Regents of the University of California v. Bakke
438 U.S. 265 (1978)


YES! -- Brief Amicus Curiae of the ASSOCIATION OF AMERICAN LAW SCHOOLS, pages 27-54 (in standard type): If professional schools are prohibited from using race as a factor in admissions, minority enrollment will plummet. We have undertaken to remove the vestiges of caste from our society, not only by improving the conditions of life among historically disadvantaged minorities, but also by creating a racially integrated society, with racial equality in all spheres of American life. The question presented in this case is whether, now that we have made that commitment, the Constitution should be construed to forbid measures that are essential to its performance. [footnotes omitted]

NO! -- Interspersed REBUTTAL by CURTIS CRAWFORD (in italics): There is a national commitment to improve "the conditions of life" of the disadvantaged, but it applies regardless of race. The commitment to a "racially integrated society" is best defined as a commitment that every person has the right not to be excluded because of race; but no racial or ethnic group has the right to an equal or to any particular level of achievement. To the fulfillment of these commitments, properly defined, racial preference in university admissions is not "essential" but inimical.

Association of American Law Schools

[Page 27]
2. Minority Students Would Be Almost Eliminated From Law School Without Special Admissions Programs

The unpleasant but unalterable reality is that affirmance of the *decision below* would mean, for the law schools, a **return to the virtually all-white student bodies** that existed prior to ***the Civil Rights Act of 1964 and subsequent congressional enactments which, after so many years of default, finally committed the nation to the goal of racial equality.***

The unpleasant but unalterable reality is that affirmance of the *decision below* would mean, for the law schools, a **return to the virtually all-white student bodies** that existed prior to ***the Civil Rights Act of 1964 and subsequent congressional enactments which, after so many years of default, finally committed the nation to the goal of racial equality.***


* The "decision below," by the California Supreme Court, forbade the use of racial preference in admissions to the University of California Medical School at Davis.

** The phrase, "virtually all-white" overstates the impact that race-neutral admissions would have on black and Chicano applicants, and quite forgets the significant and growing presence of well-qualified, Asian-American law students.

*** The "racial equality" mandated by the Civil Rights Act of 1964 is equality of treatment: i.e., no discrimination based on race or ethnicity. This form of racial equality is precisely what was commanded by the California Supreme Court in the "decision below," which this Brief rejects. What, then, does the Association of American Law Schools mean by "racial equality"? And which provisions of "the Civil Rights Act of 1964 and subsequent Congressional enactments" committed the nation to the kind of racial equality that the Association has in mind?

More specifically, as a result of the programs described in the preceding pages, *1700 black and 500 Chicano students were admitted to the Fall 1976 entering class of the nation's law [28] schools. They represented 4.9% and 1.3%, respectively, of the total of 43,000 who were admitted.* **If the schools had not taken race into account in making their admission decisions, but had otherwise adhered to the admission criteria they employ, the number of black students would have been reduced to no more than 700 and the number of Chicanos to no more than 300.** It is virtually certain, however, that the reduction would have been much greater and it is not at all unlikely that even this reduced number would have again been reduced by half or more. Thus, the nation's two largest racial minorities, representing nearly 14% of the population, would have had at most a 2.3% representation in the nation's law schools and, more likely, no more than about 1%.


* Out of the 43,000 law students actually admitted in 1976, 1700 blacks = 4.0%, not 4.9%; 500 Chicanos = 1.2%.

** If admissions had been race-neutral, 700 blacks = 1.6%; 300 Chicanos = 0.7%.

These conclusions are drawn from F. Evans, Applications and Admissions to ABA Accredited Law Schools: An Analysis of National Data for the Class Entering in the Fall 1976 (LSAC 1977) (the Evans Report) which studied characteristics of applicants for admission to the 1976 law school class. The length and complexity of that study preclude any effort to set out its findings and supporting data in detail. We shall, however, set forth briefly the data underlying the conclusions stated in the preceding paragraph and summarize several additional findings that further demonstrate the devastating impact that race-blind admission standards would have upon minority enrollment in law schools.

