. Recruiting, remedial school, and summer preparatory programs are essential but will not affect admissions disparities. These also use racial classifications
4. Focus on disadvantage would not serve goal of minority representation because really just a consideration of economic disadvantage — would exclude minority applicants who were not disadvantaged economically and would include non-minorities who are economically disadvantaged. Economic disadvantage does not account for discrepancies in admissions criteria — can only be explained by racial discrimination

(UC) Brief for the Black Law Students Association at the University of California, Berkeley School of Law

1. Standardized Objective Criteria Should not Form the Basis of Comparison for Majority and Minority Candidates
1. Standardized tests are not reliable predictors of future academic or professional success and are culturally biased against minorities
2. Assumption that preferential admissions programs admit less qualified minority students is not correct — they are qualified for admission but standardized criteria don’t reflect their qualifications
2. Race Conscious Policy is Necessary to Avoid Racial Discrimination Which Would Otherwise Occur
1. Compelling interest in avoiding personal and institutional racism in admissions process
1. Admissions tests are racially biased so must be interpreted differently to account for racial status of test-taker and different backgrounds in order to offset disparate impact
2. No less onerous alternative method exists to properly interpret qualifications
2. Need racially diverse professions to serve needs of racially diverse population
1. Minority candidates are more qualified to serve minority communities
2. Minority students are more likely to return to the underserved communities to practice
3. Integrates a previously segregated profession
3. Admissions committee should be racially integrated
1. Minority officials on committee would prevent discrimination in admissions process and sensitize other officials to carefully evaluate minority candidates’ qualifications
2. Need more minority students so can have minority members to integrate faculty and serve on committees
4. Need special admissions committee to prevent racists and those unsympathetic to special admissions from deciding on minority applications
5. Need race-conscious procedure so can assign sympathetic interviewers and properly conduct interview process
6. Need separate committee with an approximate target for acceptances to be made, for administrative convenience
7. Such a program would not stigmatize those admitted through specially admissions because they are equally qualified — only stigma if assume inferior qualifications

1. Constitution Does not Prevent all use of Racial Classifications
1. Racial criteria may be used when reasonably related to advancing valid state interests
1. Constitution only prohibits invidious racial discrimination — not any use of race
1. Race is usually irrelevant so usually is invidious
2. Use of race is not usually necessary to accomplish permissible objectives
2. Use of race is acceptable for a racially neutral purpose or to eliminate the consequences of past discrimination
3. Non-stigmatizing use of race in special admissions programs is not invidious because advances valid interest of increasing minority representation
2. Proper test is whether or not it is invidious discrimination

2. Special Admissions Programs do not Violate the XIV Amendment
1. Necessary to serve compelling interest of integrating professions/increasing minority representation and offsetting past discrimination
1. Need a way to account for/consider that minorities have not received same primary or secondary educational opportunities because of unlawful discrimination
2. Strong correlation between race and educational opportunities — stronger than economic disadvantage
2. Programs do not violate Constitution just because individual non-minority applicants might have been excluded even though might have been admitted absent such programs
1. Would also suffer from not being admitted for other reasons if school departed from strict reliance on purely objective factors as they are allowed to do
2. Primary purpose of XIV Amendment was to advance “Black Freedom”, racial neutrality was a secondary purpose — special admissions programs do not subordinate objective of equality, strikes a balance between the 2 objectives
3. Programs are limited in use of race — do not exclude all non-minorities — just excludes some individuals who might have been excluded anyway

1. Extensive Study of Legislative Histories for Post-Civil War Bills and XIV Amendment Showing that Framers Intended to Allow Programs Drawing Distinction on Basis of Race to Benefit Minorities
2. Davis’ Special Admissions Program is Necessary
1. Discrimination in public education system justifies (if it does not mandate) a special admissions program to offset past discrimination
2. Disproportionate under-representation of minorities in health care, and health and medical treatment problems facing minorities necessitate special admissions programs to increase percentage of minority physicians
3. Absent Stigmatizing Motives, Petitioner’s Special Admissions Program is Non-Invidious and Should not Trigger Strict Scrutiny. Because it Advances a Substantial State Interest, it does not Violate the XIV Amendment.

1. Admissions Decisions for Medical Schools Represent Virtually Absolute Control of Access to the Medical Profession and Therefore Implicate Principles of Employment Discrimination Under Title VII.
2. Use of Race is not Per Se Unconstitutional and Should be Permissible for a Remedial and Benign Program Designed to Minimize Harmful Effects
1. Not every classification by race is odious — upheld where purpose is to benefit rather than to disable minority groups
1. Race conscious remedies upheld for school desegregation
2. Preferential hiring based partly on considerations of race in furtherance of “proper governmental objective” not violative of XIV Amendment
1. Here race was not the only factor — all admitted students under special admissions were determined to be qualified
2. School desegregation is a proper state objective
2. Special admissions programs are proper remedial methods to compensate for past discrimination
1. Purpose is to make parties whole — place in position they would have been in but for discrimination
2. Don’t need specific finding of discrimination or identified individual victims of discrimination — class relief is proper remedy for societal discrimination
3. Special admissions programs have no invidious intent
1. Intent is to remedy past exclusion and increase access
2. “Invidious discrimination occurs only if classification excludes, disadvantages, isolates or stigmatizes a minority or is designed to segregate the races.”
3. “Reverse Discrimination” does not arise absent racially disparaging, insulting or demeaning discrimination discriminatory to the majority group, even if program is damaging to the majority. Must relegate race to a subordinate position to be unlawfully discriminatory
3. Alternative to Special Admissions Would be Inadequate
1. Increasing number of medical school positions available would not enhance meaningful access for minorities as admission criteria would still favor majority candidates. Increase in size that would be needed is impractical given massive resources required from legislature and private sources
2. Increasing minority recruitment would have little effect — while number of minority applicants might increase, relative gap between majority and minority candidates according to traditional criteria would remain
3. More flexible admissions standards or special admissions focusing on disadvantage would not serve state interest of ethnically integrating school or profession
4. Listed criteria for when voluntary remedial selection programs should be permissible:
1. applied in context of relevant historical disadvantage to identified group
2. are temporary in nature
3. fairly and uniformly applied
4. select from among those meeting valid and necessary threshold qualifications
5. not in irreconcilable conflict with vested rights
6. carefully drawn and limited to minimize impact on individuals from historically advantaged group
7. not applied to provide absolute or near absolute preference to any given individual, unless identified as individual victim of invidious discrimination and no conflict with vested rights

1. Asian Americans Were Systematically Discriminated Against Educationally and Professionally and Still Suffer the Effects of such Discrimination
1. Purpose should not be to produce Asian American lawyers for Asian Americans, but must recognize peculiar cultural and language characteristics of ethnic minority groups that necessitate that minority professionals be available for all Americans
2. Purpose should also be to offset the under-representation of minorities in professions relative to their composition of the population at large
2. Use of Race as Remedy to Past Discrimination Against Minority Groups is not Suspect Despite Disadvantage to Non-Minorities
1. Such use of race is consonant with purposes of XIV Amendment and is not invidious discrimination against minorities. Because remedial and benign to minorities disadvantaged by prior discrimination, an “intermediate equal protection standard” should apply
1. Central purpose of XIV Amendment was to guarantee equality for blacks and, by extension, other minorities. Only those racial classifications that involved unequal treatment of a minority group or excluded minorities from participation in “majority social institutions” resulting in stigma of inferiority have been deemed suspect and invidious in violation of XIV Amendment. Special admissions programs do not have purpose or effect of segregating or stigmatizing either minority or majority groups
2. Special admissions programs benefiting victims of past racial discrimination are not used to disadvantage isolated and powerless groups or result in “cumulative and pervasive disadvantage” so are not suspect
3. Majority has less need for judicial protection because has greater access to political remedies
4. While race should ideally be irrelevant, because of past discrimination race is a necessary and relevant consideration to remedy effects of racially motivated discrimination
2. Consideration of race has been upheld without being subjected to strict scrutiny in other remedial contexts (mostly employment), even absent an individual finding of prior discrimination against the “victim” or past discriminatory action by the “guilty” party
3. Special admissions programs can be administered in an equitable and reasonable manner
1. Although should not be subject to strict scrutiny, not all such programs would be constitutional. Requires more careful scrutiny than rational basis test
2. Potential risks to remedial use of race
1. May further invidious purposes
2. May encourage undesired race consciousness
3. Programs should be evaluated according to:
1. Need for remedial action based on prior discrimination (not necessarily by the implementing institution) as evidenced by statistically significant under-representation
2. Should be strictly limited in duration — only apply until effects of discrimination are no longer felt
3. Scope of program should be reasonably related to needs of minorities effected, but should maintain standards of qualification
3. Even Under Strict Scrutiny Test Special Admissions Programs Based on Racial Classifications for Remedial Purposes are Constitutional
1. Serve compelling state interests:
1. Racial integration of schools and profession
2. Promoting cultural diversity of student body which assists all students to become more aware and sensitive to the specific needs of minority communities
1. “The beginning of that understanding … is in the integrated classroom where each student hones ‘his ability to study, to engage in discussion and exchange views with other students, and, in general, to learn his profession.’” (Quoting McLaurin v. Oklahoma State Regents)
3. Provision of successful role models for minority children
4. Expansion of number of professionals who will serve otherwise underserved minority communities
2. No less restrictive alternative means exist to achieve goal of greater racial minority enrollment - suggested alternatives would have only attenuated and marginal impact on curing minority under-representation (lists and rejects the 3 alternatives addressed in the Brief of Fair Employment Practice Commission of California, supra, and the provision of remedial programs for educationally disadvantaged applicants)

1. Finding a Violation of the XIV Amendment Requires Proof of Racially Discriminatory Intent or Purpose (Arlington Heights)
2. Criteria Used by Davis’ Special Admissions Program did not Invidiously Discriminate Against Bakke Because of his Race, nor was There Evidence of Racially Discriminatory Intent or Purpose Motivating the Program — More Mexican American/Chicano Applicants (Traditionally Classified as Caucasian) Were Admitted Under Special Admissions Program Than any Other Race
3. Submit That Socio-Economic Classifications are Preferable to Racial and Ethic Classifications for Special Admissions Programs and Such Classifications Should be Combined With Mandatory Periodic Reviews and Limited in Duration Until Lawful Objective of Adequate Representation is Achieved

