GLEN DeRONDE, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Appellants.
S.F. 24145
Supreme Court of California
Feb. 11, 1981.
625 P.2d 220 | 172 Cal. Rptr. 225 | 28 Cal. 3d 875
Glen DeRonde, in pro. per., and John A. DeRonde, Jr., for Plaintiff and Appellant.
Donald L. Reidhaar, John F. Lundberg, Gary Morrison, Lawrence B. Garcia, Harry C. White, Jr., and Patrick K. Moore for Defendants and Appellants.
Cecily B. Nyomarkay, Ralph W. Hilton, David B. Seals, Jerold A. Prod, Lawrence B. Bolton, Richard H. Koppes, Patsy K. Crawford, Fred Okrand, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, Jerry Budin, John Martinez, Gary Ransom, Jeanne E. Raya, Iris Brest, John J. Schwartz, Jack Greenberg, James M. Nabritt III, Napoleon B. Williams, Jr., John H. Erickson, Alice M. Beasley, Henry S. Hewitt, Erickson, Beasley & Hewitt, Mark N. Aaronson, Ronald T. Vera, Susan E. Brown, Peter D. Roos, Marsha L. Morrow, Long & Levit, Michael Wong, Penny N. Nakatsu, Stanley Mark, Bill Lann Lee, David G. Robertson, Linda L. McCall, Morrison & Foerster, Edward H. Steinman and Wayne McCormack as Amici Curiae on behalf of Defendants and Appellants.
OPINION
RICHARDSON, J.---Were the admissions procedures permitting consideration of “ethnic minority status” as a factor in the 1975 selection
Plaintiff Glen DeRonde, a white male, was 1 of 2,238 applicants seeking enrollment in King Hall in 1975. On the basis of criteria hereinafter described, 406 applicants were extended offers of admission. In July 1975, DeRonde, an unsuccessful applicant, sought mandamus in the Yolo County Superior Court against the Regents of the University of California and the Dean of King Hall (collectively described herein as the University), to compel his admission to King Hall and to recover damages for his exclusion. He attacked the University‘s selection procedures alleging that they were unconstitutional because of the preferences extended to minority applicants.
In February 1976 the trial court filed its notice of an intended decision holding that because DeRonde would have been unsuccessful even had the challenged procedures not been used, DeRonde was not entitled to the relief requested. Nonetheless, the court examined the merits of DeRonde‘s constitutional challenge, and concluded that because the University‘s admissions procedures were facially discriminatory they violated the equal protection clauses of both the state and federal Constitutions. The court therefore enjoined the University from utilizing any admission criteria based on an applicant‘s race, color or ethnic origin.
Following the announcement of the intended decision, several interested persons and organizations filed motions to intervene. These motions were denied and a judgment was entered in December 1976. (Although the denial of intervention was affirmed in a separate appeal, various unsuccessful interveners have appeared herein as amici curiae.) The University filed a notice of appeal, and DeRonde has cross-appealed.
In the interim DeRonde has graduated from another law school and has been admitted to the State Bar. Although he no longer seeks entry to King Hall, we have chosen not to dismiss the case as moot. The trial court judgment, enjoining the University, as it does, from its continued use of certain of its admissions criteria, has cast a substantial cloud of uncertainty over the University‘s multiple and widely used procedures. The parties and amici before us have thoroughly briefed the
After first examining the law school‘s admissions procedures we apply both the constitutional principles and analyses contained in appropriate federal and state authorities.
I. THE UNIVERSITY‘S 1975 ADMISSIONS PROCEDURES
The record discloses that in selecting candidates for admission to King Hall in 1975 the University relied principally on a formula which combined an applicant‘s previous academic grade point average (GPA) with his or her score on the standardized law school admissions test (LSAT). This formula yielded a predicted first year average (PFYA) which, it was hoped, measured, at least roughly, the applicant‘s potential for law study.
Believing, however, that the foregoing formula tended to ignore other significant and relevant selection factors, the University considered several additional background elements to supplement or mitigate a lower PFYA. These factors included (1) growth, maturity and commitment to law study (as shown by prior employment, extracurricular and community activities, advanced degrees or studies, and personal statements and recommendations), (2) factors which, while no longer present, had affected previous academic grades (such as temporary physical handicaps or disruptive changes in school or environment), (3) wide discrepancies between grades and test scores where there was indicated evidence of substantial ability and motivation, (4) rigor of undergraduate studies, (5) economic disadvantage, and (6) “ethnic minority status” contributing to diversity.
It is the consideration by the University of the final factor, “ethnic minority status,” which is the principal target of DeRonde‘s attack. Trial testimony established that “ethnic minority status” was defined by
Just as a relatively low PFYA might be increased by utilization of any of the foregoing factors, alternatively, a relatively high PFYA could be reduced by considering (1) the applicant‘s prior schools attended, (2) the difficulty of his or her prior course of study, (3) variations in an applicant‘s multiple LSAT scores, (4) the absence of any factors indicating maturity or motivation, and (5) the applicant‘s advanced age.
