ALLAN BAKKE, Plaintiff, Cross-defendant and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant, Cross-complainant and Appellant.
S.F. No. 23311
Supreme Court of California
Sept. 16, 1976
Jacobs, Blanckenburg, May & Colvin, Reynold H. Colvin and Robert D. Links for Plaintiff, Cross-defendant and Appellant.
David Lehrer, Justin Finger, Joy Meyers, Edward Leavy, Arnold Forster and Robert J. Snyder and John Ligtenberg as Amici Curiae on behalf of Plaintiff, Cross-defendant and Appellant.
Donald L. Reidhaar, John F. Lundberg and Gary Morrison for Defendant, Cross-complainant and Appellant.
June E. Moroney, Kenneth L. Karst, Norman Dorsen, Vilma S. Martinez, Sanford Jay Rosen, Roberto S. Martinez, Drucilla S. Ramey, Jack H. Friedenthal, Paul A. Brest, Charles J. Meyers, John Denvir, Crosby, Heafey, Roach & May, Williams, Myers & Quiggle, Emma Coleman Jones, Robert L. Harris, Lennox Hinds, Charles R. Lawrence III and Nathaniel S. Colley as Amici Curiae on behalf of Defendant, Cross-complainant and Appellant.
MOSK, J.—In this case we confront a sensitive and complex issue: whether a special admission program which benefits disadvantaged minority students who apply for admission to the medical school of the University of California at Davis (hereinafter University) offends the constitutional rights of better qualified applicants denied admission because they are not identified with a minority. We conclude that the program, as administered by the University, violates the constitutional rights of nonminority applicants because it affords preference on the basis of race to persons who, by the University‘s own standards, are not as qualified for the study of medicine as nonminority applicants denied admission.
In 1973 and 1974, plaintiff Allan Bakke, a Caucasian, applied for admission to the University, which is supported by public funds. There were 2,644 applicants for the 1973 entering class and 3,737 for the 1974 class. Only 100 places are available each year, of which 16 are filled under the special admission program in dispute; applicants for the remaining 84 places are chosen by recourse to the normal admission process.1
Bakke, who did not apply for consideration under the special program, was denied admission in both years, and was not admitted to any other medical school. He filed a complaint against the University seeking mandatory, injunctive, and declaratory relief to compel the University to admit him,2 alleging he was qualified for admission and the sole reason his application was rejected was that he was of the Caucasian race. The complaint also alleged that all students admitted under the special program were members of racial minorities, that the program applied separate, i.e., preferential, standards of admission as to them, and that the use of separate standards resulted in the acceptance of minority applicants who were less qualified for the study of medicine than Bakke and other nonminority applicants not selected. He claimed he had been the victim of invidious discrimination because of his race, in violation of the equal protection clause of the
The trial court, after considering the pleadings, the deposition and declaration of Dr. George H. Lowrey, the associate dean of student affairs and chairman of the admissions committee, and the interrogatories submitted by the parties, found that the special admission program discriminated against Bakke because of his race and that he was entitled to have his application evaluated without regard to his race or the race of any other applicant. It found against the University on its cross-complaint for declaratory relief. However, the court determined that Bakke was not entitled to an order for admission to the University because, although he was qualified to be admitted in both years in which he applied, he would not have been selected even if there had been no special program for minorities. Thus the court denied Bakke‘s prayer for an injunction ordering his admission.
Both parties appeal from the ensuing judgment—Bakke from the portion of the judgment denying him admission, and the University from the determination that the special admission program is invalid and that Bakke is entitled to have his application considered without regard to his race or the race of any other applicant. Bakke renewed his application for admission subsequent to the judgment, but the University refused to evaluate his qualifications without regard to the special admission program. We transferred the cause directly here, prior to a decision by the Court of Appeal, because of the importance of the issues involved. (
The Admission Procedure
An applicant for admission to the University is required to take the Medical College Admission Test, which measures accomplishment in four distinct areas—verbal, quantitative, general information, and science—and his score on this test is included in the application. The
In 1973, the application form inquired whether the applicant desired to be considered by a special committee which passed upon the applications of persons from economically and educationally disadvantaged backgrounds. The following year a revised form was adopted;3 instead of the question relating to disadvantage, the applicant was asked whether he “describes” himself or herself as a “White/Caucasian” or a member of some other identifiable racial or ethnic group,4 and whether he wished to be considered an applicant from a minority group.
Although for 1974 and the years thereafter no specific question regarding disadvantage was mentioned on the application form, the material distributed by the University referred to a special program to increase opportunities for medical study for students from disadvantaged backgrounds, and between 1971 and 1974 both white and minority applicants applied for the special program.5
The Regular Admission Program
Initially, members of the regular committee determine whether the applicant reflects sufficient promise to warrant a personal interview. Applicants with a college grade point average below 2.5 on a scale of 4.0 are summarily rejected, but a higher average does not necessarily guarantee that an interview will be afforded. In 1973, with 2,644 persons applying for admission, 815 applicants were selected for interviews under the regular program, and 462 interviews were granted in 1974 out of 3,737 applicants.
The interview sessions were conducted by one faculty member of the committee in 1973, but in 1974 each applicant was interviewed additionally by a student member. The interviewer prepares a summary of the meeting, reviews the file of the applicant, including his grade point average and his score on the Medical College Admission Test, and, after evaluating the applicant‘s potential contribution to the medical profession, grades him on a scale of 0 to 100. The applicant‘s file, including a summary of the interview but without the numerical score given by the interviewer, is then reviewed by four other committee members, two of whom are students and two faculty, chosen at random. These four independently rate the applicant on the same scale. The scores are totalled; in 1973 the highest score an applicant could achieve was 500,
This combined numerical rating is based upon an assessment of the applicant derived from information in his application, his letters of recommendation, the interview summary, test scores and grade point average, as well as a consideration of his motivation, character, imagination, and the type and locale of the practice he anticipates entering in the future. For example, because there is a shortage of doctors in the northern part of the state, and Davis is located in the north, some preference is given to applicants from that area who plan to remain there to practice.7 The combined numerical rating is used as a “benchmark” for selection, although exceptions to strict numerical ranking may be made in special circumstances. For example, the University makes an exception in the unusual case of an applicant whose combined rating was “quite high” but not sufficient for admission but who is married to an applicant previously accepted.
Some attrition in acceptances normally occurs each year, and applicants whose ratings approximate those admitted may be placed on an alternate list. The dean of admissions has the discretion to select for the list applicants whose ratings will bring special skills or balance to the entering class; therefore not all unaccepted applicants with high ratings are placed on the list, and those who are so placed are not necessarily listed in order of numerical rating. Two out of three applicants offered admission under the regular procedure ultimately enroll at the University.
The Special Admission Program
The faculty chairman of the special admission committee initially screens the applications of those who seek to enter the University as disadvantaged students, to determine if they may properly be classified as disadvantaged.8 Those who do not qualify as disadvantaged are
The committee interviewed 71 out of 297 disadvantaged applicants in 1973 and 88 out of 628 in 1974. The interview is conducted by one faculty member and one student member of the special committee. The file is then reviewed by other members of the special committee, who rate the applicant.
The special committee prepares a written summary of the qualifications of the disadvantaged applicants whom it recommends for admission, and the regular committee makes the actual determination whether to accept the recommendation. In practice, the special committee‘s recommendations are generally followed. The process of recommendation by the special committee and acceptance by the general committee continues until 16 applicants have been admitted under the special program.
Bakke had a grade point average of 3.51, and his scores on the verbal, quantitative, science, and general information portions of the Medical College Admission Test (expressed in percentiles) were 96, 94, 97 and 72 respectively. His application warranted an interview in both years for which he applied. In 1973, his combined numerical rating was 468 out of a possible 500, and in 1974 it was 549 out of a possible 600. He was not placed on the alternate list in either year.