The ineradicable fact is that, as a group, *minorities in the [29] pool of law school applicants achieve dramatically lower LSAT scores and GPAs than whites.* Illustratively, 20% of the white and unidentified applicants, but only 1% of blacks and 4% of Chicanos receive both an LSAT score of 600 or above and a GPA of 3.25 or higher. Similarly, if the combined LSAT/GPA levels are set at 500 and 2.75 respectively, 60% of the white and unidentified candidates would be included but only 11% of the blacks and 23% of the Chicanos. Such disparities exist at all LSAT and GPA levels. Their effect, under a race-blind system, must inevitably be to curtail sharply the number of blacks and Chicanos admitted to law school.

  * In this Brief, the word, "minorities," is confined to blacks and Chicanos; it does not include Asian Americans or any white ethnic groups.

In 1976, there were more than 80,000 applicants for approximately 39,000 seats in the first-year class. As explained above, pp. 14-16, supra, law schools commonly employ an index number combining LSAT and GPA scores as one means of predicting the probable law school performances of applicants. *If all applicants for the 1976 class were to be assigned an index number, computed under two widely-used prediction formulas, the number of blacks in the top 40,000 would have been 370, on one formula, and 410 on the other. The equivalent figures for Chicanos are 225 and 250.*

  * This states the problem in a nutshell. 400/40,000 = 1%. 240/40,000 = 0.6% In the pool of the 40,000 best-qualified applicants, as measured by test scores and college grades, blacks and Chicanos constituted about 1.6%.

Of course, as discussed above, law schools do not select students solely by ''the numbers.'' Although an important factor in determining who will be admitted to law school, they are not the only one. To determine the number of blacks and Chicanos who would have been admitted to law school under a race-blind standard, it is necessary to estimate how they would have fared if non-quantitative predictors of success (letters of recommendation, experience, etc.) and other [30] non-racial criteria affecting admissions (e.g., the school's interest in student diversity) were taken into account. Obviously, this cannot be done. *It seems reasonable to assume, however, that if race were not a factor in the admission process, the applications of minorities would be affected by such factors in precisely the same way as those of whites.*

  * The assumption is reasonable. I would say roughly rather than "precisely."

On that assumption, the Evans Report calculated the acceptance rates for whites for each LSAT-GPA combination. These acceptance rates were then applied to black and Chicano students who had the same combination of LSAT scores and GPAS. On this basis, 700 blacks and 300 Chicanos would have been admitted, a number equal to 40% of the blacks and 60% of the Chicanos actually admitted.

These figures, 700 black and 300 Chicanos, state the outside limit that would have been admitted under a race-blind standard. It is virtually certain, however, that they substantially overstate the number that would actually have enrolled as first-year students. By employing aggregate national acceptance rates, the study in effect treats all law schools as a single school. As the report notes, the implicit assumption of such a procedure is ''that minority candidates [31] would apply to and be willing to attend'' any school. Common sense rebels against any such assumption. Geographical considerations alone are bound to limit a potential applicant's choice of schools. *Moreover, the schools to which these 700 blacks and 300 Chicano students would have been admitted are predominantly the least selective law schools in the country.* Since those schools lack the financial aid resources of the more selective institutions, a large portion of the high percentage of minority students who require financial assistance would, for that reason alone, be unable to attend the only schools to which they could gain admission. *

  Which means that in our top law schools the black and Chicano presence would be much less than the national average of 1—2%.

No one knows with any certainty how far these factors would reduce the number of blacks and Chicanos attending law school below the maximum eligibility figures of 700 and 300, perhaps by 25%, perhaps by 50%, perhaps by more. Since substantially more than half of both black and Chicano applicants were from low-income families, however, and in view of the limitations imposed by geography, a reduction of 50% seems not at all implausible. On that basis, the number of black and Chicano students enrolled in the first-year class in 1976 would have been approximately 1% of the entering class, roughly the same as in 1964. The progress of a decade would have been wiped out.