1. XIV Amendment Does not Prohibit Consideration of Race by State Where Purpose and Effect is to Increase Number of Under-Represented Minority Applicants in Educational Programs
1. Racial classifications whose purpose and effect is not to discriminate against persons on the grounds of race are sustainable if they are rationally related to a legitimate state purpose
1. If intended as a retributive measure against majority, would be impermissible
2. Disproportionate effect does not amount to discrimination — must purposefully discriminate. Absent racial slur or stigma, no purposeful discrimination
2. Such plans must not be administered in an invisible manner — to engage in subterfuge such that the delicate issues would not be handled where they can be seen and discussed and where consequences can be identified and appraised, would be a dangerous “frightening” alternative
3. Under §5 of XIV Amendment, Congress may authorize relief to victims of discrimination even when it adversely affects others (Franks v. Bowman Transportation Co.). Therefore, states should be able to voluntarily effect remedial programs to ameliorate effects of past discrimination for groups that have been victims of discrimination
2. Special Admissions Programs Should not be Subject to Strict Scrutiny/Compelling Interest Test
1. Charges of racial discrimination must be closely scrutinized — a statute or practice prescribing an outcome based on race is unconstitutional regardless of whether the majority or minority benefits.
2. But remedial policies designed to correct inequities suffered by minorities have never been treated as suspect
1. Strict scrutiny is designed to prevent a tyranny of the majority — to protect insular and vulnerable minorities from government actions approved by the majority that would deprive minority of their constitutional protection. Such actions must be justified by a compelling state interest
2. Underlying rationale for strict scrutiny is to protect minorities — should not apply where majority apportions benefits among minorities and majorities to correct effects of past discrimination
3. Morton v. Mancari upheld preferential hiring for Indians to the exclusion of non-Indians because of discrimination against Indians and the disadvantages they had suffered as a result
3. XIV Amendment Does not Require a Showing of Past Discrimination as Necessary to Justify Preferential Admissions Program Designed to Remedy Effects of Historical Discrimination. XIV Amendment is Mandate to Remove not Only the Incidence of Discrimination, but its Effects as Well
4. Striking Down the Special Admissions Program Would Deny Educators the Discretion Needed to Formulate and Implement Educational Programs Beneficial to all Their Students, and Effectively end Experimentation With Such Programs

1. Non-Judicial Branches are Responsible for Selecting the Goals to Which the Government Devotes its Resources and Which Discriminatory Treatment is Necessary and Proper to Achieve Those Goals. Judiciary’s Task is to Void Only Those Discriminatory Governmental Actions That are Constitutionally Intolerable
1. Must be directed toward a proper public purpose
2. Must not promote that purpose in an inefficacious or oppressive manner
2. History of the XIV Amendment and the Limits of the Judicial Function Allow Employing Racial Criteria for the Purpose of Reducing the Past Effects of Public and Private Discrimination Against Minorities
1. Discrimination on basis of race involving a manifestation of hostility towards racial minorities and intended to oppress members of a particular race and perpetuate racism have been found violative of XIV Amendment
2. Nothing in XIV Amendment mandates any per se prohibition on use of racial factors
3. Established that under proper circumstances courts should defer to non-judicial branch use of race designed to “effect solutions to the country’s racial problems.”
1. Government cannot be compelled to institute remedial action absent showing of de jure discrimination, but should be allowed to do so voluntarily
2. Government is not only in business of remedying its past wrongs — also pursuit of goals which public citizenry deems worthwhile
3. Affirmative Action Admissions Programs are Constitutionally Tolerable Non-Judicial Governmental Actions Employing Racial Criteria Because They Serve Demonstrably Important Governmental Goals in a Means Suited to Achieve Those Goals
1. Problems sought to be alleviated by affirmative action admissions programs involve demonstrably important governmental issues given the critical nature of the country’s racial problems
1. Racial problems have proven stubbornly resistant to solution — so judiciary should grant other branches considerable leeway to experiment with various remedies
2. Insistence on employing one or a few methods, or only the least restrictive alternative, would strangle effort to alleviate problems — non-judicial branches should be permitted to use a vast array of techniques to solve racial problems
3. Critical element in cases where Court has struck down racial classification is the intent to act in a racially hostile manner with purpose to disadvantage particular racial group — neither mere utilization of race as a sorting criteria nor racially biased effect are determinative
1. Awareness of effect is not equivalent of intent for equal protection purposes
2. Anticipated exclusionary consequences are not the equivalent of programs having hostile racial objective, for equal protection purposes
3. Judicial intervention in business of other governmental branches is only justified in cases of hostile racial purposes. Anticipated racially skewed effects are not intended “racial slurs[s] and stigma”
2. The chosen means of affirmative action admissions programs are precisely tied to the ends desired
1. Effective and ingenious solutions to racial problems must necessarily take racial considerations into account
1. Substituting consideration of disadvantage in place of racial criteria misses critical point of program and would fail to address intended goal — alleviation of racial problems. Focus on disadvantage would be both over and under-inclusive for objective of alleviating racial problems
2. Preference for minority applicants rests on same premise as preference for geographically diverse applicants or intellectually superior applicants — belief that admission of those chosen is more likely to achieve certain public goals than would admission of those excluded
2. Efforts of indirection to mask or hide the racial considerations through less overt racial means should not be required to preserve the program’s legality — “the [Constitution] nullifies sophisticated as well as simple-minded modes of discrimination.”
3. Bakke lacks standing to challenge the program: the existence of the program itself is not being challenged as unconstitutional — just it’s use of race. Bakke might still be rejected absent the consideration of race because the program preferred economically or educationally disadvantaged applicants. Proper plaintiff would be someone who would have been admitted absent the consideration of race in a special admissions program
4. Judiciary should not withdraw from politically accountable arenas the critical policy judgment whether to voluntarily adopt affirmative action admissions programs

1. Objectives of Special Admissions Programs are Compelling Governmental Interests and Legitimate Public Policy Objectives
1. End to racial prejudice, eradication of barriers from past discrimination, and integration of society make correction of racial imbalance in (law) schools and (legal) professions and urgent goal of high priority
1. Existing racial imbalance in legal profession is substantial
2. Access to legal profession is imperative because of rule of law — denying effective access to legal profession limits access to government, business and politics
3. Access to law school is only meaningful access to legal profession
4. Exclusion from professions amounts to economic maldistribution
5. Racial exclusion from profession has significant impact upon client community — minority communities must have opportunity to have full access to professionals “whom they trust to understand their needs[,]” and minority professionals provide role models for minority communities
6. Impact of racial imbalance is felt directly in schools/classroom
1. Integrated classroom benefits members of majority and minority races because of “give and tale of the classroom”
2. “law school, the proving ground for legal learning and practice, cannot be effective in isolation form the individuals and institutions with which the law interacts.” (Sweat v. Painter)
3. “To deny white students access to the ideas an experiences of other racial segments of society is to deprive the majority of much that the law school might otherwise be able to offer.”
4. Lack of integration increases risk that majority students, when they become professionals, will be less sensitive to interests and concerns of minority
2. Present racial imbalance is result of past discrimination and prejudice, and voluntary remedial responses should allowed regardless of individual (or institutional) responsibility for past discrimination
2. Eliminating Affirmative Action Admissions Programs Would Prevent the Correction of Racial Imbalance in Professional Schools and Professions
1. Traditional admissions criteria and standards effectively exclude minorities — escalating admissions standards and handicaps faced by minority applicants effect the nearly total exclusion of admitted minority students
2. No alternative means would achieve a meaningful correction of existing racial imbalance
1. Aggressive affirmative minority recruitment efforts and remedial schooling would be wholly inadequate at integrating schools unless traditional academic standards are adjusted to eliminate formidable barriers to minority admission
2. Expansion of class-size would not effectively increase proportional minority representation
1. Funds to increase professional schools to the extent necessary are likely unavailable
2. Expansion is not otherwise needed
3. Even if expansion did occur, it would not ameliorate minority under-representation
3. Program focusing on “disadvantaged” background would not serve objectives of minority admissions
1. Would fail to remedy racial imbalance because “disadvantaged” is not synonymous with “racial minority”
1. (1) If forbidden to consider race in evaluating applicant, would be equally forbidden from considering race to determine whether applicant is disadvantaged
2. (2) Concealing impermissible consideration of race by describing it in other less explicitly racial terms is ill-advised — must be complete openness and frankness
2. “Minority” and “disadvantaged” do not describe substantially overlapping populations — majority of economically disadvantaged population is not racial minorities and many currently admitted minority candidates would not qualify as disadvantaged
3. Sympathetic treatment of “disadvantaged” applicants is not the objective sought by minority affirmative action admissions programs — efforts towards disadvantaged would not result in admission of significant number of minority students
4. Admission of disadvantaged applicants would not remedy the under-representation of minorities or the other effects of past racial isolation and discrimination
4. More flexible admissions standards would either serve as a subterfuge for impermissible racial consideration, or would not significantly alter the racial composition of the class — would just alter the characteristics of the majority applicants admitted
3. Schools should not be barred from voluntarily acting as they would be compelled to act if they were found to have practiced illegal racial discrimination
1. If unlawful racial discrimination is shown, obliged to utilize race conscious means to remedy effects of discrimination
1. Here, could have unlawful discrimination because of reliance on traditionally admissions criteria that excluded minorities because of cultural bias
2. Line should not be drawn that requires adjudication of illegality before a professional school can voluntarily implement corrective steps
1. Compels litigation as a condition precedent to solving racial problem
2. Ties the hands of school administrators and faculty who are responsible for admissions programs — cannot respond to racial imbalance until illegality is proven
3. Such a rule would be wholly at odds with cases upholding explicit consideration of race in voluntary programs for remedying racial imbalance in public elementary and secondary schools and in government employment policies
3. Because They Serve the Substantial and Compelling Interest of Correcting Racial Imbalance, Programs Considering Race of Minority Applicants do not Violate the Equal Protection Clause and are Constitutional
1. Acceptable affirmative action admissions programs must have certain features
1. All those admitted, even through special admissions, must be academically competent to gain admission
2. Standards and procedures of the minority admissions program must be openly and explicitly stated
3. Must serve only as transitional devices, limited in duration for only as long as conditions of necessity continue
2. Affirmative action programs serve important governmental objectives and are substantially related to achievement of those objectives
1. Strict scrutiny is inappropriate for remedial minority admissions programs because of the historical purpose of “suspect classifications”
1. Racial majority (whites) do not possess any of the traditional indices of suspectness — are not politically powerless
2. Majority has not been subjected to history of purposeful unequal treatment
3. Programs are designed to benefit that same groups that are historically protected by strict scrutiny as suspect classifications
4. Programs do not represent a racial slur or stigma to majority, or to minorities who benefit from the programs
2. Even well-intentioned racial classifications involve potential risks, so rational basis test is not sufficient protection. Rather, remedial racial classifications should be subjected to intermediate standard of review — must serve important governmental objectives and must be substantially related to achievement of those objective (Craig v. Boren). Affirmative action admissions programs serve important interests of correcting racial imbalance and remedying effects of past discrimination, and are precisely and directly focused upon the attainment of these objectives
3. Even subject to strict scrutiny, affirmative action admissions programs are constitutional because address a concededly compelling state interest, and there is a lack of any meaningful alternatives