Some minority students who were admitted under the special program in 1973 and 1974 had grade point averages below 2.5, the minimum required for an interview for those who did not qualify under the special program; some were as low as 2.11 in 1973 and 2.21 in 1974. According to Dr. Lowrey, if an applicant scored lower than the 50th percentile in the science and verbal portions of the Medical College Admission Test, the committee “would look very hard at other things that would be positive” such as motivation, or some explanation for his low scores. The mean percentile scores on the test of the minority students admitted to the 1973 and 1974 entering classes under the special program were below the 50th percentile in all four areas tested. In addition, the combined
Dr. Lowrey stated in his declaration and deposition that the special admission program was designed to afford preferential treatment to persons who are from disadvantaged backgrounds. He stated further that test scores and grades of minority applicants do not necessarily reflect their capabilities, because their low scores might be attributable to the fact that they were required to work during the school year or that they lacked the reinforcement and support which white middle-class students typically derive from their families, and without such a program, few minorities would qualify for admission to the University. A major purpose of the program, he asserted, was to promote diversity among the student body and the profession and to increase the number of doctors practicing in the minority community, where the need is great.
The trial court found that although the special admission program purports to be open to “educationally or economically disadvantaged” students, and although in 1973 and 1974 some applications for the program were received from members of the white race, only minority students had been admitted under the program since its inception, and members of the white race were barred from participation. The court concluded that the program constitutes invidious discrimination in favor of minority races and against Bakke and others whose applications were evaluated under the regular admission procedure, in violation of their rights under the
The Appeal of the University
The validity of preferential admission to professional school for minorities was before the United States Supreme Court in DeFunis v. Odegaard, 416 U.S. 312 [40 L. Ed. 2d 164, 94 S. Ct. 1704], which involved a program at the University of Washington law school. However, after granting certiorari (414 U.S. 1038 [38 L. Ed. 2d 329, 94 S. Ct. 538]) the high court determined, over the dissent of four justices, that the case was moot, and vacated the judgment of the
The question before us has generated extraordinary interest in academia, as well as a proliferation of debate among legal writers and commentators. (See, for a mere literary sampling, Redish, Preferential Law School Admissions and the Equal Protection Clause: An Analysis of the Competing Arguments (1974) 22 U.C.L.A. L.Rev. 343; De Funis Symposium (1975) 75 Colum. L.Rev. 483; Sandalow, Racial Preferences: The Judicial Role (1975) 42 U.Chi. L.Rev. 653; Symposium, De Funis: The Road Not Taken (1974) 60 Va.L.Rev. 917; Ely, The Constitutionality of Reverse Racial Discrimination (1974) 41 U.Chi. L.Rev. 723; O‘Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education (1971) 80 Yale L.J. 699; Graglia, Special Admission of the “Culturally Deprived” to Law School (1970) 119 U.Pa. L.Rev. 351; Ginger (edit.), De Funis versus Odegaard and the University of Washington (1974); Cohen, The De Funis Case: Race and The Constitution, (Feb. 8, 1975) The Nation 135; O‘Neil, Discriminating Against Discrimination (1975).) No fewer than 26 amici curiae briefs were filed in the United States Supreme Court in De Funis. Indeed, Justice Brennan, dissenting in De Funis from the determination of mootness, remarked that “[F]ew constitutional questions in recent history have stirred as much debate . . .” (416 U.S. at p. 350 [40 L. Ed. 2d at p. 188].)
We also observe preliminarily that although it is clear that the special admission program classifies applicants by race, this fact alone does not render it unconstitutional. Classification by race has been upheld in a number of cases in which the purpose of the classification was to benefit rather than to disable minority groups.
Thus, such classifications have been approved to achieve integration in the public schools (Swann v. Board of Education (1971) 402 U.S. 1 [28 L. Ed. 2d 554, 91 S. Ct. 1267]; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal. 3d 937, 950-951 [92 Cal. Rptr. 309, 479 P. 2d 669]), to require a school system to provide instruction in English to students of Chinese ancestry (Lau v. Nichols (1974) 414 U.S. 563 [39 L. Ed. 2d 1, 94 S. Ct. 786]),10 and to uphold the right of certain non-English speaking persons to vote (Katzenbach v. Morgan (1966) 384 U.S. 641 [16 L. Ed. 2d 828, 86 S. Ct. 1717]; Castro v. State of California (1970) 2 Cal. 3d 223 [85 Cal. Rptr. 20, 466 P. 2d 244]). These cases differ from the special admission program in at least one critical respect, however. In none of them did the extension of a right or benefit to a minority have the effect of depriving persons who were not members of a minority group of benefits which they would otherwise have enjoyed.
The University suggests that this distinction is not apposite with respect to the school integration decisions because the effort to integrate schools discommodates nonminorities by requiring some to attend schools in neighborhoods other than their own. We cannot accept this as a valid analogy. Whatever the inconveniences and whatever the techniques employed to achieve integration, no child is totally deprived of an education because he cannot attend a neighborhood school, and all students, whether or not they are members of a minority race, are subject
It is plain that the special admission program denies admission to some white applicants solely because of their race.11 Of the 100 admission opportunities available in each year‘s class, 16 are set aside for disadvantaged minorities, and the committee admits applicants who fall into this category until these 16 places are filled. Since the pool of applicants available in any year is limited, it is obvious that this procedure may result in acceptance of minority students whose qualifications for medical study, under the standards adopted by the University itself, are inferior to those of some white applicants who are rejected.
This situation occurred in 1973 and 1974. The combined numerical rating assigned by the committee to each applicant who is granted an interview includes not only an evaluation of his academic scores but an assessment of all factors which the committee considers relevant to the successful pursuit of medical studies, such as an applicant‘s motives, character, and academic grades. This combined rating, with a few special exceptions, serves as the “benchmark” for admission.
The dissent charges that the combined numerical rating of an applicant does not include all his qualifications because it does not contain one factor favorable to disadvantaged minority applicants, i.e., their race or ethnic background. This suggestion is based upon the theory of the dissent that minority status in and of itself constitutes a substantive qualification for medical study and that, therefore, the fact that the combined numerical rating of a minority applicant accepted for admission was lower than the rating of a white rejected for admission does not
The rating of some students admitted under the special program in 1973 and 1974 was as much as 30 points below that assigned to Bakke and other nonminority applicants denied admission. Furthermore, white applicants in the general admission program with grade point averages below 2.5 were, for that reason alone, summarily denied admission, whereas some minority students in the special program were admitted with grade point averages considerably below 2.5. In our view, the conclusion is inescapable that at least some applicants were denied admission to the medical school solely because they were not members of a minority race.
The fact that all the minority students admitted under the special program may have been qualified to study medicine does not significantly affect our analysis of the issues. In the first place, as the University freely admits, Bakke was also qualified for admission, as were hundreds, if not thousands of others who were also rejected. In this context the only relevant inquiry is whether one applicant was more qualified than another. Secondly, Bakke alleged that he and other nonminority applicants were better qualified for admission than the minority students accepted under the special admission program, and the question we must decide is whether the rejection of better qualified applicants on racial grounds is constitutional.
The issue to be determined thus narrows to whether a racial classification which is intended to assist minorities, but which also has the effect of depriving those who are not so classified of benefits they would enjoy but for their race, violates the constitutional rights of the majority.12
The general rule is that classifications made by government regulations are valid “if any state of facts reasonably may be conceived” in their justification. (McGowan v. Maryland (1961) 366 U.S. 420, 426 [6 L. Ed. 2d 393, 399, 81 S. Ct. 1101].) This yardstick, generally called the “rational basis” test, is employed in a variety of contexts to determine the validity of government action (e.g., Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 8 [39 L. Ed. 2d 797, 803-804, 94 S. Ct. 1536]; Dandridge v. Williams (1970) 397 U.S. 471, 485 [25 L. Ed. 2d 491, 501-502, 90 S. Ct. 1153]) and its use signifies that a reviewing court will strain to find any legitimate purpose in order to uphold the propriety of the state‘s conduct.