As a consequence of this formulation, in 1975, the 406 students to whom the University offered admission included 135 minority applicants, and more than 1,800 applicants including DeRonde were rejected. DeRonde‘s 3.47 GPA and 575 LSAT score produced a 2.70 PFYA. The PFYAs of successful applicants ranged from 2.24 to 3.43. Sixty-nine minority applicants were accepted with PFYAs lower than DeRonde‘s. On the other hand, the more than 800 unsuccessful applicants who had higher PFYAs than DeRonde included 35 minority applicants. It was on the basis of these latter statistics that the lower court found that DeRonde would have been rejected for admission even if the University had not employed an admissions procedure which gave consideration to “ethnic minority status.”
We examine the constitutional issues.
Our analysis of the federal constitutional questions is both aided and controlled by the decision of the United States Supreme Court in University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733]. In that case, Bakke, a disappointed white male applicant for admission to the School of Medicine at the University of California at Davis, challenged on equal protection grounds an admissions policy which reserved to disadvantaged minority (Asian, American Indian, Black, and Chicano) students 16 of the 100 available seats. Although a majority of the high court invalidated this fixed quota system, multiple opinions were filed.
Four justices (Stevens, J., joined by Burger, C. J., Stewart and Rehnquist, JJ.) found it unnecessary to reach the constitutional issue, concluding as they did that the Davis quota system violated the general antidiscrimination provisions of title VI of the federal Civil Rights Act. (See 438 U.S. at pp. 408, 421 [57 L.Ed.2d at pp. 845, 853].) Four other justices (Brennan, White, Marshall, and Blackmun, JJ., writing a joint opinion hereafter referred to as the Brennan opinion) were of the view that the quota system (as well as other race conscious admissions systems) was proper under both the Civil Rights Act and the federal Constitution, as a means of overcoming the effects of past discrimination. (See id., at pp. 324, 362, 369 [57 L.Ed.2d at pp. 792, 816, 821].)
Justice Powell, writing separately and joined by no other justice, concurred in striking down the Davis quota system, thereby affording majority support for its invalidity. In stating his view that the Davis quota system was unconstitutional under the federal equal protection clause, he characterized the Davis procedure as one employing “an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class.” (P. 319 [57 L.Ed.2d at p. 789].)
A majority of the justices voted to overturn the challenged system. Of even greater importance to the resolution of the present case, however, a separate but clear majority of the high court (namely, Powell, Brennan, White, Marshall, and Blackmun, JJ.) indicated approval of race conscious admissions programs similar to the University‘s procedure under scrutiny here. (See pp. 316-319 [57 L.Ed.2d at pp. 787-789] [opn. of Powell, J.]; 324-326, and fn. 1 [57 L.Ed.2d at pp. 792-793] [opn. of
In passing, we note that a comparable analytical approach was used by the Washington Supreme Court in McDonald v. Hogness (1979) 92 Wn.2d 431 [598 P.2d 707, 712-715], certiorari denied 445 U.S. 962 [64 L.Ed.2d 238, 100 S.Ct. 1650], in upholding a race-sensitive medical school admissions program closely akin to the University‘s procedures herein challenged. Bakke itself has drawn much academic interest and attention, expressed in many useful law review articles, several of which adopt a comparable analysis of the various Bakke opinions. (See, e.g., A Symposium: Regents of the University of California v. Bakke (1979) 67 Cal.L.Rev. 1 et seq.; Karst & Horowitz, The Bakke Opinions and Equal Protection Doctrine (1979) 14 Harv.Civ.Rights-Civ. Lib. L.Rev. 7; Lesnick, What Does Bakke Require of Law Schools (1979) 128 U.Pa. L.Rev. 141; Stone, Equal Protection in Special Admissions Programs: Forward from Bakke (1979) 6 Hastings Const.L.Q. 719; Note, The Supreme Court, 1977 Term, Constitutional Law (1978) 92 Harv.L.Rev. 57, 131.)
a) The Powell Opinion. Because Justice Powell represented the “swing” or pivotal vote in Bakke, we focus first on his views. He concluded that although any race conscious classification must serve a compelling governmental interest (see pp. 299, 305 [57 L.Ed.2d at pp. 776-777, 780-781]), nevertheless “the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin” (p. 320 [57 L.Ed.2d at p. 790]). He expressly cited with approval the admissions procedures used at Harvard College, whereby diversity among its students is sought without using racial quotas or otherwise precluding qualified applicants from competing for all available seats in the entering class. “Diversity” under the Harvard program includes a variety of factors, such as geographic origin, unusual life experience, special talent and educational qualifications, as well as disadvantaged economic, racial or ethnic background.
We find significance in Justice Powell‘s description and evaluation of the Harvard program: “In such an admissions program, race or ethnic background may be deemed a ‘plus’ in a particular applicant‘s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the
“This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.” (Pp. 317-318 [57 L.Ed.2d at pp. 788-789].)