1. Abundance of Available Positions in Engineering Schools and in Engineering Professions Shows That Increasing Available Positions Would not Impact Minority Representation — Even With an Abundance of Positions, Minorities are Under-Represented in Engineering
2. Discusses History of Discrimination in Education to Show That Segregative Practices Still Exist in Schooling, Resulting in Minority Under-Representation in Graduate and Professional Schools and Professions
3. When There is Evidence That a State Supported School has Discriminated Against Minorities, Mere Cessation of Segregative Practices or Racially Neutral Policies are not Sufficient — Affirmative Action Programs and Remedial Consideration of Raced are Mandated (Quotas Have Been Supported by Courts as Remedial Measures)
4. Professional Schools Should be Permitted to Voluntarily Undertake Affirmative Action Programs to Reduce Under-Representation of Minorities in the Professions and Professional Schools Caused by Segregative Practices
1. School authorities traditionally have broad power and discretion to formulate and implement educational policies — even absent a finding of a constitutional violation when a federal court would not have authority to mandate the same policies
2. Because professions and professional schools are now national in scope and character, and no longer serve the parochial interests of a single state or locality, professional schools should be permitted to voluntarily undertake to remedy nationwide minority under-representation resulting from general discrimination. Showing of discrimination by one state agency, even if not the institution involved, should be enough to justify voluntary efforts though would not justify court ordered affirmative action program
3. Voluntary affirmative action programs are permissible until the result of past discrimination “becomes so attenuated as to dissipate the taint.” (Nardone v. United States) — Must be limited in duration and cease once minorities have achieved equal access to professional schools and the professions

1. Strict Adherence to Measurable Admissions Criteria Would Result in a Homogenous Student Body. Because Number of Qualified Applicants Exceeds Available Positions for Admission, it is a Widely Accepted Policy That Academic Institutions may Seek Greater Diversity of Students in Selecting From Among the Qualified Candidates
2. Significant Educational Goals are Served by Considering Diversity as a Factor in Selecting a Student Class
1. Diversity has significant impact upon in-class and assigned academic work, as well as on “student culture” of the school — all of which affect quality of educational experience
1. Higher education is not conducted on purely dyadic basis between student and teacher in which presence and participation of other students play little or no role
1. Success of instruction involving class discussion depends on the active participation of students
2. Composition of group plays important role in the success of group learning process
3. Diverse student body benefits entire class by expanding the range of experience available to the group, especially the special experiences of significantly under-represented groups
2. Because individuals tend to adopt attitudes of those held by majority of group, expression of divergent attitudes lessen impulse to conformity
2. Education occurs beyond classroom through interactions within the “student culture” of the school. Diverse student body of varied social and ethnic backgrounds provides additional perspectives unavailable from homogeneous student body
1. Achieving a satisfactory degree of racial and ethnic diversity is relevant to providing optimal educational experience for entire student body
2. Race is not efficient surrogate for personal traits or experiences, but race itself has a powerful social and cultural significance in American Society
3. Members of racial or ethnic groups are not fungible — important to have diversity within minority groups reflected in class and student culture for benefit of entire student body
3. Consideration of Race in Admissions Criteria to Achieve Educationally Sound Student Diversity Does not Violate XIV Amendment
1. Disregarding remedial motivations, can be predicated on the “particularized application of professional judgment about the nature of the educational process.”
2. Selection of a sufficient number of qualified minority students to assure degree of racial or ethnic diversity is relevant to an optimal education for entire class
1. “The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in a vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.” (Sweat v. Painter)
3. Court has recognized broad discretionary powers of school authorities to consider race school assignment “in order to prepare students to live in a pluralistic society.” (Swann v. Charlotte-Mecklenberg Board of Education) Not and abuse of discretion for educational institution expressly to identify a nontrivial number of qualified minority students to assure an educationally sound degree of diversity
4. Ancillary effect of denying admission to qualified non-minority applicants is indistinguishable from denial resulting from other considerations of diversity — both directed to goal of providing best education. Since the latter are permitted, former should not be prohibited by XIV Amendment either.

1. Diversity in the Student Body is an Important Educational Objective, so Inclusion of Qualified Minority Students Serves Important Educational Purpose
1. Diversity makes the university a better learning environment for the students — a primary value of liberal education should be exposure to new and provocative points of view
2. Diversity also makes the university a better learning environment for faculty by providing exposure to a variety of ideas
3. Enlarging the universe of highly trained minority persons serves the compelling purpose of diversifying the leadership of our pluralistic society

2. Consideration of Race in Admissions Decisions is Necessary to Achieve Adequately Diverse Student Bodes While Maintaining Other Significant Educational Values
1. Discusses the alternatives suggested (see above) and rejects them as adequate alternatives for failing to serve objective of increasing racial minority representation. Alternative methods would actually decrease admission of minority students because would only result in more non-minorities qualifying for sympathetic treatment

3. Shaping of Academic Policy is Traditionally the Responsibility of Educational Institutions Free of Extramural Intervention
1. “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” (Sweezy v. New Hampshire, Frankfurter, J. concurring)
2. Purpose of special treatment of minorities is not to discriminate against majority, nor is it primarily benefit members of minorities — principal goals are to improve quality of teaching and learning for majority and minority students and diversify the nation’s leadership. Consequential disparate effect on different races does not constitute invidious or stigmatic discrimination
3. Constitution requires that majorities not use their power to injure or degrade minorities. Since that is not involved in this use of racial classifications, there is no constitutional violation

1. Benign Racial Classifications as Employed in Special Admissions Programs Serve the Compelling Interest of Ameliorating the Effects of Systemic Institutional Racism and Discrimination and are Constitutionally Permissible, Even When Subjected to Strict Scrutiny
2. Key to Showing of an Unconstitutional Racial Classification is a “Racially Discriminatory Purpose” (Washington v. Davis)
1. Mere use of race in a purposeful manner is not sufficient absent an intended racial slur or stigma
2. There is no stigma or aura of inferiority attached to applicants by special admissions programs
3. Analogous to Washington v. Davis where no requisite discriminatory intent was found, despite disparate impact, because affirmative measures were taken to recruit black officers; special admissions programs “reserve” spaces for non-minority applicants - showing that no constitutionally proscribed discriminatory intent as regards the majority exists

3. Special Admissions Programs do not Stigmatize the Beneficiary Minorities as Intellectually Inferior
1. Minorities are not similarly situated with the majority
2. Because of socio-cultural, economic, political and educational differences between minority and majority candidates, minority applicants should not be expected to demonstrate their capabilities according to criteria normed on experiences of the majority. Special admissions programs provide equal access on basis of more realistic selection criteria
3. Because higher education plays a vital role in America, minorities need to be giver fair access to all institutions of higher learning on at least a proportional basis to destroy the caste system and attain equal opportunity. Special admissions programs provide students with academic environment to receive exposure to history, contemporary experiences, and cultural heritage of all the racial and ethnic groups in the country — fulfilling the duty of higher learning of providing values, skills, flexibility and depth of outlook needed to serve useful role in pluralistic society

1. Without Special Minority Admissions Programs, Minority Students Would be Excluded From American Law Schools
1. There are many more qualified applicants than there are positions in law schools, requiring that many applicants, qualified to attend law school with a predicted degree of success, must be denied admission
1. Admission to law school is not a prize granted as a reward for the most deserving. Admissions process to law school is designed to provide the community with the lawyers it needs
2. Because of the abundance of qualified candidates, admissions decision has generally been to select those students who show the most potential to succeed in law school subject to other limitations which also serve the community
2. Although numerical indicators predict, with a certain degree of success, which applicants are most likely to succeed in law school, the correlation is strongest on the extreme ends of the spectrum — those who do exceptionally well or those who do poorly. For the majority of candidates in the middle, numerical indicators are not as accurate in predicting individual success, since the majority of the applicants would be predicted to succeed in law school — the indicators are not precise enough to distinguish among the majority of similarly qualified candidates. Therefore, schools look beyond numerical indicators to diversifying factors to select students whose background or experience indicate that they will succeed in law school, enrich the law school, and succeed in serving the community
3. The consideration of race in the admissions process is necessary to ensure a substantial number of minority students in law school — absent special admissions programs, minority students would be almost entirely eliminated from law schools, and alternatives to special admissions programs would not increase the number of minority students admitted
2. Special Minority Admissions Programs Serve Compelling Social Interests
1. Race is a socially significant characteristic in America — it differs from classifications based on other characteristics because other groups have not been segregated by our society nor otherwise subjected to generations of invidious discrimination on account of their shared characteristic — other characteristics are socially irrelevant
2. There is a critical need for minority lawyers
1. Lawyers have pervasive public influence in representative government, in leadership roles in community and organizations, and in representation in and enforcement of judicial system
2. Serving legal needs of minority communities — although law schools need not endorse the feeling that members of minority communities will only trust or be comfortable with a lawyer who is also a minority, they must recognize the reality that minority lawyers are generally better able to understand and communicate with minority clients
3. Racial diversity within a student body is important to a sound legal education
1. Because of history of race in America, race accounts for some of the most significant differences in our society, so prospective lawyers need knowledge of the backgrounds, views, attitudes, aspirations and manners of the member of racial minorities
2. Encountering diversities and similarities between majority and minorities, and within minority groups themselves, is an important aspect of educational process — learn that there is no singular/uniform common minority experience or perspective, and that distribution of attitudes or perspectives within minorities may differ from distribution in majority
3. Need to increase effective communication across racial lines and prepare students to live in a pluralistic society is served by sharing educational experience with members of other races
4. Increase in number of minority lawyers will strengthen the middle class in such minority groups and have a catalytic effect encouraging the aspirations of children within minority communities and set in motion a chain reaction leading to the breakdown of conditions that condemn members of minorities to lives of poverty and desperation