But in some circumstances a more stringent standard is imposed. Classification by race is subject to strict scrutiny, at least where the classification results in detriment to a person because of his race.13 In the case of such a racial classification, not only must the purpose of the classification serve a “compelling state interest,” but it must be demonstrated by rigid scrutiny that there are no reasonable ways to achieve the state‘s goals by means which impose a lesser limitation on the rights of the group disadvantaged by the classification. The burden in both respects is upon the government. (E.g., Dunn v. Blumstein (1972) 405 U.S. 330, 342-343 [31 L. Ed. 2d 274, 284, 92 S. Ct. 995]; Loving v. Virginia (1967) 388 U.S. 1, 11 [18 L. Ed. 2d 1010, 1017, 87 S. Ct. 1817]; McLaughlin v. Florida (1964) 379 U.S. 184, 192-193 [13 L. Ed. 2d 222, 228-229, 85 S. Ct. 283].) It has been more than three decades since any decision of the United States Supreme Court upheld a classification which resulted in detriment solely on the basis of race: Korematsu v. United States (1944) 323 U.S. 214 [89 L. Ed. 194, 65 S. Ct. 193], and Hirabayashi v. United States (1943) 320 U.S. 81 [87 L. Ed. 1774, 63 S. Ct. 1375], both of which were war-inspired cases that have been severely criticized subsequently.14
We cannot agree with the proposition that deprivation based upon race is subject to a less demanding standard of review under the
That whites suffer a grievous disadvantage by reason of their exclusion from the University on racial grounds is abundantly clear. The fact that they are not also invidiously discriminated against in the sense that a stigma is cast upon them because of their race, as is often the
Regardless of its historical origin, the equal protection clause by its literal terms applies to “any person,”17 and its lofty purpose, to secure equality of treatment to all, is incompatible with the premise that some races may be afforded a higher degree of protection against unequal treatment than others.
Although there are no decisions of the United States Supreme Court directly in point, recent decisions of the high court demonstrate a marked reluctance to apply different standards to determine the rights of minorities and members of the majority. Thus, in McDonald v. Santa Fe Trail Transportation Co. (1976) 427 U.S. 273 [49 L. Ed. 2d 493, 96 S. Ct. 2574], the court held that title VII and section 1981 of title 42 of the United States States Code prohibit discrimination against all races on the same terms. Significantly, the court relied upon the broad language of these statutes, which protect “any individual” and “all persons” from discrimination. Indeed, in spite of the fact that section 1981 states that “all persons . . . shall have the same right in every State . . . to make and enforce contracts . . . as is enjoyed by white citizens” (italics added), and that the “immediate impetus” for the statute uрon which section 1981 was based “was the necessity for further relief of the constitutionally emancipated former Negro slaves” the court found that the history of the measure justified the conclusion that it was intended to apply on equal terms to all races.18
The University seeks to justify the program on the ground that the admission of minority students is necessary in order to integrate the medical school and the profession.19 The presence of a substantial number of minority students will not only provide diversity in the student body, it is said, but will influence the students and the remainder of the profession so that they will become aware of the medical needs of the minority community and be encouraged to assist in meeting those demands.20 Minority doctors will, moreover, provide role models for younger persons in the minority community, demonstrating to them that they can overcome the residual handicaps inherent from past discrimination.
Furthermore, the special admission program will assertedly increase the number of doctors willing to serve the minority community, which is desperately short of physicians. While the University concedes it cannot guarantee that all the applicants admitted under the special program will ultimately practice as doctors in disadvantaged communities, they have expressed an interest in serving those communities and there is a likelihood that many of them will thus fashion their careers.
We reject the University‘s assertion that the special admission program may be justified as compelling on the ground that minorities would have more rapport with doctors of their own race and that black doctors would have a greater interest in treating diseases prevalent among blacks. The record contains no evidence to justify the parochialism implicit in the latter assertion; and as to the former, we cite as eloquent refutation to racial exclusivity the comment of Justice Douglas in his dissenting opinion in De Funis: “The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans . . . .” (416 U.S. at p. 342 [40 L. Ed. 2d at p. 183].)
We may assume arguendo that the remaining objectives which the University seeks to achieve by the special admission program meet the exacting standards required tо uphold the validity of a racial classification insofar as they establish a compelling governmental interest. Nevertheless, we are not convinced that the University has met its burden of demonstrating that the basic goals of the program cannot be substantially achieved by means less detrimental to the rights of the majority.
The two major aims of the University are to integrate the student body and to improve medical care for minorities. In our view, the University has not established that a program which discriminates against white applicants because of their race is necessary to achieve either of these goals.
It is the University‘s claim that if special consideration is not afforded to disadvantaged minority applicants, almost none of them would gain admission because, no matter how large the pool of applicants, the grades and test scores of most minority applicants are lower than those of white applicants. In support of this assertion, the University declared that in the two years before the special admission program was
We observe and emphasize in this connection that the University is not required to choose between a racially neutral admission standard applied strictly according to grade point averages and test scores, and a standard which accords preference to minorities because of their race.
While minority applicants may have lower grade point averages and test scores than others, we are aware of no rule of law which requires the University to afford determinative weight in admissions to these quantitative factors. In practice, colleges and universities generally consider matters other than strict numerical ranking in admission decisions. (O‘Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education (1971) 80 Yale L.J. 699, 701-705.) The University is entitled to consider, as it does with respect to applicants in the special program, that low grades and test scores may not accurately reflect the abilities of some disadvantaged students; and it may reasonably conclude that although their academic scores are lower, their potential for success in the school and the profession is equal to or greater than that of an applicant with higher grades who has not been similarly handicapped.22
In addition, the University may properly as it in fact does, consider other factors in evaluating an applicant, such as the personal interview,
In addition to flexible admission standards, the University might increase minority enrollment by instituting aggressive programs to identify, recruit, and provide remedial schooling for disadvantaged students of all races who are interested in pursuing a medical career and have an evident talent for doing so.
Another ameliorative measure which may be considered is to increase the number of places available in the medical schools, either by allowing additional students to enroll in existing schools or by expanding the schools. In 1974, the University received almost 40 applications for each place available, and the entering class in all the medical schools in the state in the last academic year totalled only 1,094 students. (Assn. of American Medical Colleges, Medical School Admission Requirements (1976) table 2-B, pp. 11-12.)
None of the foregoing measures can be related to race, but they will provide for consideration and assistance to individual applicants who have suffered previous disabilities, regardless of their surname or color. So far as the record discloses, the University has not considered the adoption of these or other nonracial alternatives to the special admission program.
Whether these measures, taken together, will result in the enrollment of precisely the same number of minority students as under the current
We question, however, whether the University has established that the special admission program is the least intrusive or even the most effective means to achieve this goal. The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an “interest” in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority communities than the average white doctor. (See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.