In our view the admissions procedures used by the University to select its 1975 entering class at King Hall does not vary in any significant way from the Harvard program. Minority racial or ethnic origin was one of several competing factors used by the University to reach its ultimate decision whether or not to admit a particular applicant. Each application, as contemplated by the program, was individually examined and evaluated in the light of the various positive and negative admission factors. As Justice Powell pointedly observed, the primary and obvious defect in the quota system in Bakke was that it precluded individualized consideration of every applicant without regard to race. (Pp. 317-318, and fn. 52 [57 L.Ed.2d at pp. 788-789].) That fatal flaw does not appear in the admissions procedure before us. This is not a quota case. Thus, we conclude that the race attentive admissions procedure used by the University in 1975 would have passed federal
b) The Brennan Opinion. The Brennan opinion, representing the views of four justices, would have upheld the Davis quota system invalidated by the majority in Bakke. It may fairly be concluded that a race conscious law school admissions program that did not involve a quota, a fortiori, would be sustained by those holding the Brennan view. Justice Brennan also expressed approval of the Harvard admissions program, albeit on a different ground than the diversity benefit emphasized by Justice Powell. Justice Brennan “agree[d] with MR. JUSTICE POWELL that a plan like the ‘Harvard’ plan ... is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.” (P. 326, fn. 1 [57 L.Ed.2d at p. 793]; see also pp. 378-379 [57 L.Ed.2d at pp. 826-827] [expressing the view that the Harvard plan is “no more or less constitutionally acceptable” than the Davis quota system ruled invalid by the majority].) Justice Brennan expands the foregoing requirement of a past discriminatory effect and would hold that even a racial quota system such as involved in Bakke was constitutional if its purpose “is to remove the disparate racial impact [the University‘s] actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large.” (P. 369 [57 L.Ed.2d at pp. 820-821].)
Because the trial of the present case preceded the filing of federal Bakke, the parties, of course, neither framed nor litigated the issue---whether the University‘s admissions program was “necessitated by the lingering effects of past discrimination.” Nevertheless, in our view, the record before us does amply establish “past discrimination” within the contemplation of the Brennan opinion and standards.
First, the evidence supports a finding that the use of a race conscious admissions program was needed to prevent a disproportionate underrepresentation of minorities in King Hall. The testimony of Professor Barrett, former dean of the law school, stressed that if admission selection was based solely upon “numbers” (i.e., GPA and LSAT scores), “the greatest bulk of the minority applicants” would be excluded. No contrary testimony was introduced at trial.
Finally, the existence of a nexus between past discrimination and present disproportionate academic and professional underrepresentation was fully acknowledged in the Brennan opinion itself, wherein it was readily assumed that societal discrimination against minorities has impaired their access to equal educational opportunity. As the opinion states, “Davis clearly could conclude that the serious and persistent underrepresentation of minorities in medicine ... is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education and in society generally, as well as in the medical profession. [Pp. 370-371 (57 L.Ed.2d at pp. 821-822).] ... [¶] Judicial decrees recognizing discrimination in public education in California testify to the fact of widespread discrimination suffered by California-born minority applicants; ... [T]he conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to Brown I [Brown v. Board of Education (1954) 347 U.S. 483 (98 L.Ed. 873, 74 S.Ct. 686, 38 A.L.R.2d 1180)], or the equally debilitating pervasive private discrimination fostered by our long history of official discrimination [citation], and yet come to the starting line with an education equal to whites.” (P. 372, [57 L.Ed.2d, pp. 822-823], italics added, fns. omitted.)
Although the foregoing observations were expressed within the context of a discussion of minority admissions to medical school, it seems fair to conclude that the justices joining in the Brennan opinion would reach an identical conclusion with respect to the effect of past societal discrimination upon minority applicants to King Hall. While Justice Powell regarded as too speculative the provability of any connection between past discrimination and minority failures to gain admission (see p. 296, fn. 36 [57 L.Ed.2d, p. 775]), no such misgivings are expressed in the Brennan opinion.
Accordingly, we conclude that, whether based on the Powell reasoning of assuring an academically beneficial diversity among the student
We readily acknowledge, of course, that a facially valid procedure may in its actual application produce a constitutionally discriminatory result. Indeed, Justice Powell in Bakke fully and fairly both raised the possibility and anticipated the answer, noting: “It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated---but no less effective---means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner‘s preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element---to be weighed fairly against other elements---in the selection process. ... And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. [Citations.]” (Pp. 318-319 [57 L.Ed.2d, p. 789], italics added; but see pp. 378-379 [57 L.Ed.2d, pp. 826-827] [opn. of Brennan, J.].) Again, we emphasize Justice Powell‘s analysis on the point because the Brennan group presumably would permit even a deliberate and systematic exclusion of white applicants if supported by the requisite showing of past discrimination.
Justice Powell further observed that “So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an applicant can establish that the institution does not adhere to a policy of individual comparisons, or can show that a systematic exclusion of certain groups results, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose.” (Id., at p. 319, fn. 53 [57 L.Ed.2d at p. 789].)