1. Consideration of Race for Benign Remedial Purposes is Constitutionally Permissible
1. Race conscious methods have been approved in employment and school desegregation contexts
2. There is a distinction between racial classifications which invidiously discriminate and those which have a benign remedial effect as their purpose
3. Strict scrutiny has only been applied to review racial classifications on behalf of individuals or groups that suffered from pervasive discrimination and were particularly vulnerable to damaging effects of racial classification. Such groups share 3 characteristics:
1. Labor under continuing effects of previous discrimination
2. Share immutable characteristics which have been used to stigmatize and isolate them from majority
3. Have been historically powerless within the political arena
4. Special admissions programs do not display a discriminatory intent or animosity to majority, nor has majority suffered from past discrimination. Special admissions programs also do not stigmatize non-minority members not admitted or qualified minority members admitted through the program. Majority was also not entirely excluded as a result of the programs or under-represented as a result - program did not effect discrimination - it just neutralized effects of past discrimination. Consideration of race did not amount to giving a preference but to expanding the criteria considered in making admissions decisions
5. Court has recognized that non-judicial bodies have broader authority to remedy constitutional violations than does the judiciary — limitations of equity jurisdiction are not applicable to non-judicial bodies
6. Because no suspect classification was created by the consideration of race, only rational basis review should apply
2. Special Admissions Programs Satisfy Strict Scrutiny Test Because They Serve the Compelling State Interests of Remedying the Consequences of Discrimination and of Serving the Unmet Professional Needs of Minority Communities. In Light of the Urgent Need for Swift Remedies, Special Admissions Programs are the Least Restrictive Means of Accomplishing the Desired Objectives

(There is a brief discussion of how professional schools take other factors into consideration for admissions decisions — particularly residency status, presenting consideration of race as equally justifiable)

1. The XIII Amendment Requires the Eradication of all Badges and Incidents of Servitude
1. The gross exclusion of minorities from professions and professional schools is a badge of servitude — a cohesive system of stigmatization and exclusion, and disparities in the relative educational and professional status between majority and minorities are both outcomes of, and essential links in, perpetuating the suppressed conditions of minorities
2. System of exclusion cannot be undone without affirmative steps directed at the economic, social, and political attributes of the system. Merely ending de jure segregation or racism is not sufficient to realize the mandate of the XIII Amendment
3. States should be allowed to experiment with programs to effect the fundamental rights of the XIII Amendment — affirmative action admissions programs are one such experiment that must be acceptable
2. XIV Amendment Equal Protection Claims do not Override Implementing the Mandate of the XIII Amendment
1. Equal Protection Clause does not require colorblindness as an insuperable command that would supercede the XIII Amendment
1. As eliminating the badges and incidents of servitude requires increasing minority representation in professional schools and professions, remedial measures must logically identify victims of racial exclusion on the basis of their race, and must be directed at specific racial minorities
2. Colorblind application would “freeze” the status quo of prior discriminatory practices — preserving the badges and incidents of servitude
3. In Title VII context — principle of race blindness does not apply because statutory purposes are fulfilled by affirmative action programs
4. History of XIV Amendment shows its role as an enforcer of the XIII — should not be used to invalidate a program implementing the XIII Amendment
5. XIV Amendment does not require “least detrimental means” test — this requires disproving a negative. Rather, “most precise or narrow means” test applies — identifying racial minorities for admission is the most precise method to increase racial integration and minority representation
1. Even though most precise means test is satisfied, it does not apply to special admissions programs — it is a First Amendment test to protect fundamental rights
2. Those excluded by special admissions do not have a fundamental interest that is violated — no fundamental right to having one’s race ignored
2. Strict scrutiny does not apply because the majority is not a suspect classification — only applies to racial classifications that serve to keep a historically disadvantaged race in a disadvantaged position or brand a race as inferior. Where purpose of classification is not to discriminate or where there is an obligation to affirmatively promote racial integration, racial classifications will be upheld irrespective of disparate impact
3. Programs serve the compelling need of increasing number and percentage of minority physicians to offset inequalities in medical treatment and medical condition. Also serve interest of racially integrating schools — directly serves to stimulate the quality of education that takes place and to heighten the sensitivity of students to perceptions and needs of a variety of groups. “Diversity, particularly in a setting such as a school where the students have many common goals, can foster interest and curiosity and encourage mutual respect and understanding.”
4. Majority applicants excluded from admission have no fundamental rights that are violated and deserving of protection
1. No right to admission — could be denied admission because of a number of other criteria — residence, relationship to enrolled students, disadvantage, etc.
2. Constitution is not color blind — no right to not have race considered
1. Equal protection only violated when race consideration is used to invidiously impose a racial slur or stigma
2. Racial classifications are upheld in employment contexts and educational desegregation programs
5. Majority is not unconstitutionally burdened by special admissions — majority of students admitted are still of the majority race
6. State authorities have broader equitable powers than do federal courts and can experiment with remedial mechanisms without first proving past discrimination

1. Given the History of Discrimination and Segregation in California and California’s Educational System, Minority Special Admissions Programs are not Presumptively Unconstitutional Since the XIV Amendment’s Central Purpose is to “Protect Black People Against Oppression and Discrimination by the Majority”, so Non-Oppressive and Non-Invidious Racial Classifications for Remedial Purposes are not Suspect or Impermissible
2. Benign Racial Classifications Should not be Immune to Judicial Scrutiny Because use of Race Always Carries Potential for Abuse — Must Substantially Further Constitutionally Legitimate and Important Social Objectives
3. Racial Classifications and Preferential Treatment are Necessary as Race Must be Taken Into Account to Effectuate the Goals of an Integrated Society

1. Special Admissions Programs Serve Educational Needs and Basic State Interests
1. Interest in increasing minority enrollment is constitutionally permissible
1. Reasonable for professional school to desire racial diversity of student body for educational purposes
1. Students need diversity of experience and professional interests that may come only from sharing educational process with other racial groups
2. Diversity contributes to innovation in development of research priorities, curriculum, and other academic insights
3. Not arbitrary to assume that presence of racial diversity enriches educational program
2. Responsibility to prepare racially diverse group for professions — diversity is desirable, if not essential, to determine priority and modes of service to community
2. Means used in special admissions programs are permissible
1. Racial goals require consideration of race to effectively and efficiently achieve purpose
2. Alternatives of programs for disadvantaged, increased recruitment, etc. are either ineffectual in increasing proportional minority representation or are disingenuous in that while nominally non-racial, they are operated as racial classifications or are racial classifications one step removed
3. No smell of oppression in programs — aim is inclusion, not exclusion. Just transitional steps that will be eliminated by political mechanism when no longer deemed necessary
4. Result of transitional inequities to majority applicants resulting from program is not enough to invalidate the program
2. Consideration of Race for Special Admissions Programs is Permissible Under the Equal Protection Clause Because it Does not Stigmatize, the Affected Class is not Entitled to Extraordinary Judicial Protection, and There is a Showing of Sufficient Need for the use of Racial Criteria. Inescapable Imposition of Costs on Some Persons is not Sufficient to Invalidate Such Programs
1. Deliberate use of race in a purposeful manner as a criterion of choice is not constitutionally invalid where the use represents no racial slur or stigma with respect to any race (United Jewish Organizations of Williamsburgh, Inc. v. Carey). Purpose of special admissions programs is constitutionally valid
1. Programs are designed to integrate, not to segregate, so no animus against a discrete group
2. Program is enacted by majority-race decision maker, so presume no racial insult or injury is intended against members of the majority
2. Plaintiff’s class (majority) is not entitled to extraordinary judicial protection because it is not a discrete and insular minority group
1. Non-minority applicants have not been “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” (San Antonia Independent School District v. Rodriguez)
2. Class is too large, diverse and amorphous to be entitled to extraordinary judicial protection
3. State’s use of racial criteria in allocating scarce resources is permissible for purpose of overcoming effects of societal discrimination
1. Preferential treatment of minority groups is recognized as only effective means of overcoming persistent disadvantages
2. Adjudication of fault is not necessary for voluntary remedial programs
4. Result of disadvantage borne by those not benefited by special admissions programs does not itself invalidate the program — very nature of allocating scarce resources is that some will be denied access

1. Affirmative Steps to Alleviate Conditions of Inequality in Education are not Only Permissible but are Mandated Because of the Elimination of a Distinction Between de Jure and de Facto Discrimination — Actions and/or Inactions That Have the Foreseeable Effect of Creating, Maintaining, or Perpetuating Racial Segregation Within Schools are Included as de Jure Segregation
2. Remedies in Desegregation Plans may be Exclusionary. There is no Constitutionally Cognizable Harm Suffered by one Excluded From the School of his Choice as Part of a Desegregation Plan
3. Title VI is a Broadly Stated Prohibition on Discrimination That Requires Race-Conscious Ameliorative Devices, as Ethnic Exclusion Violative of Title VI Would Result in the Absence of an Affirmative Program

1. Repeats Arguments That Less Restrictive Means/Strict Scrutiny Test Should not Apply Because Majority Does not Constitute a Discrete and Insular Group Deserving of Extraordinary Judicial Protection (Suggests That Majority is not a “Group” at all), and Because the Compelling State Interests of Ameliorating Effects of Discrimination and/or Segregation are Served. Alternative Mechanisms Would not Adequately Serve These Interests
2. XIII Amendment Provides Alternative Source for Upholding Constitutional Validity of Affirmative Action Admissions Programs as Measures to Eliminate the Vestiges of Slavery and Racial Discrimination
1. History and intent of the drafting of the Amendment and legislation enacted pursuant to the Amendment show that African-Americans were the primary intended beneficiaries of the Amendment — whites are only incidental beneficiaries
2. Promise of the XIII Amendment cannot be fulfilled if power under the Amendment is limited by claims of whites that they are being denied equal protection of the law under the XIV Amendment
3. Title VI Requires or Permits Special Admissions Programs
1. Absent special admissions programs, many schools would be in violation of Title VI because using traditional admissions methods would perpetuate the disproportionate effect in rejecting identifiable racial or ethnic applicants on account of artificial barriers
2. Given discrimination in violation of the Title VI regulations, affirmative actions to overcome the effects of prior discrimination are mandated by the regulations. No formal finding of a violation is necessary — self-analysis is sufficient
3. Special consideration to race, color or national origin is expressly permitted in outreach to distribute public benefits — there is a “safe harbor” from liability