  The maximum eligibility figures reduce the black/Chicano share under race-neutral admissions from about 5% to about 2%; or about 1%, with an additional 50% cut. A parallel reduction, though less drastic, was estimated in a study of 1991 law school applicants. Under race-neutral admissions based solely on LSATs and GPAs, the proportion of "underrepresented" minorities (black, Hispanic and Native Americans) admitted would have fallen from 12% to 4.5—7%. (L. Wightman, "The Threat to Diversity in Legal Education," NYU Law Review 72:1, April 1997)

The drastic impact of an affirmance is also demonstrated by the Evans Report's findings that under a race-blind admission standard twelve of the nation's most selective law schools, which during 1975 had total minority enrollment of approximately 1,250, nearly 15% of the national total, would have [32] enrolled no ''more than a handful of minority students. Yet, these are the schools from which, over the years, many of the leaders of the bar and the nation have been drawn. They are, moreover, the wealthiest institutions and, therefore, those with the greatest resources for the financial aids so sorely needed by many minority students.

The importance of this case to the future of *minority* student enrollment in the law schools of this country cannot be overstated. **If the schools are prohibited from using race as a factor in admissions, minority enrollment will plummet** and the ***hopes of a generation schooled in the traditions of equal opportunity enunciated by Brown will be dashed.*** This becomes even clearer when one examines the possible alternatives that have been suggested and realizes that in fact they offer no realistic prospect of substantial minority enrollments.


* I.e., black and Chicano; Asian and other Hispanic not counted.

** I agree that, under a race-neutral policy, the law school enrollment of blacks and Chicanos would fall substantially, since the preference in their behalf has been great. There are, of course, many minorities (e.g., white ethnic, religious, political, regional) who do not ordinarily receive preferential treatment, whose enrollment would presumably increase.

*** The rule established by the Brown decision is that students may not be excluded from the public school classroom because of race. The Court did not interpret the Constitution to forbid exclusion based on lack of academic ability or preparation. The equal opportunity decreed was an equal chance despite individual differences in race, not an equal chance despite individual differences in ability.

3. No Reasonable Alternatives To Special Admissions Programs
Have Been Proposed

Arguments have been made from time to time, most notably by the court below and by Justice Douglas dissenting in DeFunis, that substantial minority enrollments in professional schools can be maintained without using *racial admission criteria.* **If there are means by which that can be done, they are not known to the law schools. We do know, however, that none of those that have been suggested would work. None would permit the enrollment of minority students in numbers even close to those that now exist and some would, in addition, have a destructive effect upon the quality of legal education and of the profession, requiring law schools to admit students—white and black—who are less qualified to study and practice law than students now being admitted.**


* This phrase is a euphemism for "racial preference" or "racial discrimination," terms that the Brief would doubtless employ if the unequal treatment at issue favored whites at the expense of blacks and Chicanos.

** If the purpose of the alternative measures discussed in this section were to achieve a racial result, they would be as dubious as direct preference. It is a settled principle that a policy race-neutral on its face is nevertheless discriminatory if it serves a discriminatory purpose. This is immediately recognized when the victims are nonwhite. Suppose, for example, that a college has a race-blind application process, but takes applicants only from suburban high schools, in order to increase the ratio of white to nonwhite students. No one would hesitate to call this racial discrimination. If white law school applicants have a right, under the civil rights laws or the constitution, not to be racially discriminated against, that right would be violated by an admissions process which, though race-blind in its consideration of individual applicants, was designed to increase the enrollment of nonwhites relative to whites.

The Association's Brief is for the most part forthright, sober and reasonable concerning the obstacles to achieving, without racial preference in the consideration of individual applicants, the level of black and Chicano enrollment it seeks. The Brief fails, however, to note the additional defect, that racially neutral means become discriminatory if serving discriminatory ends.

[33] *The court below suggested that universities ''might increase minority enrollment by instituting aggressive programs to identify, recruit, and provide remedial schooling for disadvantaged students of all races. . . ."* But as the history recited at pp. 22-27, supra, demonstrates, law schools have already directed precisely such efforts toward minority students. An expansion of these efforts to other groups would not *increase the number of minority applicants,* but it would enlarge the number of whites in competition with them. Recruitment efforts directed toward minorities have been sufficiently successful so that for the past several years the ratio of law school applicants to baccalaureate degrees granted has been the same for blacks and Chicanos as for whites. There can be no doubt that this growth in the number of minority applicants is directly related to the existence of the special admissions programs. For without these programs, it would have been pointless for most of the minority applicants, including most of those admitted, to have applied to law school at all.