The record before us is barren of any evidence showing that the University was deliberately using the challenged admissions procedure either as a “cover” for a quota system or as a means of systematic exclusion of, or discrimination against, white male applicants such as DeRonde. The trial court made no such finding. Without proof of such
Moreover, the evidence fails to support a finding of such disproportionate impact. The record does reflect that, between 1971 and 1977, the percentage of minorities in the entering classes at King Hall has been substantial, fluctuating from a low of 22.78 percent in 1971 to a high of 41.6 percent in 1976. From this arithmetic, DeRonde argues that “for six straight years from 1971 to 1976, the percentage of minority students entering classes at Davis Law School averaged 33% of those classes. This was at a time when more highly qualified male Caucasians were applying for admission than in the history of the school .... [¶] How can there be said to exist no ‘disproportionate’ impact when extremely well-qualified male Caucasian applicants outnumber poorly-qualified minority applicants by over three to one and are admitted to the school in a lesser percentage?” (Italics added.)
As the italicized portion of the argument reveals, the principal difficulty with DeRonde‘s statistical analysis is that it is based upon the faulty premise that it is only a high PFYA or GPA which truly “qualifies” an applicant for admission to law school. Yet as Justice Powell carefully explained in Bakke, racial or ethnic origin, as well as other “nonobjective” factors, such as personal talents, work experience or leadership potential, properly may be considered in weighing each applicant‘s qualifications. (438 U.S. at pp. 317-320 [57 L.Ed.2d at pp. 788-790]; for a probing analysis of the concept of “merit” within the academic context, see Fallon, To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of Antidiscrimination (1980) 60 B. U. L.Rev. 815, 871-876.)
DeRonde‘s statistics may indicate that the University has placed considerable weight upon racial or ethnic factors in determining the composition of its entering law classes. Yet nothing in Bakke prohibits such a practice, so long as individualized personal consideration is given to the varied qualifications of each applicant. Furthermore, the fact remains that male Caucasian applicants to King Hall continue to gain admission in respectable numbers. For example, according to DeRonde‘s own figures, in 1975, the year of DeRonde‘s application, 157
We conclude that the University‘s 1975 admissions procedures did not violate the equal protection clause of the federal Constitution, as authoritatively interpreted by a majority of the United States Supreme Court in its Bakke decision. We turn then to DeRonde‘s contention that these procedures violated similar provisions of the California Constitution.
III. CALIFORNIA CONSTITUTION
DeRonde, relying primarily upon the reasoning of the majority in Bakke v. Regents of University of California (1976) 18 Cal.3d 34 [132 Cal.Rptr. 680, 553 P.2d 1152], urges us to hold that the University‘s race conscious admissions program violated the equal protection guarantees of article I, section 7, of the state Constitution. DeRonde correctly observes that, on some prior occasions, a majority of our court has departed from applicable federal precedents in reliance upon state constitutional principles. (E.g., Serrano v. Priest (1976) 18 Cal.3d 728, 764 [135 Cal.Rptr. 345, 557 P.2d 929]; People v. Brisendine (1975) 13 Cal.3d 528, 545 [119 Cal. Rptr. 315, 531 P.2d 1099].) As Serrano holds, the equal protection guarantees contained in
In Price, we upheld an affirmative action hiring program ordered by a county civil service commission as a means of alleviating an underrepresentation of minority employees attributable to past discriminatory employment practices by the hiring entity. We first observed that the county‘s hiring program was consistent with federal constitutional guarantees as declared by the United States Supreme Court in Bakke and
Having held in Price, wherein an express quota was applied, that the state Constitution places no greater restrictions upon affirmative action programs encouraging increased minority representation than are imposed by the federal Constitution, a fortiori, under principles of stare decisis, we impose no state constitutional bar where the program involves no fixed quota but only consideration of race as one among several other qualifying factors. Although the University‘s admissions program at issue here is presented within the context of educational opportunity rather than employment hiring, the Price analysis is equally applicable.
In conclusion, both for practical and policy reasons, we do not lightly disregard pertinent decisions of the United States Supreme Court resolving issues of nationwide interest and importance. Uniform standards in the critical area of educational opportunity appear desirable. The high court‘s Bakke decision, although based on differing rationales, gives clear guidance for our decision to the extent that it is controlled by the equal protection requirements of the United States Constitution. We ourselves, by majority vote very recently in Price, concluded that even utilization of a fixed quota did not offend the California Constitution.
The judgment is reversed to the extent that it (1) declares the University‘s admissions program is discriminatory and a violation of equal protection of the laws, (2) enjoins the University from any consideration of race, color or ethnic origin in the admissions process at King Hall, and (3) awards costs of suit to DeRonde. In all other respects, the judgment is affirmed.
Bird, C. J., Tobriner, J., and Rattigan, J.,* concurred.
MOSK, J.---I dissent.