1. Admissions Policies can Consider Past Racial Segregation in Education of Applicants
1. Need not be confined to single dimensional purpose of selecting best-qualified — reasonable decision could consider fairness
1. Given past segregation in education, minorities could not reasonably perform at same level as majority according to numerical criteria
2. Color-blind policy would be ideal absent a history of racial discrimination, but “the runner who was illegally shackled in running the elimination heats cannot, in fairness, be excluded from the race.” The cure must match the disease — must account for race to remedy past racial wrongs — no escape from use of race in making compensatory or remedial allowance for handicaps inflicted
3. Policy involved no discrimination — assumes neither superiority of one group or inferiority of another. Principle is racially neutral — premise is racial equality, but must consider race to correct past racial wrongs
2. Need not be only forward looking/prospective in interests — may look to the past so that purpose is to remedy past wrongs — need not identify future goals or interests that must be compelling, important or substantial. Foundation of classification is not race itself but handicap inflicted upon a group selected by race and wronged by past unconstitutional racial discrimination
3. Does not impose a duty on a resistant person, nor does it deprive anyone of a vested right — just a reasonable allocation of a limited resource
1. Avoidance of detriment to innocent parties is not an absolute command, just a factor to be weighed in selecting from among potentially available remedies
2. Only required that ends and means should match
4. Alternative mechanisms do not effectively address or correct the handicap imposed specifically through past racial discrimination and segregation
2. Non-Minority Applicants Excluded Through Special Admissions Programs are not Necessarily Better Qualified Than Minority Applicants
1. Unmitigated emphasis or reliance on numerical indicators is unwarranted — not only do they not accurately reflect who is better qualified, also falsely assumes that admission is a prize awarded for past academic achievement. Numerical indicators are not relevant because they embody some general merit, but only because of their limited value in predicting future academic performance
2. Non-academic factors are relevant predictors of probable professional contribution — schools seek wide diversity of backgrounds among students to fill all the varying professional needs. Impossible to measure realistically whether an applicant is better qualified than another in a color-blind comparison — race is important not for race itself but as indicator of unique experience and cultural ties
3. Use of factors such as race to exclude either all who have it or all who lack it would raise grave constitutional concerns, but to use such characteristics as one factor in an admissions decision is fundamental and essential to educational mission

1. Reliance on Traditional Numerical Criteria for Admission Disproportionately Excludes Minority Applicants and Does not Bear any Proven Relationship to Professional Success or Academic Performance
2. Because of Knowledge of Disparate Impact and Lack of Relationship to Future Performance, Reliance Solely on Traditional Numerical Criteria Would Show a Discriminatory Purpose and Would be Violative of Equal Protection
1. Title VI requires abandonment of methods that have discriminatory impact even absent a purposeful design to discriminate, and requires affirmative acts to remedy the discriminatory effects of previous system
2. Special admissions programs do not create racial classifications — inclusion of race as a consideration is attempt to correct acknowledged error resulting from use of previously discriminatory methods. All admitted applicants are qualified for admission independent of race, so race is not a determinative factor — there is therefore no invidious discrimination against non-minority applicants
3. Use of race in special admissions programs represents a valid exercise of power to remedy and avoid unlawful discrimination
1. Use of racial classifications as remedy to discrimination is proper so long as plan represents no racial slur or stigma
2. Equal Protection Clause does not guarantee right to admission — it is not a fundamental right — just guarantees that will not be denied on account of race

1. Racial Awareness is not the Equivalent of Discriminatory Intent (United Jewish Organizations of Williamsburgh v. Carey)
2. Equal Protection Does not Require That Everyone be Equal, Just That They Count Equally. Special Admissions Programs are Designed to Make Minorities Count Equally, and Promote the Individual Equality Necessary to Enjoyment of Individual Liberty in a Just and Democratic Society
3. Use of Racial Criteria That do not Stigmatize and That Serve a Genuinely Compensatory Purpose are Permissible by Analogy to Similar Gender Classifications (Califano v. Webster)

1. Increased Admission of Minority Students Serves Multiple Societal Needs
1. Minority communities are underserved by professionals — minority professionals are uniquely qualified to serve fellow minorities and will likely return to serve in minority communities
2. Alternative admission procedures are consistent with Congressional intent to facilitate and increase minority enrollment
3. Diverse student population benefits students, educators and the community
1. Presence of minority students increases future professional’s awareness and sensitivity to the needs of minorities
2. Affords students experiential exposure to the differing perceptions, behaviors, reactions and aspirations of peers from other backgrounds when they are especially receptive to new experiences
3. Educators benefit from stimulation and interchange created by presence of non-majority students — broaden perspectives and develop sensitivities and interpersonal skills from diverse student enrollment
4. Minority professionals serve as necessary role models for minority youths so that they will aspire to professional futures
5. Provides diversity of leaders on national front
2. Because Traditional Numerical Indicators do not Adequately Predict or Correlate With Future Success, and Since Reliance on Such Indicators Disfavors Qualified Minority Applicants, Traditional Indicators are Inappropriate Instruments for Admissions Decisions

1. Special Admissions Programs are not Subject to Strict Scrutiny Because There is no Suspect Classification Deserving of Extraordinary Judicial Protection, nor is There a Deprivation of Fundamental Rights. Racial Classifications are not Presumptively Suspect or Unconstitutional
2. Even Subject to Strict Scrutiny, Special Admissions are Constitutional Because They Serve Compelling State Interests of Increasing Minority Professionals, Providing More Professionals to Serve Minority Communities, the Fairness of Including Minorities in a Publicly Supported School in a State With a High Minority Population, the Diversification of the Student Body for the Benefit of Students and Faculty, to Provide Role Models for Minority Youth, and to Countervail Racial Polarization
3. No Viable Alternatives Exist to Effectively Achieve the Compelling Interests

1. Special admissions programs are only constitutionally permissible when they: (1) are not arbitrary in giving preference to one kind of ethnic group without showing why other ethnic groups similarly situated have not even been considered; (2) are not concerned with race alone but also provide relief for other groups who have suffered prohibited discrimination such as color, sex, religion and national origin of all types; (3) demonstrate that those included in the “unfavored” group will not be discriminated against in a prohibited manner by the program itself; and, (4) establish a sufficient data base indicating more precisely why such a program is needed, how long it is to last, and who is to benefit therefrom
2. When racial classifications are used without allowing properly for their impact on other disadvantaged and discriminated groups, it is not a matter of policy left to institutional discretion, rather it is for the courts to decide their constitutionality

1. Implementation of Special Admissions Programs is not Voluntary When Absence of Such Programs Would Exclude Racial Minorities
1. Traditional numerical admissions criteria are known to have an exclusionary impact on racial minorities as an effect of past racial segregation in education. Minorities excluded by traditional criteria have been shown to be fully qualified to matriculate into programs and succeed academically and professionally
2. Administration of a law neutral on its face but having a disproportionate impact on a targeted populace is racial discrimination (Yick Wo v. Hopkins)
3. Educational admissions programs that have differential or disproportionate impact on racial minority, though facially neutral, are racially discriminatory and violative of the XIV Amendment
4. Special admissions programs promoting racial integration are constitutionally mandated when shown that a professional school has excluded racial minorities through its admissions system
1. XIV Amendment imposes on professional schools proscriptions against racial exclusion in the classroom at least as great as those levied against public school boards in the hiring and promotion of school system professionals
2. Publicly supported professional schools have duty to develop non-exclusionary admissions policies in order to provide access to minorities to professional careers
3. When it is know that use of race as a factor will produce qualified participants in the educational process from all races, not adopting such measures is in opposition to constitutional law and reason
2. Congress has Consistently Legislated in Favor of Promoting Racial Integration. To Overturn Special Admissions Programs Would be to Disregard the Guiding Hand of Congress

1. Race is a Valid Consideration in the Admissions Process Where Use of Racial Classification is for Affirmative Purposes of Improving Service to Underserved Areas, Providing Career Opportunities to Groups Within Society Previously Denied Them and Remedying Past Discrimination
2. Some Subjective Judgments Must be Made in Assessing the Needs of the State and the Likelihood That one Applicant More Than Another Will Tend to Serve Those Needs. Use of Race as one of Many Measuring Tools is Relevant, Rationally Related to the Enunciated Purposes, and in Pursuit of a Compelling State Interest
3. It is not Unconstitutional for a State Authority to Consider Racial Factors and Take Steps to Relieve Racial Imbalance

1. Minority Admissions Programs for Medical School are Vital and Necessary to Providing Adequate Health Care
1. Critical shortage of medical care in urban areas is correlated to race as urban areas are typically highly concentrated in minority populations. These areas go severely underserved and have a greater need for primary care physicians
2. Minority students admitted through special admissions programs are substantially more likely to return to practice in underserved urban areas
3. Minority admissions programs are the most efficient approach to delivering health services to critical shortage areas because
1. Critical shortage areas are disproportionately minority
2. There is a high disease incidence suffered by people from critical shortage areas, who are predominantly minorities
3. Minorities overwhelmingly choose to practice in critically underserved areas
4. Alternative mechanisms will not work unless in conjunction with special admissions. Cannot rely on mere good intentions
5. Rights of millions of people residing in critical shortage areas are at stake in decision regarding minority admissions programs
2. Minority Admissions Programs do not Violate the Equal Protection Clause
1. Racial classifications are not per se unconstitutional — when used to promote integration and overcome past discrimination and exclusion, they do not fall within invidious discrimination or have a segregative and discriminatory impact as no class is entirely excluded
2. Racial classifications are permissible when not used to deny equal protection of the laws but to secure equal protection of the laws
3. Strict scrutiny should not apply as there is no suspect class. Non-minority class does not meet any of the criteria for being suspect:
1. Sharing a common inalienable racial characteristic separating a group from the majority
2. A stigma of opprobrium historically attached to the group by the majority
3. Political impotence
4. Interests of majority can be assumed to be adequately represented by the existing majority authorities, so strict scrutiny is inappropriate
5. Rigid application of strict scrutiny to program designed to remedy extreme absence of health care in critical shortage areas would frustrate purpose of the test

1. There are two Distinguishable Uses of Race:
1. To trigger the application of different admissions standards
2. To interpret and evaluate evidence essential to the uniform application of uniform admissions standards to applicants of different races
2. Use of Race is Essential to Interpret Evidence in Order to Secure the Uniform Application of Uniform Admissions Standards to Applicants of Different Races. An Applicant's Race has Empirically Demonstrable Significance in Evaluating Evidence Bearing Upon Potential Competence and Potential Contribution
1. Race, class, culture or national origin operate to distort the accuracy with which tests reflect potential competence at communication skills — especially with language barriers or cultural dialects
2. Poor performance according to traditional numerical test and criteria may only reflect a divergence of values, cultural assumptions, and perspectives — not necessarily indicative of competence. Knowledge of race of applicant is critical to interpreting such data and assessing applicant’s actual competence
3. “Tests measure acculturation or readiness to profit from the dominant culture’s traditional instructional mode.” Do not measure potential to achieve competence and cannot be predictive of potential to achieve professional competence via other pedagogic methods than the one specifically tested
3. Racial Identity is one Piece of Relevant Evidence Predicting Career Patterns and Serving the Underserved Minority Communities