* The Brief treats the alternatives suggested by the California Supreme Court and others as racially neutral policies for the accomplishment of racial purposes. However, race-neutral alternatives may be suggested not as invitations to indirect discrimination, but as bona fide responses to disadvantage and inequities, regardless of race.

For example, "remedial schooling" in, say, summer academies for grade and high school "disadvantaged students of all races" would help participants to improve their academic skills and preparation, making them more competitive for selective college and later for professional school admission. Universities might cooperate with state and federal authorities to establish such academies in districts where public education is inadequate. Such a measure would not guarantee any particular quota of black and Chicano law students, but it would deal directly with the deficits in individual ability that spur the resort to preferential treatment.

A whole family of other suggestions for maintaining minority enrollments, while avoiding the use of race as an admission factor, depend upon reducing the influence of the quantitative predictors in the admissions process. These range from Justice Douglas' extreme suggestion that the LSAT be abandoned to more moderate proposals that would have the schools place greater reliance on personal [34] interviews, recommendations, and the like as a way of predicting academic performance and potential contribution to the society. *Some of these suggestions rest upon the assumption that the LSAT is ''culturally biased,'' i.e., that it underpredicts the probable academic performance of minority applicants. Five separate studies conducted over the past half dozen years have found that assumption is wrong.* In the light of these findings, to call for abolition of the LSAT amounts to a demand that the messenger who brings the bad news be shot or, more accurately, that some other messenger who will bring better tidings be substituted.


* Over the years, many affirmative action proponents have contended that the LSATs and comparable tests were biased against blacks and Hispanics. However, the research is clear that, instead of underpredicting, the tests overpredict the academic performance of these students, thus actually favoring them.

For both majority and minority students, the combination of LSAT and GPA, with all their limitations, is the best available predictor of academic achievement, especially at the levels of difference which separate majority and minority applicants in nearly all law schools. If they are, for that reason, to be given weight in the admission process, minority students' nonquantitative predictors of academic performance (such as letters of recommendation) would, on the average, have to be a good deal more favorable than those of whites if the former are to compete successfully for admission. But there is not the slightest reason to suppose that they are; indeed, there is no reason to suppose that such subjective factors are distributed on other than a random basis among applicants of different races. There is, accordingly, no reason to suppose that greater emphasis upon ''soft data'' would lead to admission of any but a very small number of minority applicants.

[35] The same is true with respect to the suggestion that schools should, in the interest of "flexibility'' place greater emphasis on factors other than predicted academic performance. Whatever may be the wisdom or unwisdom of such a proposal, there is not a shred of evidence that reliance on any of the non-academic factors suggested would, unless used as a covert method of applying a racial preference, greatly enlarge the number of minority admissions. Some greater number of minority applicants might be admitted than if purely academic predictors of success were to be employed, but it is by no means obvious that that would be so. It is entirely possible that an admissions process employing standards as flexible as those suggested by the court below would disadvantage minority students, favoring instead those applicants who had letters of recommendation from influential persons, or who were most similar to law school professors and admissions office professionals. And the cost of greatly diminishing the role of the best predictors of academic competence would be so intolerable as inevitably to cause abandonment of the endeavor.

We can put aside quickly the suggestion of the court below that professional schools specifically rely more on ''matters relating to the needs of the profession and society, such as an applicant's professional goals'' as a method of increasing the number of minority lawyers. If "the needs of the profession and society'' are defined, as we believe they must be, to include a need for more minority lawyers, the alternative is no alternative at all but a restatement of precisely the admission program which the court declared unconstitutional. Similarly, if ''professional goals'' are defined to include an intention specifically to serve minority communities, their use as an admissions criterion may be subject to the same [36] attack as the use of the race of applicants in the admissions process. In any event, reliance on the stated goals of applicants for admission is pursuit of a chimera: applicants will inevitably say that which they believe will secure admittance and there is often—we think usually—little relationship between even the sincerely expressed goals of an applicant not yet in school and the professional career eventually pursued.