The majority opinion, I regret to say, was preordained. Any court that would stray so far from basic principles of constitutional equal protection as to approve a rigid racial quota system in public employment (Price v. Civil Service Com. (1980) 26 Cal.3d 257 [161 Cal.Rptr. 475, 604 P.2d 1365]) can be expected to accept any program of race consciousness in public education. But repetition does not disinfect, it exacerbates legal and social error.
The majority, armed in adamant, insist upon turning the calendar back several decades. They have chosen to revive the indefensible practices of pre-Brown days (Brown v. Board of Education (1954) 347 U.S. 483 [98 L.Ed. 873, 74 S.Ct. 686, 38 A.L.R.2d 1180]) when skin pigmentation and ethnicity were the qualifications that determined a child‘s school. They have rejected the plea of Justice Harlan in Plessy v. Ferguson (1896) 163 U.S. 537 [41 L.Ed. 256, 16 S.Ct. 1138], for a colorblind America, the rallying cry for civil rights martyrs from Wil-
*Assigned by the Chairperson of the Judicial Council.
The approval of consideration of race as a factor in public education is in stark contrast to the enlightened views of the then majority of this court more than three decades ago, prior to emergence of the civil rights movement. In invalidating the state‘s miscegenation statute, Justice Traynor observed that the “right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals ... the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race.” (Perez v. Sharp (1948) 32 Cal.2d 711, 716 [198 P.2d 17].) To the contention that racial characteristics may be a factor in measuring rights, Justice Traynor wryly observed that “Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.” (Id., p. 725.) If the right to marry is the right of individuals, not of racial groups, a fortiori the right to become an educated person through a public school is strictly individual and not subject to approval or rejection because of ethnic characteristics.
The Traynor opinion in Perez was not an aberration. Until a newly constructed majority prevailed in Price, this court had consistently maintained that race or similar characteristics are not a qualification or disqualification for the benefits of society. Chief Justice Gibson declared in James v. Marinship Corp. (1944) 25 Cal.2d 721, 739 [155 P.2d 329, 160 A.L.R. 900], that racial discrimination in admission to union membership is “contrary to the public policy of the United States and this
The majority opinion is based primarily on a belief that the admission policy at Davis does not on its face offend the federal Constitution. It conveniently overlooks (a) provisions of the California Constitution which are violated by a race-conscious scheme, and (b) facts which demonstrate that the Davis policy, even if some persons may believe it to be constitutional on its face, is unconstitutional as applied.
Justice Paras ably pointed up the state constitutional issue for the Court of Appeal in this case. He wrote, inter alia: “Since here the University‘s admissions program does not use quotas, it does not violate the
“Most recently in People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108], our Supreme Court summarized the independent state grounds doctrine as follows: ‘The standard to be applied in resolving this issue is also now settled: “in the area of fundamental civil liberties---which includes not only freedom from unlawful search and seizure but all protections of the California Declaration of Rights---we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental civil rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.” (People v. Longwill, at p. 951, fn. 4, of 14 Cal.3d [123 Cal.Rptr. 297, 538 P.2d 753]; accord, Serrano v. Priest, at p. 764 of 18 Cal.3d; People v. Hannon, at p. 606 of 19 Cal.3d [138 Cal.Rptr. 885, 564 P.2d 1203].)’ (Italics added.)
“Section 7 of article I, is of course included in California‘s declaration of rights. And even though the right to an education, the subject of our inquiry, is not expressly guaranteed by our Constitution, it is nonetheless ‘a fundamental interest’ (Serrano v. Priest, supra, 18 Cal.3d at p. 766), as to which ‘[i]n applying our state constitutional provisions guaranteeing equal protection of the laws we shall continue to apply strict and searching judicial scrutiny ...’ (id., at p. 767); it is among ‘those individual rights and liberties which lie at the core of our free and representative form of government’ (id., at pp. 767-768).”
For the foregoing reason and those stated in this court‘s six-to-one opinion in Bakke v. Regents of University of California (1976) 18
In attempting to meet its burden of proving a compelling state interest, the Davis administration initially denies it gives preferential treatment on the basis of race; it contends that ethnicity is only one factor considered in admissions. Obviously no one takes that sophistry seriously, least of all my colleagues. Indeed, they concede that “the University-has placed considerable weight upon racial or ethnic factors” but insist nothing prohibits such a practice. They proceed to offer three conflicting theories purporting to justify giving preference to minority applicants.
The majority opinion raises the issue of “disproportionate underrepresentation of minorities” at Davis. This is a strange new concept that is creeping into legal literature as an apologia for preferential treatment of applicants to public institutions. No one has cited any constitutional authority that requires or permits some kind of statistical parity among applicants on the basis of race, color, sex or national origin; if there can be no proportionate representation, it seems obvious there can be no disproportionate underrepresentation. No valid formula has been devised to ascertain out of every 100 admittees how many should be male or female; black or white; Catholic, Protestant, Jewish or Buddhist; German, Irish, Italian, Japanese, Mexican, Russian or Swedish. Indeed any such formula would make a mockery of the traditional democratic theory of selection on the basis of individual merit. And it would violate the condemnation of quotas in Justice Powell‘s opinion in University of California Regents v. Bakke, supra, 438 U.S. 265, upon which the majority heavily lean.