Moreover, while it may be true that the influence exerted by minorities upon the student body and the profession will persuade some
The University cites certain cases in support of its position. A substantial number of decisions, most of them determined under title VII of the
The authorities are not persuasive. In all these cases the court found that the defendant had practiced discrimination in the past and that the preferential treatment of minorities was necessary to grant them the opportunity for equality which would have been theirs but for the past discriminatory conduct. Absent a finding of pаst discrimination—and thus the need for remedial measures to compensate minorities for the prior discriminatory practices of the employer—the federal courts, with one exception, have held that the preferential treatment of minorities in employment is invalid on the ground that it deprives a member of the
It is important to observe that all of these cases, with the exception of Weber, hold that it is unconstitutional reverse discrimination to grant a
There is no evidence in the record to indicate that the University has discriminated against minority applicants in the past. Nevertheless amici curiae ask that we find, by analogy to the employment discrimination cases, that the University‘s reliance on grade point averages and the Medical College Admission Test in evaluating applicants amounted to discrimination in fact against minorities. Amici claim that the application of these quantitative measures by the University had resulted in the exclusion of a disproportionate number of minority applicants, that grades and test scores are not significantly related to a student‘s performance in medical school or in the profession, and that the test is culturally biased. In the recent case of Washington v. Davis, supra, 426 U.S. 229, the United States Supreme Court has made it clear that the standard for adjudicating claims of racial discrimination on constitutional grounds is not the same as the standard applicable to cases decided under title VII, and that absent a racially discriminatory purpose, a test is not invalid solely because it may have a racially disproportionate impact. Thus, the fact that minorities are underrepresented at the University would not suffice to support a determination that the University has discriminated against minorities in the past. (See also Tyler v. Vickery (5th Cir. 1975) 517 F.2d 1089, 1095.) In any event, we are not called upon to decide the issue raised by amici in the present case. Neither party contended in the trial court that the University had practiced discrimina
The University relies upon Alevy v. Downstate Medical Center, supra, 384 N.Y.Supp.2d 82. There, as here, a white medical student alleged that he had been discriminated against in admission to a publicly funded medical school because of preferences accorded to black and Puerto Rican applicants in the admission program. Although the court found that the school had discriminated in favor of the minority applicants, it did not decide whether the preference was constitutional. Rather, it held that the petitioner did not demonstrate his right to relief because he had failed to show that he would have been admitted if no preference had been extended to minority applicants. The opinion contains dictum which is in conflict with some of our reasoning, but the court‘s holding is not at variance with our determination that the special admission program is invalid.30
On the one hand, it is urged that preferential treatment for minorities is essential in order to afford them an opportunity to enjoy the benefits which would have been theirs but for more than a century of exploitation and discrimination by the prevailing majority. Although legal impediments to equality have been removed by the judiciary and by the Congress, goes the argument, minorities still labor under severe handicaps. To achieve the American goal of true equality of opportunity among all races, more is required than merely removing the shackles of past formal restrictions; in the absence of special assistance, minorities will become a “self-perpetuating group at the bottom level of our society who have lost the ability and the hope of moving up.” (Kaplan, Equal in an Unequal World: Equality for the Negro—The Problem of Special Treatment (1966) 61 Nw.U.L. Rev. 363, 374.) Preferential admissions will be necessary only until minorities can compete on an equal basis, and will benefit not only the applicant who is specially treated, but also the minority community in general.31
The persuasiveness of these arguments cannot be denied, for the ends sought by such programs are clearly just if the benefit to minorities is viewed in isolation. But there are more forceful policy reasons against preferential admissions based on race. The divisive effect of such
While a program can be damned by semantics, it is difficult to avoid considering the University scheme as a form of an education quota system, benevolent in concept perhaps, but a revival of quotas nevertheless. No college admission policy in history has been so thoroughly discredited in contemporary times as the use of racial percentages. Originated as a means of exclusion of racial and religious minorities from higher education, a quota becomes no less offensive when it serves to exclude a racial majority. “No form of discrimination should be opposed more vigorously than the quota system.” (McWilliams, A Mask For Privilege (1948) p. 238.)33
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis
Bakke‘s Appeal
We agree. Under the general rule, the burden of proof would remain with plaintiff Bakke throughout the trial on the issue of his admission. (
By analogy to these decisions, we hold that the trial court should have ruled that since Bakke successfully demonstrated that the University had unconstitutionally discriminated against him, the burden of proof shifted to the University to establish that he would not have been admitted to
The judgment is affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. Bakke shall recover his costs on these appeals.
Wright, C. J., McComb, J., Sullivan, J., Clark, J., and Richardson, J., concurred.
TOBRINER, J., Dissenting.—In 1969 the medical school of the University of California at Davis confronted the reality that reliance upon its traditional admission criteria had led it to become a nearly all-white, segregated institution. In response, the medical school voluntarily adopted the “special admission” program at issue in this case to overcome the exclusionary effect of its past policies and to achieve an integrated student body composed of qualified students of all races and ethnic groups.
The Davis medical school, of course, was not alone in perceiving and acting to ameliorate the grave problems resulting from a largely segregated medical school and a largely segregated medical profession. In the late 1960‘s and early 1970‘s over 100 medical schools throughout the country, including almost all of the most highly regarded medical institutions, instituted similar special admission programs aimed at increasing the enrollment of minority medical students and producing a more integrated medical profession. Moreover, in the past decade scores
By today‘s decision, the majority deliver a severe, hopefully not fatal, blow to these voluntary efforts to integrate our society‘s institutions and to ameliorate the continuing effects of past discrimination. Contrary to the majority‘s assertion, time-honored constitutional principles and precedent by no means establish that the special admission program at issue in this case violates the Fourteenth Amendment. Indeed, as I explain, past decisions of both the United States Supreme Court and this court clearly demonstrate the constitutional propriety of the admission program instituted by the medical school to integrate its student body.
In reaching the conclusion that the special admission program at issue here is unconstitutional, the majority proceed from two fundamentally flawed premises. First, the majority erroneously equate the racial classifications utilized by the medical school to achieve an integrated student body with the traditional “invidious” racial classifications embodied in laws or state policies which discriminated against blacks and other racial or ethnic minorities, and hold that the use of racial classifications even to promote integration is presumptively unconstitutional and “suspect.” The governing authorities, however, lend no support to the conclusion that the use of racial classifications to ameliorate segregated conditions is presumptively unconstitutional. On the contrary, numerous decisions recognize that as a practical matter racial classifications frequently must be employed if the effects of past discrimination and exclusion are to be overcome and if integration of currently segregated institutions is to be achieved; these cases establish that the Constitution does not forbid such use of remedial racial classifications. By failing to distinguish between invidious racial classifications and remedial or “benign” racial classifications, the majority utilize the wrong constitutional standard in evaluating the validity of the Davis special admission program. This fundamental error inevitably infects and invalidates the majority‘s ultimate constitutional conclusion.
Second, the majority incorrectly assert that the minority students accepted under the special admission program are “less qualified“—under the medical school‘s own standards—than nonminority applicants rejected by the medical school. (See pp. 38, 47, ante.) This is simply not
In implementing the special admission program at issue here, the medical school determined that in light of the contemporary needs of the medical profession and of society generally, the attainment of a racially integrated, diverse medical school student body, made up of qualified students of all races, is more important than the perpetuation of a segregated medical school composed of students with the highest objective academic credentials. To date, courts have always respected a college or professional school‘s determination that the educational benefits of a diverse student body justify a departure from adherence to strict objective academic credentials for a particular group of applicants; such “preferential” policies have perhaps most commonly been adopted to promote geographic diversity, but similar admission preferences have regularly been employed to serve less compelling interests, for example to give preference to an applicant‘s athletic ability or to his relationship to an alumnus or institutional benefactor.
Unless it can be said that the promotion of integration is a constitutionally illegitimate purpose—a proposition which the majority obviously do not intend to embrace—I cannot understand how the admission policy at issue in this case can properly be found less permissible than these other long-accepted admission practices. There is, indeed, a very sad irony to the fact that the first admission program aimed at promoting diversity ever to be struck down under the Fourteenth Amendment is the program most consonant with the underlying purposes of the Fourteenth Amendment.
There is no denying that racial classifications have played an odious role throughout our nation‘s history. In the course of the past 200 years, racial classifications have been utilized to subjugate racial and ethnic minorities to a separate and inferior existence in American society. At first, courts struck down only the most blatant use of racial classifications against minorities, invalidating laws which directly denied blacks or similar minorities basic legal rights and privileges enjoyed by the majority of citizens. (See, e.g., Strauder v. West Virginia (1880) 100 U.S. 303 [25 L.Ed. 664]; Nixon v. Herndon (1927) 273 U.S. 536 [71 L.Ed. 759, 47 S.Ct. 446]; Yick Wo v. Hopkins (1886) 118 U.S. 356 [30 L.Ed. 220, 6 S.Ct. 1064].)