We need not urge these considerations because there is a far greater difficulty. If the schools are to admit students upon the basis of their stated professional goals, they must inevitably evaluate and rate these goals comparatively. Is it better, for example, to train a lawyer who says he wants to attack corporations or one who seeks to defend them? Is a practice in the field of securities regulation more or less valuable to society than the representation of labor unions? Choices among applicants on any such basis would thrust the schools into an unwanted and unauthorized role of social arbiter. They can properly assess the community's overall need for lawyers; they should not be placed in the position of evaluating those objectives.

Another, superficially more plausible, means that has been suggested for maintaining minority enrollment is to convert special admissions programs into programs for the economically disadvantaged. The underlying theory seems to be that a substantial number of minority group members will gain admission to law schools under such a program because minorities are disproportionately included among the economically disadvantaged. Here again, the theory depends upon ignoring the facts. Although racial minorities are disproportionately included among the economically disadvantaged, approximately two-thirds of all disadvantaged families are white. Even if we were to assume that [37] disadvantaged minorities would apply for admission to law school in proportion to their numbers, the size of special admissions programs would have to be trebled to maintain the present representation of minorities in law schools. A school that now specially admits 10% minorities would be required to extend its program to 30% of the class. But there is no reason to believe that there would be anything like that proportion of minority applicants presenting credentials equal to those of white applicants with whom they would be in competition.

The best data now available as to the probable composition of any such disadvantaged special admissions program suggest that, among the present pool of applicants, over 90% of those who would be admitted under such a program would be neither black nor Chicano. And even this necessarily understates the problem. However schools advertise their special admissions programs, it is understood that these programs are essentially limited to members of minority groups. But once it is learned that an applicant of any race possessing academic credentials substantially lower than those ordinarily required for admission can gain admission if the applicant shows economic disadvantage, it can be predicted with certainty that two things will happen: (i) there will be a substantial number of unverified and unverifiable claims of childhood economic disadvantage and (ii) there will be a large number of potential applicants who now do not apply who will seek to take advantage of the program.

[38] Moreover, one effect of a racially neutral disadvantaged program, as distinct from a minority program, would be to eliminate those blacks and other minorities who now are able to gain admission but who could not reasonably claim a disadvantage other than race. Among minorities, as among whites, applicants who come from low-income families have, in general, substantially lower LSAT scores and GPAs than those who do not. Many of these latter applicants constitute the most promising of those admitted under the present special admissions programs. Yet it is just these applicants who will be denied admission under a racially neutral program for the disadvantaged.

There is, regrettably, one final alternative still to be considered. The suggestion that professional schools abandon special minority admissions programs in favor of programs for the disadvantaged or that they seek to maintain minority enrollments by reducing reliance on quantitative predictors of academic performance may rest upon the premise that either of these alternatives would permit race to be taken into account sub rosa. We do not imply that the court below meant to invite such an interpretation of those suggestions, but there are others who have suggested that in the effort to achieve racial equality "we cannot afford complete openness and frankness on the part of the legislature, executive, or judiciary.'' Kaplan, Equal Justice in an Unequal World: Equality for the Negro-The Problem 0f Special Treatment, 61 NW. U. L. Rev. 361, 410 (1966). It need hardly be said in response that a constitutional principle designed to be flouted should not be imposed on schools dedicated to teaching the role of law in our society.


Section I of our Brief has demonstrated that special admissions programs are indispensable if more than a minuscule number of minority group members are to be represented within the student bodies of American law schools. The widespread adoption of such programs reflects the *consensus of law faculties that it would be intolerable to have such minimal minority representation* in educational institutions that play so important a role in the life of the nation. In this section of the Brief, we identify the reasons that have led to that consensus, and we show that the means relied upon are reasonable and effective.