1. Consideration of Race-Related Criteria is Required to Compensate for Educational Deprivation Suffered by Non-Whites, Resulting From the Institutionalized Racism and Discrimination in the School System. Can’t Expect Students who Have Been Severely Handicapped in Earlier Phases of Education to Compete on an Equal Basis — “Some Discounting Factor Must be Utilized to Compensate for the Poorer Quality of Academic Preparation; and Since Race is the Factor Which Relegates Certain Students to Inferior Primary and Secondary Schools, Race Must, by Necessity, be Utilized as a Factor in Evaluating Their Applications for the Higher University Systems.”
2. Magnitude of the Unmet Health Care Needs of Non-Whites and the Historical Imperatives That Engendered the Enactment of Title VI Require Race-Related Criteria in Order to Effectuate the Most Expeditious Relief Possible
1. Historical inadequacy of health care treatment available to non-whites displays a conspiracy of circumstances which makes it exceedingly difficult for non-whites to reach a state of health. The unmet health care needs of non-whites amounts to a violation of international laws of genocide
2. Legislative and social history of Title VI require quick and visible progress with high impact in the immediate future — each independent governmental entity must take action to eliminate its own particular manifestations of racial discrimination
1. Use of special admissions programs designed to produce more physicians to meet the critical health needs of non-white communities, is aimed at reducing discriminatory racial disparities in quickest way possible
2. Balancing of interests favors program as decrease in opportunity to enter professional school is outweighed by need for effective means of alleviating results of health care deprivations such as death and disease
3. Non-white communities have special health care needs which require use of race-related criteria in selecting students. Use of race as one component of the entire selection process serves to substantially increase the number of doctors who provide services to non-white communities
1. Race-related admissions programs are undertaken to alleviate continuing discrimination, recognizing that minority professionals are more likely to serve minority communities
2. Training more minority professionals (doctors) is the most practical and effective way to solve problems of underserved minority communities and race-related criteria are essential to selecting more minority students

1. Racially Integrated Legal Profession Serves a National Goal of the Highest Priority
1. Racially integrated legal services provide equal access to justice — integrated bar is essential to providing equal access to system of justice for all individuals
1. Increasing number of minority lawyers is essential to recruitment of most highly motivated persons for legal services work
2. Increase in number of minority lawyers is necessary to effectively serve minority communities
2. Racially integrated legal profession is necessary to provide inclusion of minorities in positions of real influence — legal system has disproportionate influence on government institutions. Integration is essential for reaffirmation of faith in our government of laws
2. Special Admissions Programs are Valid Means of Preventing Rejection of Qualified Applicants Whose Academic Performance may Have Been Affected by Racial Discrimination, in Order to Achieve Racial Integration
1. Students admitted under special admissions programs are qualified for admission, but would be rejected because of surplus of qualified applicants and their inability to perform equally according to numerical indicators because of past discrimination
1. Minority students admitted through special admissions programs are uniquely qualified, and more likely, to provide professional services to underserved minorities and disadvantaged communities
2. Many abilities or competencies required for professional or academic success are not accounted for by numerical indicators and excessive reliance on such indicators is misplaced
2. Race-conscious special admissions procedures are the only means of achieving a racially integrated professional community and society
1. Without special admissions programs minorities would be virtually excluded from professional schools and careers
2. Failure to consider race would freeze the exclusionary conditions and perpetuate the effects of past and present discrimination
3. Remedial use of Race-Conscious Admissions Procedures to Correct Under-Representation of Minorities Does not Offend the Constitution
1. Remedial use of race-conscious procedures is not prohibited by the XIV Amendment — racial classifications are subjected to the strictest scrutiny but are not illegal per se. While racial classifications that are invidiously discriminatory are unconstitutional, where the traditional reasons for disfavoring racial classifications are absent, distinctions based on race are not forbidden
1. Racial classifications for special admissions are not irrelevant to a constitutionally acceptable purpose and do not reflect official hostility toward the members of a particular race. Race-conscious admissions programs are reasonably, if not essentially, related to achieving compelling interest
2. Special admissions programs are not invidious, since there is no stigmatization or assertion of inferiority
3. Special admissions programs are aimed at correcting a wrong — they do not completely exclude a racial group on account of its race, they are limited in scope to admit only those who are otherwise qualified, and they are limited in duration
4. There is no infringement on a right since there is no right to admission — just right to full and fair consideration of application, which is not prevented by special admissions programs
2. Voluntary efforts do not require a judicial finding of discrimination — policy decisions have been left to discretion of institutions whose powers differ from those of courts. Congressional intent in Title VI displays expectation of voluntary action to eliminate results of racial discrimination even absent a judicial finding, as using the courts as the principal means of combating discrimination would distort their proper role. Such voluntary programs are essential to realizing goal of equal opportunity

(UC) Brief for the Mexican American Legal Defense and Educational Fund, La Raza National Lawyers Association, County of Santa Clara, California, League of United Latin American Citizens, G.I. Forum, National Council of La Raza, Los Angeles Mecha Central, Image, National Association for Equal Educational Opportunity, Association of Mexican American Educators, John Vasconcellos, Unitas

1. Impossible to Isolate Consequences of Segregation and Discrimination in Education From Effects of Discrimination in Society at Large. State Educational System Charged With Providing Equal Access to all Segments of its Population Must be Allowed to Evaluate the Effect That it Believes These Policies Have on Minority Communities and to Compensate for Them
2. Because of Severe Racial/Ethnic Disparities Resulting From Segregation and Discrimination, Responsible Officials Must be Permitted to Address Disparities Through Extraordinary Measure of Affirmative Action
3. Affirmative Action Admissions Programs Serve Compelling State Interests
1. Absent such programs, racial minorities would be almost entirely excluded from professional schools and professional fields
2. All-white professions have failed to adequately serve the needs of minority communities — minority applicants are more likely to practice in minority communities and most minority students indicate a desire to serve the unmet needs of these communities
3. Minority presence in school serves to make non-minority students more aware of the needs of minority communities and will spur concern for such communities
4. Minority professionals are uniquely qualified to serve minority communities because of language and cultural differences — there is a positive need for minority professionals
5. The disparity of service between minority and non-minority communities is severe and the unmet needs of minority communities are critical

(UC) Brief for the American Bar Association

1. Consideration of Race is Constitutionally Permissible When Used With Other Factors for the Non-Invidious Purpose of Making Professional Education Available to Members of Minority Groups
1. “Not every remedial use of race is forbidden.” (United Jewish Organizations of Williamsburgh, Inc. v. Carey)
2. School authorities are traditionally charged with the broad power to formulate and implement educational policy — some policies are within their broad discretionary powers even though they would be beyond the powers of a federal court absent the finding of a constitutional violation
3. Use of race for the benign purpose of promoting more equal educational opportunities and fuller integration is accepted as constitutionally permissible — race must be considered in formulating the remedy
4. Use of racial criteria to equalize educational opportunities and further integration does not result in invidious discrimination since it does not stigmatize, exclude or disadvantage the members of a discrete and insular minority
2. Program to Encourage Admission of Minority Students to Professional Schools Serves Legitimate and Substantial State Interests
1. Individuals from varied backgrounds and interests — and from varied ethnic and racial heritages - contribute to the vitality of the academic experience
2. Inclusion of minorities in class exposes non-minority students to varying viewpoints held by different members of particular minority group
3. Interchange of ideas between students and professional with diverse backgrounds enhances their ability to deal effectively with the problems they confront and make professions more responsive to the needs of all segments of our heterogeneous society
4. Input from minority members adds to others’ comprehension of the needs of minority communities
5. By opening doors to professional careers to qualified minority students, special admissions programs compensate for the inferior primary and secondary education that many minority students received — minority students are otherwise discouraged from applying
6. Greater number of minority professionals will provide good role models for younger members of minority communities
3. Because Remedial Admissions Programs Serve the Compelling State Interest of Effecting Integration in Education and are the Least Restrictive Means to Achieve Integration, Such Programs Withstand any Level of Scrutiny

1. Special Admissions Program Violates a Denied Individual’s Rights to the Equal Protection of the Laws
1. The nature of a program that reserves a specified number of openings for separate consideration through a special admissions process operates as a quota and is distinct from an affirmative action program
2. Special admissions program deprives denied applicant of equal protection
1. XIV Amendment offers protection against state imposed racial discrimination and against state action encroaching on certain fundamental rights
2. Standard of review in racial discrimination cases does not vary depending on the purposes of the discrimination, or the race of the person discriminated against
3. State imposed discrimination is permissible when rationally related to legitimate government objective, unless discrimination affects fundamental right or is based on suspect classification like race — then subject to rigorous test of strict judicial scrutiny
4. Under XIV Amendment, racial discrimination is inherently suspect regardless of the purpose of the discriminator or the identity of the person victimized, and has always been subject to strict judicial scrutiny
2. There are Reasonable Alternatives to Achieve State’s Goals Which Impose a Lesser Limitation on the Rights of the Group Disadvantaged by the Classification

1. Quotas are Only Legally Justifiable in Instances Where Discrimination was Practiced With the aid of the law, and When There is a Judicial Finding That the Discrimination Cannot be Effectively Reversed Without the use of Quotas
1. Must show past history of intentional segregation to undo
2. Quotas for sole purpose of assuring substantial minority group participation are not permissible
2. Affirmative Action Programs Represent a Shift From Constitutional Focus on Individuals and Individual Rights to Group Rights and Sociological Group Statistics for Their own Sake
1. Concept of group statistical rights is destructive of American way of life under the Constitution
2. Group after group will achieve minority status so that emphasis on race, color and national origin will become determinative in all facets of life
3. Focus should be on individual rights and individual standards of excellence for admission — not membership in a particular statistical racial or ethnic group
4. Governmental activity to extirpate racial prejudice must not be undertaken at the expense of the innocent citizenry as a whole or of members of other ethnic and minority groups — redress at the expense of others is really just the perpetuation of the wrong in reverse, leading to future grievances
5. Make the public more race-minded and engender racial tensions and prejudice