Beginning with Brown v. Board of Education (1954) 347 U.S. 483 [98 L.Ed. 873, 74 S.Ct. 686, 38 A.L.R.2d 1180], the courts acknowledged the inherent inequalities of the “separate but equal” doctrine and struck down the racial classifications embodied in segregation laws, laws that, by officially excluding minorities from the principal governmental and social institutions utilized by the majority of Americans, stigmatized members of minority groups and consigned them to inherently inferior treatment. (See, e.g., Gayle v. Browder (1956) 352 U.S. 903 [1 L.Ed.2d 114, 77 S.Ct. 145]; Holmes v. City of Atlanta (1955) 350 U.S. 879 [100 L.Ed. 776, 76 S.Ct. 141].) More recently, courts have perceived the invidiousness of a somewhat more subtle use of racial classifications, and have invalidated laws embodying such classifications which coerced, facilitated or encouragеd the private discrimination against minorities or the preservation of a segregated society. (See, e.g., Anderson v. Martin (1964) 375 U.S. 399 [11 L.Ed.2d 430, 84 S.Ct. 454]; McLaughlin v. Florida (1964) 379 U.S. 184 [13 L.Ed.2d 222, 85 S.Ct. 283]; Loving v. Virginia (1967) 388 U.S. 1 [18 L.Ed.2d 1010, 87 S.Ct. 1817]; Hunter v. Erickson (1969) 393 U.S. 385, 391 [21 L.Ed.2d 616, 89 S.Ct. 557]; cf. Reitman v. Mulkey (1967) 387 U.S. 369 [18 L.Ed.2d 830, 87 S.Ct. 1627].)
In all of these cases the racial classifications at issue were utilized, explicitly or covertly, to stigmatize, exclude or accord inferior treatment to minorities. In this context, courts most properly held, time and again, that such “racial classifications” are constitutionally “suspect” and presumptively unconstitutional. Because the central purpose of the Fourteenth Amendment was to protect the black minority from the
The racial classifications at issue in this case, however, are worlds apart from the invidious racial classifications deemed constitutionally suspect in prior cases. The racial classifications embodied in the special admission program are not intended to, nor do they in fact, exclude any particular racial group from participation in the medical school; on the contrary, the program is aimed at assuring that qualified applicants of all racial groups are actually represented in the institution.1 Moreover, the racial classifications do not stigmatize any racial group as an “inferior” race, but instead give realistic recognition to the continuing effects resulting from several centuries of discriminatory treatment.2 Finally, the racial classifications are not the instruments through which a majority‘s racial prejudice has imposed inferior treatment upon an impotent minority, but rather are remedial measures voluntarily implemented to give all students the distinct educational benefits flowing from an integrated education.
In fact, the existing authorities dictate just the opposite result. In recent years numerous decisions of this court, the United States Supreme Court and the lower federal courts have firmly established that the use of racial classifications to promote integration or to remedy the continuing effects of past discrimination is neither presumptively unconstitutional nor suspect, but rather is fully consistent with the precepts of the equal protection clause.
The question of the constitutional legitimacy of utilizing racial classifications to achieve integration first arose in the context of efforts to desegregate public primary and secondary schools. In San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948-951 [92 Cal.Rptr. 309, 479 P.2d 669], our court spoke directly to this issue, explicitly rejecting the contention that any use of racial classification in pupil assignments was unconstitutional, even for the purpose of integrating schools. We declared: “[I]n a society free of the perdition of past discrimination, the courts might well reject all attempts at racial classification. We seek, however, to provide for practical remedies for present discrimination, and to eradicate the effects of prior segregation; ‘at this point, and perhaps for a long time, true nondiscrimination may be attained, paradoxically, only by taking color into consideration.’ [Citation.] We conclude that the racial classification involved in the effective integration of public schools does not deny, but secures, the equal protection of the laws.” (Italics added.) (3 Cal.3d at p. 951.)
Moreover, dispelling any notion that remedial racial classifications are only permissible to remedy an unconstitutional condition, the Swann court expressly approved a school board‘s voluntary use of racial classifications to promote integration and to achieve racially balanced schools even in the absence of a constitutional obligation to desegregate. The court declared: “School authorities are traditionally charged with broad powers to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.” (Italics added.) (402 U.S. at p. 16 [28 L.Ed.2d at pp. 566-567].)4
This passage, of course, has a most dirеct application to the instant case. Here, the educational authorities have concluded that in order to prepare medical students to live and practice in a pluralistic society, the
It is not only in the school desegregation realm, moreover, that courts have recognized the necessity and propriety of utilizing racial classifications to promote integration and to overcome the continuing effects of past discriminatory treatment. In the employment area, for example, literally dozens of federal “Title VII” (
Finally, one of the United States Supreme Court‘s most recent employment decisions, Washington v. Davis (1976) 426 U.S. 229 [48 L.Ed.2d 597, 96 S.Ct. 2040]—decided just this past June—provides additional evidence that the majority is incorrect in asserting that remedial racial classifications are constitutionally suspect. Under the majority‘s view, any use of racial classifications is presumptively unconstitutional; thus, the majority suggest that the medical school‘s recruiting efforts, as well as its admission decisions, must be conducted strictly on a
The use of benign racial classifications, furthermore, has been upheld in fields other than school desegregation and employment. As the First Circuit recently noted: “Intentional official recognition of race has been found neсessary to achieve fair and equal opportunity in the selection of grand juries, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); tenants for public housing, Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973) . . . Gautreaux v. Chicago Housing Authority, 304 F.Supp. 736 (N.D.Ill. 1969); [and] school administration, Porcelli v. Titus (3d Cir. 1970) 431 F.2d 1254.” (Associated Gen. Contractors of Mass., Inc. v. Altshuler, supra, 490 F.2d 9, 16.) Indeed, reviewing the host of recent
This understanding has been lost on the majority. Although acknowledging the existence of at least some of the numerous decisions upholding benign racial classifications in diverse contexts, the majority claim that all of the precedents are distinguishable from the instant case either because the past racial classifications did not impose any “detriment” on nonminorities, or because such racial classifications were adopted to remedy specific effects of racial discrimination practiced by the defendant. Neither of these purported distinctions will withstand analysis.
To begin with, it is simply not true that the remedial racial classifications approved by the courts in recent years have not had the effect of placing nonminorities at some disadvantage vis-a-vis benefited minorities. The employment decisions noted above provide perhaps the clearest refutation of the majority‘s position. Pursuant to both Title VII and Executive Order 11246, employers have been required to assure that some percentage of persons hired in the future are from minority groups; as a consequence, some nonminority applicants who might otherwise have been hired may not obtain employment because the employer is required to hire a number of qualified minority applicants. Although, in the majority‘s terminology, such remedial programs can thus result in depriving nonminority applicants of a “benefit” that they would have enjoyed “but for their race,” federal courts have regularly upheld the constitutionality of such remedial racial classifications and have not equated such measures with invidious racial classifications. (See fns. 5, 6, ante.) The special admission program at issue here, of course, is directly analogous to such affirmative action programs.
Moreover, the employment cases are by no means the only instance in which judicially sanctioned benign racial classifications have “deprived” nonminorities of a benefit on the basis of their race. Although the majority maintain that the benign racial classifications employed in school desegregation do not have such an effect, that assertion clearly fails. In the first place, no one can realistically assert that white-Anglo students who have been transferred from schools with better facilities and more experienced teachers to presently “unequal” schools as part of
The fallacy of the majority‘s analysis becomes crystal clear upon merely a brief examination of the actual mechanics of the typical desegregation process. As the United States Supreme Court observed in Swann, “[a]n optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan.” (402 U.S. at pp. 26-27 [28 L.Ed.2d at p. 572].) Under such a transfer provision, minority students assigned to a predominantly minority school are afforded the opportunity to transfer to a better predominantly white-Anglo school in the district; a white-Anglo student who is initially assigned to the same predominantly minority school, however, is denied that transfer option “on the basis of his race.” The rationale of this racial classification, of course, is clear and quite legitimate; transfers that will improve school integration are permissible, while those that will lead to greater segregation are not. Nonetheless, under the constitutional approach applied by the majority in the instant case, such a normal tool of desegregation would apparently be unconstitutional. Given this court‘s very recent unanimous approval of just such a plan (Crawford v. Board of Education (1976) 17 Cal.3d 280, 308 [130 Cal.Rptr. 724, 551 P.2d 28]), the flaw in the majority‘s constitutional approach becomes patent.