A third alternative theory in the vain effort of the university to meet its burden is the purported desire to achieve diversity in the student body. With mere superficial consideration that concept may seem beguiling. It does not, however, withstand strict scrutiny.
I assume that not even a fanatical advocate of the modern racism would insist that achieving a diverse student body takes precedence over freedom of speech, freedom of religion, freedom of assembly, or the right to due process. Why, one is impelled to ask, should that asserted academic goal—even if desirable—assume a higher priority than the constitutional guarantee of equal protection? This selectivity over which constitutional guarantees are to be preserved, and which sacrificed, arrogates to an elite academic committee an awesome power never previously countenanced.
As Professor Dershowitz points out, even if diversity were a significant factor in enhancing the educational process—which is dubious—it would not follow that race adds to that diversity. “An applicant‘s potential ability to contribute to the diversity of the student body is uniquely a function of his or her individual experiences, interests, approaches, talents, and characteristics. The prep school black brought up in a middle-class neighborhood by professional parents might contribute far less diversity than a Hasidic Jew from Brooklyn, a Portuguese fisherman from New Bedford, a coal miner from Kentucky, or a recent emigre from the Soviet Union.” (Id., p. 419; see also fn. 1, ante.) He therefore found the conclusion inescapable that to give members of a minority race a preference in admissions is simply to reward them for the accident of their race, a fact that has no relevancy to the purported goals of education for service in a profession. In addition, “To reward some persons for the accident of their race is inevitably to punish others for the accident of theirs.” (Id., pp. 420-421.)
Finally, there are untried alternative and less drastic methods to achieve the goals purportedly sought by the university. If Davis genuinely seeks to aid those who need assistance in obtaining a professional education, it need not resort to the device of weighing race as a factor, either to favor those of certain specified races or to penalize those who are not included in the preferential categories. For example, Davis could consider the type of program undertaken at Temple University Law School, which in its enrollment weighs consideration “for the dis-
Under that type of program, opportunities open up equally for all victims of deprivation: the black from the inner city, the Chicano from the farm fields, the oriental refugee from Asian communism, the Caucasian whose parents speak a foreign language at home, the student of any ethnic heritage who has conquered physical disability or whose family has existed below the poverty level. The actual handicap or adversity overcome may be a factor in admission consideration, not the color of skin or the surname.2
Since none of the theories advanced by the university, and accepted by the majority, meet the burden of the strict scrutiny test, I conclude the admission scheme is unconstitutional under the equal protection clause of the California Constitution, i.e.,
The majority, in their reliance on the opinion of Justice Powell in the federal Bakke case, appear to accept the university‘s contention that race is merely one isolated, presumably minor factor in the selection process. The facts are otherwise. The plaintiff presented persuasive evidence that the Davis admissions committee was predisposed to place undue emphasis upon race. Four of the six members of the committee not only were of minority ethnic backgrounds themselves but also were or had been active in organizations dedicated to increasing the number of admittees from their particular racial group. Under the circumstances the committee‘s objectivity was suspect at the outset.
When to that predisposition are added the figures of actual admissions to Davis for the year when plaintiff applied, and for the
The foregoing would be unobjectionable if the selected minority members were distinguished by criteria other than race. Again, the facts, regrettably, are otherwise. The mean Law School Admissions Test (LSAT) score for minorities was 562, for white males 676, an average of 114 points higher. The mean grade point average (GPA) for minorities was 3.27, for white males 3.57.
For previous years, the figures are even more disparate. In 1972, only 5 percent of white male applicants and 7 percent of white female applicants were admitted, compared with 33.6 percent of minority applicants. In 1973, the figures were 8 percent of white male applicants and 6 percent of white female applicants, compared with 26 percent of minority applicants; in that year the mean LSAT was 565 for minority admittees compared with 692 for white male admittees, and 3.17 GPA for minorities compared with 3.43 for white males.
If more minority applicants, even though less qualified, could be admitted without impacting on others better qualified, we could remain unconcerned. But the disparate figures, year after year, have had a significant cumulative effect on the student body demography. In 1969-1970, the minority percentage of the total student population was 13.1 percent. By 1972-1973 the minority percentage rose to 41.6 of the entire student body. Again I stress that the increase would be laudable if, absent consideration of race, the minority admittees had equal objective qualifications, but the figures demonstrate otherwise. Thus while whites generally and white male applicants particularly scored consistently higher on the LSAT and GPA, their representation in the whole Davis student body decreased in a mere three years from 86.9 percent in 1969 to 58.4 in 1972. This demonstrates that race was the most important factor in admission decisions and, I submit, constitutes invidious discrimination, based on race, against whites generally and white male applicants in particular. The circumstantial evidence is overwhelming that this overt discrimination has been practiced deliberately by the admissions committee acting for the administration of this tax-supported university.