(Bakke) Brief for the American Federation of Teachers

1. Constitution Requires That There Shall be no Discrimination Based on Race — Quota Programs Violate This Fundamental Principle
1. Cannot have a situation where all are equal but some are more equal than others — if racial discrimination is wrong it is wrong for all purposes and regardless of the ends sought to be attained by the discrimination
2. In addition to being ideologically and philosophically wrong, quotas are impractical because of problems in defining scope of quota and who should properly qualify as a minority
3. Quotas fail to respect individual and individual rights
4. Legislative history of Title VII shows that quotas and preferential treatment on the grounds of race were not to be required
5. Quota systems really hurt those groups they are intended to protect by limiting the number of minority students who can be admitted
6. Invidiously discriminates against non-minority applicants who may be equally disadvantaged — purely racial classification
7. Racial classifications are no less suspect because they exclude non-minorities instead of minorities
8. Quota systems are not the most reasonable nor the least invidious means of achieving objectives
2. Programs Must Guarantee Truly Equal Opportunity to all Persons
1. Race-conscious preferential treatment does not do away with past effects of discrimination, just perpetuates that discrimination under the guise of benign paternalism
2. Alternative programs need not be racially blind, just racially neutral — equal protection does not permit racial preference
3. Special admissions programs attach a stigma of inferiority to those admitted through them, and perpetuate a myth of minority inferiority
4. Remedial programs should be introduced at an entry level to eliminate educational disadvantage

1. Special Admissions or Preferential Treatment Programs Require a Clear Definition of who is to be Considered by Such Programs and who Will Benefit From Them. Allowing for Self Designation Promotes Fraud, and Providing Only Vague Guidelines for who Qualifies Will Arbitrarily Exclude Some who Rightfully Should Qualify, and Include Others who Should not Qualify
2. Special Admissions Programs are Desirable as a Mechanism to Promote Enrollment of Economically and Educationally Disadvantaged Students. Using Race as the Ground for Qualification is Inappropriate — it is Overbroad in Including Persons From Racial Minorities who Have Individually Suffered no Effects of Discrimination, and it is Under-Inclusive in Excluding Non-Minority Persons who Have Suffered Effects of Discrimination and are Disadvantaged
3. Racial Classifications Wrongly Assume That all Whites are Monolithic — in Fact, Many Whites who do not Qualify for Special Treatment are Ethnic Minorities and Have Suffered Invidious Discrimination, but Will be Burdened With by the Disadvantage Imposed by a Special Admissions Program. Others Will Suffer From Such a Program by Bearing its Costs Despite not Being at Fault for the Disadvantage and Discrimination Against Minorities
4. Other Racial Classifications That Have Been Upheld Without Concrete Definitions did not Deprive Persons who Were not Members of a Minority of Benefits Which They Would Otherwise Enjoy

1. Exclusion of an Individual on the Basis of Race Violates the XIV Amendment and Cannot be Justified on the Basis of Social Engineering
1. Freedom from racial discrimination is every applicant’s right — a state institution may not apply different criteria to applicants on the basis of race. Special admissions programs flagrantly discriminate in 3 respects:
1. White applicants who would be admitted absent a quota reserving spaces for members of preferred races, are denied admission
2. Applicants of non-preferred races are denied the opportunity to be admitted/denied consideration on the basis of their race even though their qualifications are equal to those of applicants from the preferred races
3. Inherent in preferential programs is discrimination not just against whites as a whole, but against discrete white minorities who have also suffered from disadvantages and past discrimination
2. XIV Amendment is not limited to protection of particular minority groups — requires protection of individual rights on an individual basis. States are required to make decisions which affect individual rights in a racially neutral manner
3. Racial classifications that have been upheld on remedial grounds have all followed judicial, administrative or legislative determinations of discrimination and have not substantially deprived other racial groups of the benefit of the state program or opportunities to share them
2. State Discrimination Depriving Individuals of Professional Opportunities Because of Their Race Cannot be Justified Because of a Benign or Socially Desirable Motive
1. Objectives of increasing minority representation in professions in order to provide services to otherwise underserved minority communities, and remedying past discrimination do not justify racially discriminatory measures
1. No constitutional guarantee that number of individuals of a particular race in a profession will be proportionate to their number in the population, otherwise must provide for proportional representation of other discrete ethnic or national minority groups, women, etc.
2. No evidence that minority professionals are more likely to serve minority communities, nor should purpose of professional education be to train professionals of racial minorities to serve those same minorities — objective is to serve entire community
3. Remedial programs are inappropriate absent a showing of past discrimination, and vague statistics are no basis for determining constitutional rights
4. Voluntary adoption of measures does not make programs more justifiable — removes them from the ambit of state action which eliminates a forum for intervention by public or outside authorities
2. Racial consideration for admission to professional schools will have deleterious and unjust effects on society
1. Destroys expectation that admission is based on individual merit — potential applicants lose ambition and incentive to achieve, and potential customers lose confidence in professions
2. Necessarily carries the implication that people of different races are inherently unequal — attaches a stigma of inferiority
3. Inflames racial consciousness and awareness, provoking ill will toward members of the preferred class
4. Have inherent problems of administration and definition — lead to unseemly determinations of racial membership
3. Legitimate objectives can be accomplished through racially neutral means

1. XIV Amendment Prohibits State From Acting in any way to Discriminate for or Against a Person Because of his Race
2. Racially Preferential Treatment is Unfounded Since it Erroneously Assumes That the Majority is Monolithic When in Fact it is Pluralistic — Many Segments Within Majority Have Suffered Invidious Discrimination but Receive no Protection or Preferential Treatment on Account of Their Race. Additionally, Since “no White Majority Exists,” Member of Majority Does not Have Greater Access to Political Process to Protect own Interests
3. XIV Amendment Protects all Individuals From Unlawful Discrimination on Account of Race, Creed or Color — not Limited to Protecting Only Specific Groups or Persons
4. Artificial Barriers to Obtaining an Education are Unconstitutional and in Violation of the Equal Protection Clause
5. Racial and Ethnic Classifications are Suspect and Subject to Strict Scrutiny
1. Presumptively invalid irrespective of whether classifications are negative or affirmative in intent
2. Quotas require an even greater standard of strict scrutiny because they are diametrically in opposition to the concept of individual merit and freedom of choice
3. Focusing on benign or beneficial impact on those receiving preferential treatment ignores the invidious discrimination inflicted on the individual harmed by such a program
4. Makes some people more equal than other people before the law

6. Less Invidious Alternatives are Available and Should be Attempted Before Racial Classifications are Used

1. Racial Quotas Cannot be Benign — are Always Malignant in Defying the Constitutional Pronouncement of Equal Protection of the Laws, Reduces Individuals to a Single Attribute and is the Antithesis of Equal Opportunity
2. No State Policy is Sufficient to Overcome the Invalidity of a State’s Racial Classification — no Evidence That a Minority Professional Will Better Serve a Minority Community
3. Race Cannot be Equated With Disadvantage or Deprivation — Affirmative Action Programs Should Properly Address Disadvantage in Education Irrespective of Race
4. XIV Amendment is not Limited to Protecting Only Particular Racial Minorities — Offers Protection for Individuals. Equal Protection Does not Depend on Membership in a Discrete and Insular Minority
5. Civil Rights Act of 1964 Prohibits Discrimination on the Basis of Race

1. Special Admissions Programs Apply Same Criteria in Different Ways, Discriminating on the Basis of Race, so They are an Attempt to be “Separate but Equal” and Thus Violate Brown
2. Discrimination on the Basis of Race Violates the XIV Amendment Regardless of at Whom it is Directed — Must be Viewed From the Standpoint of the Person Discriminated Against so it is Never Benign. Discrimination is Always Personal and Individual to Person Suffering From it — Doesn’t Matter That Entire Racial Group is not Excluded
3. Equal Protection Dependent on Race is no Longer Equal Protection
4. Sociological Assertions Cannot Justify Abandoning a Constitutional Standard of Duty — Race Conscious Methods Cannot be Justified on Remedial Grounds on Basis of Statistical Generalizations — Must Show Purpose or Intent to Discriminate
5. Race-Conscious Plan as Enhancing Education of all Students is a Preoccupation with Peer-Group Relationships Assuming That Characteristics of Other Students are What Matter Most to Performance

1. Race-Conscious Admissions Programs Perpetuate Racism and Separatism
1. Implied an assumption of inferiority of minorities and an inability to compete academically on an equal basis
2. Wrongly assumes that all racial minorities have been discriminated against to same degree or in same manner, having an equal impact on education and academic performance that can be remedied by a single uniform policy
3. Assumes that admission of minorities to will directly improve service to disadvantaged minorities. Premised on 5 flaws:
1. Not documented that minority students return to practice in minority communities
2. Other reasons contribute to poor service among disadvantaged
3. Many non-minorities are also underserved — cannot equate lack of service with race
4. Assuming service to particular minority communities perpetuates racial separatism
5. No mechanism is shown whereby quota programs match students to underserved racial communities
4. Quotas are not constitutionally compelled — illegal discriminatory barriers have already been eliminated, there already exists a pool of qualified candidates so no artificially created supply is necessary, and no matter how noble objectives of program are, they can be achieved by methods that don’t require racial classifications
2. Race-Conscious Admissions Programs Violate XIV Amendment
1. Conferring a preferred status on account of race violated equal protection
1. Well intended purpose is not determinative
2. Deliberate exclusion on basis of race is discriminatory regardless of which race is affected
3. Wrongly assumes a monolithic majority — in fact, majority is segmented into ethnic minorities, many of whom have been discriminated against
4. Temporary nature of program does not save it from demands of Constitution
5. Assignment of preferred status to particular racial groups is violation of equal protection of other racial groups
6. Quotas stigmatize the very racial minorities they purport to help
7. Quotas demoralize professional education by depleting the competitive nature of admission based on merits and accomplishment
8. 8. State action resulting in arousal of racial antagonism is forbidden by XIV Amendment
2. Because racial distinctions are irrelevant to legitimate legislative purpose, racial classifications are subject to strict scrutiny
3. Special admissions programs cannot be shown to be the only way to increase minority representation and attaining a diverse student body, nor is it shown how such programs benefit racial minorities at large. Therefore, special admissions programs fail strict scrutiny