Another example may further illustrate the similarity of the benign racial classifications utilized in the typical school desegregation process and the racial classifications at issue in this case. One increasingly common tool in the desegregation process is the establishment of a “magnet” school at the site of a predominantly minority school in an attempt to encourage nonminority students voluntarily to transfer to the school. Such “magnet” schools are made attractive by offering curriculum choices or special equipment not available in other schools in the district.
In order for the “magnet” school concept to achieve integration, however, the establishment of the special offerings must invariably be accompanied by some racial guidelines or “quotas” for student enrollment. Thus, for example, if the “magnet” school offers an advanced science or an advanced music curriculum, admission is not provided
The simple reality revealed by these examples is that in many circumstances any remedy for the inequities flowing from past discrimination will inevitably result in some detriment to nonminorities. Whenever there is a limited pool of resources from which minorities have been disproportionately excluded, equalization of opportunity can only be accomplished by a reallocation of such resources; those who have previously enjoyed a disproportionate advantage must give up some of that advantage if those who have historically had less are to be afforded an equitable share. This reality, however, has not led courts to invalidate the remedial use of benign classifications. (See also Kahn v. Shevin (1974) 416 U.S. 351 [40 L.Ed.2d 189, 94 S.Ct. 1734]; Morton v. Mancari, supra, 417 U.S. 535.)
The majority are similarly in error in claiming that the instant case can be distinguished from past benign racial classification cases on the ground that prior cases only permit the use of such classifications as a remedy for racial discrimination undertaken in the past.
In the first place, the medical school‘s special admission program is, in a very real and important sense, intended to overcome the continuing effect of past discrimination in this country. As the United States Supreme Court has acknowledged on numerous occasions, the effect of our nation‘s sad legacy of racial discrimination runs deep and wide, and is in no sense limited to those schools, or to those states, which practiced de jure segregation. (See, e.g., Oregon v. Mitchell (1970) 400 U.S. 112, 284 [27 L.Ed.2d 272, 373, 91 S.Ct. 260].) Further, Supreme Court decisions specifically recognize that discrimination endured by minorities in primary and secondary education will frequently result in later disadvantage to such minorities if educationally based tests are used as the primary criterion for conditioning access to a benefit. (See South Carolina v. Katzenbach (1966) 383 U.S. 301, 327-334 [15 L.Ed.2d 769, 786-790, 86 S.Ct. 803]; Gaston County v. United States (1969) 395 U.S. 285 [23 L.Ed.2d 309, 89 S.Ct. 1720]; Griggs v. Duke Power Co. (1971) 401 U.S. 424, 430 [28 L.Ed.2d 158, 163-164, 91 S.Ct. 849].) The medical school took this continuing discriminatory impact into account in concluding that the continuation of its traditional admission policies was unfair to disadvantaged minorities and in deciding to implement the special admission program.
The majority appear to suggest, however, that the medical school was not free to implement benign racial classifications because there is no evidence that the medical school had itself engaged in racial discrimination in the past. Initially, such a requirement is, on its face, completely illogical. The fact that a governmental institution has not itself engaged in discrimination affords no reason for precluding such an institution from taking into account, through remedial classifications, the present effects of past discrimination by other bodies. The rule proffered by the majority, moreover, would “penalize” precisely the wrong institutions. It must be remembered that the medical school here has voluntarily decided that it is in its educational interest to maintain an integrated medical school; the effect of the majority‘s suggestion would be to deny Davis medical school the right to implement such a judgment, and to grant that opportunity only to institutions that have practiced racial discrimination in the past. No one can seriously maintain that such a result is dictated by the Constitution.
The confusion underlying the majority‘s approach may be traced to statements in several benign racial classification cases indicating that an employer or educational institution may not be judicially compelled to adopt remedial racial classifications unless it has engaged in racial discrimination in the past. (See Swann v. Board of Education, supra, 402 U.S. 1, 16 [28 L.Ed.2d 554, 566-567].) As the
Moreover, in the “Executive Order” cases upholding federally compelled “affirmative action” employment programs for government contractors, courts have sanctioned the coercive implementation of benign racial classification schemes in the absence of any showing that a particular employer had engaged in racial discrimination in the past. (See Contractors Association of Eastern Pa. v. Secretary of Labor, supra, 442 F.2d 159, 176 and other cases cited at fn. 6, ante.) In light of these numerous authorities, the majority is simply incorrect in asserting that “[a]bsent a finding of past discrimination, . . . the federal courts, with one exception, have held that the preferential treatment of minorities in employment is invalid on the ground that it deprives a member of the majority of a benefit because of his race.” (See p. 57, ante.)9
• In sum, the governing authorities draw a clear distinction between invidious racial classifications and remedial, benign racial classifications. The majority eschew such a distinction, suggesting that there is no principled basis for distinguishing between laws which utilize racial classifications to stigmatize or accord inferior treatment to minorities and laws which utilize such classifications to overcome the effects of past discrimination or to promote integration but which have the incidental effect of disadvantaging those of the majority race. There are, however, several principled grounds for drawing just the distinction that the cases have in fact drawn.
First, such a distinction is justified by the history and central purpose of the
Second, in addition to the history and purpose of the
Heightened judicial scrutiny is accordingly appropriate when reviewing laws embodying invidious racial classifications, because the political process affords an inadequate check on discrimination against “discrete and insular minorities.” (See, e.g., Graham v. Richardson, supra, 403 U.S. 365, 372 [29 L.Ed.2d 534, 541-542]; Frontiero v. Richardson (1973) 411 U.S. 677, 685-686 [36 L.Ed.2d 583, 590-591, 93 S.Ct. 1764]; Sail‘er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 18-20 [95 Cal.Rptr. 329, 485 P.2d 529, 46 A.L.R.3d 351]; cf. Massachusetts Board of Retirement v. Murgia (1976) 427 U.S. 307 [49 L.Ed.2d 520, 96 S.Ct. 2562]; San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 28 [36 L.Ed.2d 16, 39-40, 93 S.Ct. 1278].) By the same token, however, such stringent judicial review is not appro
Concluding this discussion, we point out that the majority‘s treatment of the medical school‘s special admission program as constitutionally “suspect” is not supported by (1) existing case law, (2) the history and purpose of the
2. The racial classifications embodied in the special admission program relate directly, and in a reasonable fashion, to the compelling state interest in promoting integration and are thus constitutional.
As discussed above, the remedial racial classifications at issue here cannot properly be viewed as presumptively unconstitutional and thus should not be tested against the standard applied to invidious racial classifications, the exacting, “seemingly insurmountable” strict scrutiny standard. (Dunn v. Blumstein (1972) 405 U.S. 330, 363 [31 L.Ed.2d 274, 296, 92 S.Ct. 995] (Burger, C. J. dissenting).) Although the strict scrutiny standard is not applicable, the appropriate constitutional standard to be employed in testing the constitutionality of benign racial classifications has not been clearly set forth. A number of relevant decisions of the United States Supreme Court suggest that the traditional “rational basis” equal protection test—which affords governmental bodies broad discretion in fashioning remedial policies—may well be the appropriate standard. (See Katzenbach v. Morgan, supra, 384 U.S. 641, 651, 657-658 [16 L.Ed.2d 828, 835-836, 839-840]; Swann v. Board of Education, supra, 402 U.S. 1, 16 [28 L.Ed.2d 554, 566-567]; Kahn v. Shevin, supra, 416 U.S. 351, 355-356 [40 L.Ed.2d 189, 193]; Morton v. Mancari, supra, 417 U.S. 535, 554-555 [41 L.Ed.2d 290, 302-303].) Quite recently, however, several state and lower federal courts have suggested that in light of the potential “untoward consequences” of racial classifications of any kind—benign as well as invidious—a somewhat more rigorous judicial scrutiny than is traditionally applied under the “rational basis” test should be employed. (See Alevy v. Downstate Medical Center (1976) 39 N.Y.2d 326 [384 N.Y.S.2d 82, 88-91, 348 N.E.2d 537, 543-546]; Associated Gen. Contractors of Mass., Inc. v. Altshuler, supra, 490 F.2d 9, 17.)