Thus the trial court was in error in finding from the evidence that plaintiff would not have been admitted even absent the school‘s race-conscious program. The plaintiff graduated from Davis as an undergraduate with a 3.47 GPA, 575 on the LSAT and a predicted first year average of 2.70, higher than 72 ethnic minorities admitted. His LSAT was higher than 88 admittees, 78 of whom were minorities. His writing ability score was higher than 36 admittees, 33 of whom were minorities. It seems clear that without the preferential treatment of applicants—acceptance of some and rejection of others on the basis of race—this plaintiff would have been included among the successful applicants in 1975.
There are other relevant matters relating to the unconstitutionality of the Davis scheme as applied. The choice of the particular races entitled to preferential treatment is itself suspect. There is every indication that the races to be included in the preferential group, and those excluded, are determined to a considerable extent by responsiveness to the pressure emanating from well-intentioned but self-serving organizations. For example, no ethnic group in our society is better adjusted, completely accepted and more successful academically and economically than Asian-Americans.3 Let me emphasize that I relate this with profound admiration, in view of the tragic record of past legal and extralegal discrimination against those in earlier generations who came or were brought here from the orient. (E.g., see Chuman, The Bamboo People: The Law and Japanese-Americans (1976) p. 72 ff.) The United States Commission on Civil Rights reports that as of 1970 only 13.5 percent of majority males in the United States had completed at least four years of college, but 19 percent of Japanese-American males, 25 percent of Chinese-American males and 15 percent of Filipino-American males had a college education. Among females, the percentages of college educated were 8.1 percent for the majority, 11 percent for Japanese-Americans, 17 percent for Chinese-Americans and 27 percent for
Economically, Asian-Americans are doing very well.4 While the mean annual income of employed persons reported for the preinflation year 1970 for majority males was $7,375, it was $8,183 for Japanese-Americans, $7,553 for Korean-Americans, and only slightly less for Chinese-Americans and Filipino-Americans. Every group of employed Asian-American females earned more than Caucasian females (id., p. 11).
None of the foregoing would suggest to any objective observer that Asian Americans require preferential treatment in publicly financed schools of higher learning. Why, then, are they included as a favored racial group? There is a hint of the answer in the Commission on Civil Rights publication cited above. When the Solicitor General filed a brief for the government in the federal Bakke case, he raised questions as to whether Asian Americans should be included in the Davis quota. The government‘s position was changed prior to oral argument, the commission concedes, as the result of “extensive lobbying efforts,” including remonstrations with both the Justice Department and the White House (id., pp. 22-23).5
I do not intend to single out Asian Americans for comment on pressure activities. Every ethnic group engages in similar efforts to assure its inclusion among those who are to be given preferential treatment, and few political, academic—and more recently, judicial—institutions
The briefs submitted in this case are interesting; they reveal how well-meaning organizations will proclaim devotion to principle, but rise above principle when an opportunity for advantage appears. An amicus brief has been submitted by a group entitled Chinese for Affirmative Action, which declares itself dedicated for more than a decade to the laudable objectives of “eradication of racial discrimination against Chinese in America and for the promotion of equal opportunities for all minority groups.” A similar amicus brief has been submitted by the Asian American Legal Defense and Education Fund, which declares it was formed to protect Asian Americans in “the right to equal educational opportunity.” And the Mexican-American organizations’ brief (on behalf of the Mexican-American Legal Defense and Educational Fund, the National Chicano Council on Higher Education, the Association of Mexican-American Educators, Raza Administrators and Counselors in Higher Education, the League of United Latin American Citizens, and the National Council of La Raza) indicated their purpose in existing is “the goal of equal educational opportunities for Hispanics.” So, too, has a letter brief from the Native American Law Student Association declared its devotion “to equal educational opportunities” for Native Americans and other minorities. (Italics added.) It is significant that every organization purporting to speak for minorities concedes it was formed to press for equal opportunity in education. Not one was organized to demand, as is being sought here, preferential consideration on the basis of race.
With sadness one observes how far these groups have strayed from the wisdom of the great American, Frederick Douglass, born in slavery: “I base no man‘s right upon his color and plead no man‘s right because
Although it is improper for government or public institutions to allocate upon ethnicity, I emphasize that it is proper in our diverse society for groups to perpetuate their ethnic culture and racial identity. The danger arises when ethnic pride gives way to ethnic chauvinism and ultimately to ethnic demagoguery.
The Governor and several members of his administration have also filed an amicus brief, concluding with the contention that “the First Amendment right to a diverse student body” must prevail over the equal protection clause of the state Constitution. That the
Finally, an amicus brief has been submitted in support of the university by the American Civil Liberties Union (ACLU). It raises remarkable arguments based on “equality, academic freedom and independent interpretations of state constitutions.” The contentions are irreconcilable with logic, for it is plaintiff DeRonde who asserts he is a victim of inequality and academic obfuscation—not the university—and the Court of Appeal, the opinion of which is superseded by the majority, relied entirely upon the California Constitution. The ACLU, as it did in its unsuccessful attempt to frustrate Alan Bakke‘s efforts as an individual to win admission to medical school, has once again chosen the uncharacteristic role of supporting an establishment program based on recognition of group characteristics and values as opposed to the right of persons to be treated and evaluated as individuals.