1. Racial Discrimination by a Government Agency is Only Permissible to Serve a Compelling Public Necessity
1. XIV Amendment grants equal protection as an individual right, not a group right. Differential treatment on the basis of race denies an individual’s right to be free from discrimination, so past discrimination suffered by members of another group is no justification for present discrimination against an individual
2. Racial classifications are presumptively invalid because of their irrelevant and invidious nature
3. Racial discrimination is invalid regardless of the victim of discrimination and regardless of whether it is invidious or benign — presence of stigma is not necessary. Strict scrutiny does not consider whether classification is benign or invidious — just whether it is necessary to the accomplishment of a permissible state objective
4. Racial quotas are inherently unlawful
2. Race-Conscious Special Admissions Programs Cannot be Justified as Serving a Compelling Interest
1. Programs do not address the claimed interests
1. Assuming minority professionals are uniquely skilled assumes that particular skills are racially based
2. There is no evidence that minority professionals are more likely to practice in underserved minority communities
3. Minority presence in professional schools will not enhance majority’s awareness of minority problems because the problems of concern are linked to economic disadvantage, not to race
4. Unsupported speculation to assume that contact with a greater number of students from particular racial and ethnic groups will lead to members of majority practicing in minority communities, or will build bonds with minority professionals
5. Relies on “group think” that race and ethnicity outweigh all other factors in formulating views and needs
2. What really motivates programs is belief that representation in each aspect of society should be proportionate to representation in population as a whole — would result in a society permeated by officially sanctioned racial, ethnic, religious and sexual quotas
3. Remedial measures can only be justified by a showing of actual past discrimination resulting in disadvantage. Otherwise, reliance on membership in a racial group alone results in race conscious society and racial prejudice is legitimated rather than minimized
3. Preferential Admissions Systems Have Harmful Effects
1. Unfair to individuals in punishing innocent persons who bear no personal responsibility for historic wrongdoing
2. Acceptance of race as an admission factor will progressively lead to consideration of race in other aspects of operation
3. Minority students who excel strictly on merit will carry stigma of inferiority of having benefited from double standard
4. Civil Rights Act of 1964/Title VII Explicitly Repudiate Concept That Race is a Job-Related Qualification — Voluntarily Granting Preferential Treatment is Statutorily Prohibited
5. The Legitimate Objectives Pursued by Special Admissions Programs can be Achieved Without Preferential Treatment on the Basis of Race — can Consider Numerical Indicators in Light of Background to Account for Disadvantage and Past Hardship, or Indication of Genuine Commitment to Service in Underserved Communities
6. Past Cases Upholding Racial Classifications Have Involved Factual Finding of Actual Discrimination and Have not Conferred Preferential Treatment at the Cost to Other Individuals

1. State may not Deny Individuals Opportunity to Compete for Benefits in Order That Other Individuals can be Awarded Such Benefits Based on Their Race
1. Equal protection protects individuals of all races — majority is not a cohesive unit, and cannot consider injury to random members of majority benign
2. Special admissions programs operate as quotas to invidiously discriminate against non-minority applicants
1. Rejecting more qualified applicants in favor of less qualified applicants on the basis of race violates precept that merit should determine an individual’s place in society
2. Making membership in certain racial group determinative for access to special admissions introduces an irrelevant factor since many outside of preferred racial group suffer disadvantage, and many within racial group suffer no disadvantage or discrimination
3. Strict scrutiny applies whenever state imposes racial classification to deprive an individual of a significant right
1. Discrimination based on race is suspect — no less so for non-minorities than for minorities
2. Right to equal protection of laws is not a group right reserved only for discrete and insular minorities — it is a personal right for individuals
3. Acceptance of racial classifications for benign purposes would result in encouragement and exacerbation of racial divisions
2. Only Legitimate Compelling Interest Involved is That Minorities be Encouraged to Enter Professional Schools and Have a Fair and Equal Opportunity to do so
1. Interest in achieving an acceptable level of racial representation in any given field by means of racial quotas falls to the overriding interest of obtaining the best possible performance in all professions and occupations. Quotas do not serve a compelling interest
2. Permissible concern of state is to provide equal opportunity for disadvantaged minorities to gain admission on the basis of their own merits, and to instill in minority aspirants a recognition of equal opportunity so they will be encouraged to apply
3. Compelling interest in improving service to underserved communities does not justify preferential admission — no indication that minority students will actually practice professionally in underserved areas, and there are more direct solutions to underserved communities (increased funding, etc.)
3. Use of Racial Quotas to Achieve Desired end Unnecessarily Burdens the Constitutional Rights of Others in Violation of XIV Amendment, and Less Invidious Alternatives Exist to Accomplish Objectives

1. Preferential Admissions on Basis of Racial Criteria Must be Narrowly Tailored Remedial Measures Addressed to Specific Acts of Past Discrimination
1. Special admissions programs are designed to correct general societal discrimination at the expense of non-minority individuals
1. Absent prior overt acts of discrimination against minority individuals which have directly resulted in the present pervasive disadvantages and disabilities suffered by such individuals, non-minority individuals cannot be held responsible for general societal discrimination — society as a whole must bear responsibility
2. Amounts to retribution exacted from a few innocent members of the racial majority
2. Cases upholding racial classification for remedial purposes involved circumstances in which it was possible to identify a particular source of discrimination and the causal relationship between that source and the consequences flowing from it — enabled fashioning of narrowly tailored remedies specific to the particular discriminatory consequences
3. Cases upholding racial classifications did not impinge on constitutional rights of non-minority individuals
2. Preferential Admissions Deny Non-Minority Individuals of XIV Amendment Right to Equal Protection
1. Preferential admission creates a suspect classification on the grounds of race and is subject to strict scrutiny — irrelevant that benefits minority or has benevolent purpose
2. Interests served by preferential admissions are not sufficiently compelling to satisfy strict scrutiny
1. General societal interests of increased minority involvement and better service for minority communities are themselves racially prejudicial
2. Interest of eliminating effects of past discrimination cannot overcome individual interests at stake since there is no showing of specific past acts of discrimination
3. Less drastic means are available to achieve objectives of preferential admission

3. Racial Preferential Treatment Programs Have Practical Effects Counter-Productive of Purported Intent and Correlative Effect of Discrimination Against Non-Minority Individuals

1. Under XIV Amendment, all Racial Classifications are Subject to Strict Scrutiny — Must be Administered According to Neutral Rules and Objective Principles
1. Nothing in XIV Amendment suggests permissibility of double standard for equal protection
2. Conceptual majoritarian premise embodied in double standard assumes homogenous majority with sufficient access to political mechanism to protect its own interests when threatened. Special admissions programs result from discretionary policy choices not political process and should not be entitled to deference as a result. Must be subjected to strict scrutiny
2. Racial Classifications for Preferential Admissions Programs are not Necessary to the Achievement of a Compelling State Interest
1. Racial classification deprives non-minority individuals of the opportunity to be considered for admission
2. Only possible compelling interest is remedying specific past racial discrimination by the institution using such classifications — must have showing of past racial discrimination. Premising remedy on past societal discrimination is unworkable because varies, even within specific racial group, from place to place, time to time, and degree, and virtually all racial or ethnic minorities have suffered discrimination at some point. Reliance on societal discrimination would foster competition among racial groups on basis of relative histories of past discrimination
3. Objectives advanced to justify programs are not necessary and compelling
1. Diversity of student body for educational experience — none of the factors valuable for diverse experience are related to race
2. Race is irrelevant to improving service to underserved communities — no showing that minorities are better able, or more likely, to serve minority communities
3. Goal of providing role models does not have a strong congruence with methods used
4. Other alternatives are available to effectively serve objectives
3. Government may not use Racial Quotas to Achieve Compelling Interests
1. Use of quotas makes race dispositive in the admissions process
2. Quotas and proportional representation formulae perpetuate and legitimize racial consciousness
3. Concept of proportional representation for groups is completely antithetical to the concept of individual rights embodied in the Equal Protection Clause
4. Absolute preferences are forbidden even as remedial measures
5. Preferential treatment in the form of quotas may only be imposed by a court upon a finding of past discrimination

1. Reverse Discrimination is an Illusory Remedy
1. Works to effect a harm/victimized those who are not considered preferred minorities
2. Because we are a county of minorities, arbitrary decision as to which groups are to be included and which excluded leads to possibility that anyone can become a victim of reverse discrimination
3. Reverse discrimination stigmatizes its beneficiaries by confirming derogatory and patronizing stereotypes
4. Evidence indicates that preferential admissions programs lead to lowered professional standards of performance
5. Alternative means exist to accommodate disadvantaged individuals regardless of race
6. Increasing diversity in student body is beneficial and encouraged, but cannot justify depriving someone of his constitutional right to be free from racial discrimination
7. No indication that minority students are more likely to practice in underserved communities — there are more direct ways of improving service to underserved
8. Reverse discrimination polarizes American society — creates a collection of arbitrarily chosen minority groups competing for preferential treatment
9. Group racial identification is not a proper criterion for employment — skills, not race, are relevant factors for occupational qualification
10. Reverse discrimination requires governmental ethnic categorization — which leads to dangerous possibilities
11. Reverse discrimination is racist — selection based on race rather than merits is discrimination, and past discrimination is not an excuse for discriminating in favor of a minority person against an innocent member of another group. Proper affirmative action programs are designed to ameliorate effects of past discrimination
12. Reverse discrimination is morally wrong — violated concept of distributive justice
2. Reverse Discrimination is Offensive to Constitution, Statutes and Judicial Authority
1. Quotas are not remedial measures as there is no showing of past discriminatory action
2. Victims of reverse discrimination cannot rely on recourse to the political process because reverse discrimination is not actually perpetrated against all members of a majority group simultaneously, and there is no political control over discretionary policy makers
3. Title VII and Civil Rights Act of 1964 show Congressional intent that reverse discrimination is not acceptable remedial mechanism

1. Race may be Considered to Counteract the Effects of Prior Discrimination
1. Consideration of race has been found to be necessary for remedial programs, even when discrimination has not been proven by traditional means
2. Both the legislative and executive branches have used race in programs to overcome the effects which result from past racial discrimination
3. States have broad authority to promote the purposes of the Civil War amendments — although don’t have same authority as Congress, are free within constitutional constraints to undertake remedial minority-sensitive measures
4. Minority-sensitive relief is not limited to correcting discrimination
perpetrated by the institution offering relief
1. Can take into account consequences of discrimination elsewhere in society — otherwise consequences that flow over into society would be irreparable
2. Institutions need not await judicial determinations before attempting to overcome their own discrimination
2. Judicial Review of Minority-Sensitive Measures Should Focus on Whether Programs are Narrowly Tailored to Remedy the Effects of Past Discrimination
1. Racial classification may be invidious in purpose or effect even though claims to be benign
2. State may not take account of race where such consideration is not necessary to achieve a legitimate governmental objective
3. Because mere racial neutrality is insufficient to address present effects of past discrimination, employment of race-conscious remedial measures should not be abandoned
4. Use of race is narrowly tailored if it enhances the fairness of admissions process
1. When individual measurement or consideration of past discrimination is impractical, categorical means are permitted
2. Race may be helpful in understanding the meaning of an applicant’s credentials
5. There are no adequate alternatives to use of minority-sensitive criteria — race has an importance of its own in this context that cannot be substituted by consideration of disadvantage or other factors — it is the only way to restore victims of discrimination to position would be in but for discrimination, and to make a fair assessment of achievements and potential