There are sound reasons for the judiciary to take a somewhat cautious approach in reviewing ostensibly benign racial classifications. In light of the historical misuse of racial classifications in this country, it is important that courts carefully and realistically assess the purpose and effect of any racial classification to assure thаt the classification is actually devised for legitimate remedial purposes rather than as a covert method for imposing invidious racial discrimination. In undertaking such a realistic review, however, a court must also be mindful that remedies for the continuing effects of past discrimination have proven distressingly elusive, and that it is therefore important that entities attempting in good faith to promote integration be given reasonable leeway in experimenting with various methods to achieve this compelling societal objective. Accordingly, once a court is convinced that differential racial treatment has been adopted in a good faith attempt to promote integration, it should uphold a benign racial classification so long as it is directly and reasonably related to the attainment of integration. Under this standard, the racial classifications at issue here are clearly constitutional.
The background of the Davis special admission program demonstrates that its racial classifications were clearly devised as a realistic attempt to promote integration. Prior to the implementation of the special admission program, the medical school had pursued an admission process which relied heavily on an applicant‘s scores on the standardized Medical College Aptitude Test (MCAT) and on an applicant‘s undergraduate grade point average. The use of such traditional admission criteria resulted in the rejection of almost all qualified minority applicants. Thus, although the medical school regularly received applications from a vast number of qualified applicants of all races and ethnic backgrounds, as a consequence of its prior admission policies the medical school functioned, in effect, as a largely segregated educational institution.
It must be emphasized, however, that the special admission program did not contemplate, nor sanction, the admission of unqualified applicants simply because they were minorities. As reflected in the majority opinion, the medical school did not by any means accept all minority students who applied for admission; in 1973, the school granted interviews to only one-third of the special admission applicants, and in 1974, only one-sixth of such applicants were interviewed. Moreover, no minority applicant was admitted into the medical school without being found fully qualified for medical school study by the same admissions committee that passed on all other applicants.
The majority claim that in accepting some minority applicants with grade point averages, test scores or “benchmark” scores that would have resulted in rejection if such applicants had been white, the medical school has accepted “less qualified” minorities over “more qualified” nonminorities, and therefore that the program is discriminatory and unreasonable.11 The majority err, however, in maintaining that an
applicant‘s race or ethnic background is never relevant to his qualification for medical school. As the medical school points out, there are a number of reasons that an applicant‘s membership in a minority race or ethnic group was properly taken into consideration in evaluating his relative qualification for medical school and his potential for making a contribution to the medical profession.
First, as the chairman of the school‘s admission committee explained, disadvantaged minorities were accorded differential treatment in part because the school concluded that the “objective” academic credentials on which the school had largely relied in the past did not accurately predict such minority applicant‘s qualifications and did not provide an equitable basis for comparison with other applicants.12 To the extent that the differential treatment of minority applicants was thus based on the school‘s determination that its traditional criteria were “culturally biased” against minorities, it seems incontrovertible that the school, at the very least, was entitled voluntarily to adjust its standards to overcome any built-in bias. (Cf. Griggs v. Duke Power Co., supra, 401 U.S. 424.)
Indeed, the medical school‘s decision to deemphasize MCAT scores and grade point averages for minorities is especially reasonable and
While such empirical data might well have justified a revamping of the school‘s admission policies for all applicants, the medical school cannot be said to have acted unreasonably or unconstitutionally in deciding, perhaps as a first step,15 to decrease its reliance on the traditional criteria
Moreover, as the medical school asserts, the minority background of an applicant is relevant to his qualification for medical school and medical practice for reasons beyond the correction of culturally biased academic credentials. As we have already seen, in Swann v. Board of Education, supra, 402 U.S. 1, 16 [28 L.Ed.2d 554, 566-567], the Supreme Court explicitly confirmed that school authorities are constitutionally empowered to utilize benign racial classifications to achieve racially balanced schools “in order to prepare students to live in a pluralistic society.” The special admission process at issue here, of course, was in fact implemented for just such an educational purpose, to provide a diverse, integrated student body in which all medical students might learn to interact with and appreciate the problems of all races so as to adequately prepare them for medical practice in a pluralistic society. This educational interest in a diverse student body is no mere “makeweight“; undergraduate schools and professional institutions of the highest calibre have long recognized that the quality of one‘s educational experience is “affected as importantly by a wide variety of interests, talents, backgrounds and career goals [in the student body] as it is by a fine faculty and . . . libraries [and] laboratories. . . .” (65 Official Register of Harv. U. No. 25 (1968), pp. 104-105.) Thus, given the race and ethnic background of the great majority of students admitted by the medical school, minority applicants possess a distinct qualification for medical school simply by virtue of their ability to enhance the diversity of the student body.
In addition to promoting diversity in the medical school itself, the special admission program was aimed at alleviating the largely segregated nature of the medical profession generally. There is no question but that during the yеars in question here minorities were grossly underrepresented in the medical profession. (See Thompson, Curbing the Black Physician Manpower Shortage (1974) 49 J.Med.Ed. 944.) Realizing that a segregated medical profession might well remain largely oblivious to the realities of life of disadvantaged minorities and the nature and scope of their medical problems, the medical school established the special admission program in part in recognition of its obligation to meet the broad needs of the medical profession at large.
One of the most pressing medical problems in the country, of course, is the paucity of medical services available to residents in poor minority neighborhoods. The medical school tailored its special admission program specifically to meet this problem; all of the minority students accepted under the program came from a disadvantaged background and all expressed their intent to return to practice in poor, minority communities upon completion of their medical training.
The majority, at one point, suggest that this purpose of the special admission program is somehow improper, and that the medical school has, by its approach, committed itself to the illegitimate task of producing, for example, “black [doctors] for blacks.” This simplistic characterization of the special admission process surely does a grave disservice to the medical school. The medical school has by no means undertaken to train black doctors simply to treat blacks, or to train chicano doctors simply to treat chicanos; a minority doctor‘s medical degree is not, of course, a license only to treat minorities. In my view, however, it was neither unreasonable nor improper for the medical school to conclude that at least one of the reasons for the deplorable lack of effective medical services in minority communities is the shortage of minority physicians, and to determine that an increase of disadvantaged minority doctors might play at least some role in improving the situation. (See Karst & Horowitz, Affirmative Action & Equal Protection (1974) 60 Va.L.Rev. 955, 970.)
Indeed, the majority itself recognizes the logic of such an approach with respect to the preference accorded by the medical school to applicants from Northern California. As the majority acknowledge, in the years under consideration here the Davis medical school accorded preferential consideration to applicants from Northern California because of the shortage of doctors in that part of the state; the assumption behind that policy, of course, was that such residents were likely to return to the vicinity of their homes when they began their practice. The majority do not question the propriety or reasonableness of
Finally, over and above the benefits accorded to the medical school and to the medical profession, the special admission program was implemented to serve the larger national interest of promoting an integrated society in which persons of all races are represented in all walks of life and at all income levels. As Professor O‘Neill has explained: “For minority youth, . . . professionals from and within their community offer essential role models. Success and expanding opportunities suggest that there are ways of ‘making it’ without resort to violence. Conversely, the denial or closing off of opportunities for education cannot help but breed frustration, resentment and anger at the predominantly white Anglo society.” (O‘Neill, Racial Preference and Higher Education: The Larger Context (1974) 60 Va.L.Rev. 925, 944.) If any state interest can be said to be “compelling” for purposes of the
Any one of the numerous objectives served by the special admission program would appear sufficient, in itself, to justify the program‘s existence; surely, when viewed cumulatively, they remove any doubt as to the propriety of the medical school‘s consideration of race as one relevant factor in the admission decision.