A program of race-consciousness necessarily arouses divisive debates over purported group characteristics. An attitude of racial superiority is candidly expressed by admissions officers of some law schools. The following excerpts from a legal publication (L.A. Daily J. (Nov. 24,
“‘If we can‘t have an affirmative action program we would radically reduce the number of minority students we could have,’ said ... the admissions director at Boalt Hall School of Law in Berkeley. [¶] Last year, Boalt admitted 67 minority students into its entering class. But only seven of those students would have been admitted without an admissions policy that allows a discount on test scores and grades for minority applicants.... [¶] ‘In the highly competitive process for admission to this school, if those students were not given some special consideration it‘s unlikely that they could survive that competitive process.‘” (Italics added.)
The foregoing program raises a basic question: when the number of available admissions in a public institution is limited, in a constitutional society is there any rational reason to prefer those who cannot survive the competitive process over those who do survive that process? It should be readily apparent that such preference cannot be reconciled with principles of equal protection.7
As Professor John Hart Ely posed the issue in his book Democracy and Distrust (1980), page 170: “no matter what we call it—a preference, a quota, a quest for diversity—weighing, say, blackness affirmatively necessarily means that others are going to be denied the opportunities in question because they were not born black.” And again he observed that “any affirmative action plan that counts blackness affirmatively, even in the context of numerous other factors, necessarily results in the rejection of some applicants who would not be rejected were they black, and in that sense are being turned away ‘only’ because they are not black.” (Id. at p. 257, fn. 102.)
The theories of master racism are inherently evil, whether evidenced by Nazi Germany‘s genocide of a religious minority, white-controlled South Africa‘s apartheid program aimed at a racial majority, or black-controlled Uganda‘s expulsion of an Indian minority. In the final 2 decades of the 20th century it is incongruous for racism in any guise to creep by stealth into American academia, and to be not only abjectly accepted, but now stoutly defended. If the principles of democracy and constitutional equal protection are not recognized in the intellectual environment of taxpayer-supported institutions of higher learning, perhaps one should not be so incredulous when some judges are willing to blindly acquiesce in public benefits being bestowed or withheld in whole or in part on the basis of race.
One of the tragedies of history is that courts of law have placed their stamp of approval on racism. In People v. Hall (1854) 4 Cal. 399, our predecessors on this court upheld a statute that prohibited “black, yellow and all other colors” of persons, whom “nature has marked as inferior,” from testifying against whites.
But the cases that will endure, that will pass the test of time, are not those that emphasize race as a benefit or detriment, but those that totally exclude race as a consideration in determining rights. One may ask, rhetorically, which opinion will enjoy the plaudits of posterity, Brown v. Board of Education—which took racial factors out of the public schools—or the majority opinion in Plessy v. Ferguson—which permitted separation on a basis of race? It seems equally inevitable that the perspective of time will relegate Price, which approved a mathematical racial quota in public employment, to the same historical ashheap that contains such cases emphasizing race as People v. Hall, supra,
Opinions such as the majority in this case are, like Price, a radical departure from the spirit of the
In a society in which men and women expect to succeed by bettering themselves through individual industry—the traditional work ethic—it is no trivial moral wrong to systemically defeat this expectation by subjecting them to group scrutiny. Any system guilty of rejecting an applicant for public school admission when he or she excels in meeting established objective requirements, in favor of others who are less qualified by the same standards, is immoral; it is also self-defeating in the long run because of its acceptance of mediocrity. One can only hope that ultimately this new egalitarianism will be rejected because, as Barbara Tuchman recently wrote, “the urge for the best is an element of humankind as inherent as the heartbeat.”9
Years ago medical doctors attempted to cure morphine addiction with doses of heroin. Such efforts were doomed to failure, and worse.8
I quoted Professor Van Alstyne‘s peroration in my Price dissent. It bears repetition: “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one‘s own life—or in the life or practices of one‘s government—the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.” (Van Alstyne, Rites of Passage (1979) 46 U.Chi.L.Rev. 775, 809-810.)
I would affirm the order of the trial court insofar as it holds the university admissions procedure to be invalid and enjoins the university from utilizing admissions criteria based upon color, sex, race, religion or ethnic origin. I would reverse the order of the trial court denying plaintiff‘s application for a writ of mandate and denying plaintiff‘s motion to amend his complaint.
Clark, J., concurred.
The petition for a rehearing was denied March 11, 1981, and the dissenting opinion was modified to read as printed above. Newman, J., did not participate therein. Rattigan, J.,* participated therein. Mosk, J., was of the opinion that the petition should be granted.
*Assigned by the Chairperson of the Judicial Council.