The majority maintain, however, that although the objectives served by the special admission program may be compelling, the medical school could not properly take race into account in achieving such goals. This suggestion simply ignores the nature of these objectives. First, to the extent that standardized test scores and undergraduate grades are particularly poor measures of the potential of minority applicants, any classification which attempts to correct such inequity must inevitably
It may be argued that while the medical school could appropriately consider race in the admission process, the special admission program at issue here went too far in setting up a fixed “quota” of 16 places in each medical school class. There is no question that if the 16 places represented a predetermined limit on the number of disadvantaged minorities that would be accepted regardless of how they compared with other applicants, the “quota” would pose very grave, probably fatal, constitutional questions. The plaintiff here, however, does not raise any such objection and, if the program actually operates in such fashion, we must await an appropriate constitutional challenge to this aspect of the admission procedure.
If instead of constituting a limit on disadvantaged minority enrollment, the 16 places “reserved” for the special admission program simply represented the university‘s determination that a more than token representation of disadvantaged minorities was needed to achieve the numerous benefits of integration, the specific numerical goal becomes more defensible. Although one may question the medical school‘s decision to establish a designated figure as a matter of policy, past benign racial classification cases suggest that no constitutional infirmity attaches to the establishment of explicit concrete integration goals. (See, e.g., Swann v. Board of Education, supra, 402 U.S. 1, 16 [28 L.Ed.2d 554, 566-567]; U.S. v. Montgomery Bd. of Educ., supra, 395 U.S. 225, 235-236 [23 L.Ed.2d 263, 272-273, 89 S.Ct. 1670]; Southern Illinois Builders Association v. Ogilvie, supra, 471 F.2d 680, 686.)
In light of California‘s sizable minority population16 and the current underrepresentation of minorities in the medical profession, the allocation of 16 out of 100 places to the special admission program can hardly be criticized as unreasonably generous. Moreover, only fully qualified applicants were admitted under the program and thus if there had not
In striking down the special admission program, the majority rely heavily on the medical school‘s asserted failure to prove that it could not have accomplished its objectives by “less onerous” nonracial alternatives. Since benign classifications are not presumptively unconstitutional, however, the majority err in placing upon the medical school the burden of proving the nonexistence of such alternatives. If alternative remedies are relevant to the constitutionality of the program at all, the party attacking the validity of the program should bear the burden of demonstrating the realistic availability of alternative methods of achieving the medical school‘s numerous objectives. Plaintiff completely failed to make any such showing in this case.
Moreover, although the majority conсlude that the medical school failed to demonstrate the unavailability of alternatives, the only evidence in the present record on this point is the admission committee chairman‘s statement that, “in the judgment of the faculty of the Davis Medical School, the special admissions program is the only method whereby the school can produce a diverse student body which will include qualified students from disadvantaged backgrounds. . . . [T]here would be few, if any, black students and few Mexican-American, Indian or Orientals from disadvantaged backgrounds in the Davis Medical School or any other medical school, if the special admissions program and similar programs at other schools did not exist. . . .” (Italics added.) The majority simply reject this unimpeached statement out-of-hand and, without any support from the record, suggest a number of alternatives which on their face are either disingenuous or impractical or both.
The majority initially suggest that the medical school could achieve its goals by utilizing such nonracial means as opening its special admission program to disadvantaged applicants of all races. This alternative—like most of the other nonracial classifications which have been suggested—bears the initial vice of disingenuousness. Because the principal objective
Moreover, although the majority speculate that the broadening of the special admission program to disadvantaged applicants of all races will result in approximately the same amount of integration as the present program, that conclusion appears untenable on its face. Because all disadvantaged students need financial aid, the total number of such students a medical school can afford to admit is limited. As a consequence, inclusion of all disadvantaged students in the special admission program would inevitably decrease the number of minority students admitted under the program and thus curtail the achievement of all integration-related objectives. (See, e.g., Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Rule (1975) 42 U.Chi.L.Rev. 653, 690-692.)
The majority‘s alternative suggestion that the integration of medical schools can be accomplished by increasing the size and number of medical schools is similarly unrealistic. The cost of medical educational facilities is enormous; absolutely nothing suggests that the necessary financial commitment for increased facilities will be forthcoming in the foreseeable future. It is a cruel hoax to deny minorities participation in the medical profession on the basis of such clearly fanciful speculation.
In the end, the majority ultimately defend their holding on the ground that, while there are many laudable objectives served by the special admission program, “there are more forceful policy reasons against preferential admissions based on race.” (Italics added.) (See p. 61, ante.) I do not doubt that both sides of the present controversy can urge strong policy considerations for their positions. (See generally Cox, The Role of the Supreme Court in American Government (1976) pp. 61-68.) Some commentators, like the majority, contend that the adverse effects of any racial classification outweigh any potential benefits (see, e.g., Lavinsky, DeFunis v. Odegaard: The “Non Decision” with a Message (1975) 75 Colum.L.Rev. 520; Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities 1974 Sup.Ct.Rev. 1); at least as many other scholars, however, maintain that the failure to adopt benign classifications as a temporary measure will perpetuate racial and ethnic deprivation for the indefinite future and will preclude ever achieving a colorblind society. (See, e.g., O‘Neill, Discriminating Against Discrimination (1975); Karst & Horowitz, Affirmative Action & Equal Protection (1974) 60 Va.L.Rev. 955.) Similarly, while some commentators argue that racial classifications inevitably have a negative educational impact (see, e.g., Kaplan, Equal Justice in an Unequal World: Equality for the Negro—The Problem of Special Treatment (1966) 61 Nw.U.L.Rev. 363, 379-380), others have suggested just the contrary. (See Ely, The Constitutionality of Reverse Racial Discrimination (1974) 41 U.Chi.L.Rev. 723; Note, Developments in the Law—Equal Protection (1969) 82 Harv.L.Rev. 1065, 1113.) In light of these conflicting judgments, it is understandable that the majority might conclude, as a matter of policy, that it is preferable to avoid any use of racial classification.
The majority are in serious error, however, in equating their own view of appropriate policy with constitutional commands. In this realm, it is the educational authorities, not the courts, that are empowered to render policy judgments. The very difference of opinion among fairminded and responsible educators and scholars suggests that policy decisions in this area should be left to the discretion of individual educational institutions. As we have seen, nothing in either the purpose of the
Two centuries of slavery and racial discrimination have left our nation an awful legacy, a largely separated society in which wealth, educational resources, employment opportunities—indeed all of society‘s benefits—remain largely the preserve of the white-Anglo majority. Until recently, most attempts to overcome the effects of this heritage of racial discrimination have proven unavailing. In the past decade, however, the implementation of numerous “affirmative action” programs, much like the program challenged in this case, have resulted in at least some degree of integration in many of our institutions.
To date, this court has always been at the forefront in protecting the rights of minorities to participate fully in integrated governmental institutions. (See Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876 [31 Cal.Rptr. 606, 382 P.2d 878]; Crawford v. Board of Education, supra, 17 Cal.3d 280.) It is anomalous that the
I cannot join with the majority in concluding that the Constitution precludes the state through the medical school of the University of California at Davis from pursuing of its own volition a program to provide for the effective integration of its student body.
The petition of the defendant and appellant for a rehearing was denied October 28, 1976, and the opinion was modified to read as printed above. Tobriner, J., was of the opinion that the petition should be granted.