  * I.e., "it would be intolerable to have" law school student bodies that are only 1–2% black and Chicano. Have the law faculties counted their Polish-, Italian-, Portuguese-Russian-, Ukrainian-, Serb-, Arab-, Pakistani-, Vietnamese-, Korean-, Filipino-American et al. students to determine whether these numbers are also intolerably small?

We observe preliminarily that the justification for special admissions programs cannot be considered in isolation from *the historical and social conditions that have created the need for them.* The decisions of this Court—from Dred Scott v. Sanford, 19 How. 393 (1857) to Strauder v. West Virginia, 100 U.S. 303 (1880) to Brown v. Board of Education, 347U.S. 483 (1954) and beyond—amply record the efforts to exclude racial minorities from full participation in American life. Until very recently, racial minorities were almost entirely foreclosed from a role in the nation's public life, not only by excluding them from elective and appointive office in national, state, and local government but, in many sections of the country, by denying them the fundamental rights and obligations of citizenship, including the franchise and the opportunity to serve on grand and petit juries. Their children were required to attend segregated and generally inferior schools. They often received lower levels of governmental services than whites and some services were at times simply withheld from them. In the private sector, minorities fared no better. By custom, and occasionally by law, they were relegated to the least desirable employment, to jobs that paid [40] substantially less than those open to whites and that offered neither an opportunity for advancement nor a chance to participate in the many important decisions made in the private sector. The housing available to them displayed a similar pattern. Life in the ghetto and the barrio not only deprived minorities of contact with the dominant society, it subjected them to crowding, inadequate public services, and often to housing that failed to meet the minimal standards of our society. The unpleasant but inescapable truth is that, the Constitution notwithstanding, there existed in the United States a virtual caste system.


* The problem, as this Brief has made clear, is the low test scores and college grades of black and Chicano applicants to law school in 1976. If their scores and grades were competitive, the two groups could be admitted, without preference, at the same rate as other groups. The alleged cause of the problem is the racial discrimination against blacks and Chicanos living in this country during past generations.

The underlying argument is an appeal to justice: that law schools must be allowed to grant preferential treatment to counteract the results of past injustice. Now, no one denies the existence of past injustice. The disputes concern its present effects and the appropriate remedies. If law schools are to be ministers of justice, there must be good reason to believe that their analysis is valid and their remedy just. They (and the Brief in their behalf) need to ask and answer some crucial questions:

1. Central to the past injustice was racial discrimination: unequal treatment that favors some people over others based on their race or ethnicity. Its former practice by educational institutions, including law schools, we now condemn. But if racial discrimination is unjust, how can it be available as a remedy for injustice?

2. The state and federal anti-discrimination laws of the 1950s and '60s guarantee to every person the right not to be discriminated against on account of race or ethnicity in schools supported by the Federal government. Under this guarantee, whites and nonwhites have an equal right not to be subjected to racial discrimination. Should this guarantee be withdrawn from whites, clearing the way for their nonwhite competitors to receive preferential treatment?

It might be argued: that racial discrimination, though ordinarily wrong, is sometimes just; that a strong presumption of harmfulness may be overcome by great benefit in certain circumstances; and that counteracting the effects of past discrimination is such a benefit.

3. If one assumes that discrimination against earlier generations is the cause of inferior academic performance in later generations and that the remedy is preferential treatment, who should qualify? All members of any racial or ethnic group that has been discriminated against in the United States? Only members of nonwhite groups? Only members of "underrepresented" groups? Only members of such groups who are not immigrants or the children of immigrants? Should all who qualify for preference get the same boost, or should those whose ancestors suffered more discrimination get more points? Who should determine the answers to these questions: Each university? Each profession? The courts? The state legislatures? The Congress?

4. Is the assumption true, that discrimination against earlier generations is the cause of inferior academic performance in later generations? What, exactly, is the view of the authors of this Brief? Do they consider historical discrimination wholly or mostly or partly or slightly responsible for the present gap in academic skills between blacks or Chicanos and whites? Whatever their answer, does it rest on solid, impartial research? If they believe that American discrimination between, say, 1850 and 1950 against Chicanos produced below-average skills for the 1976 generation, why did not the simultaneous and equally severe discrimination against Chinese and Japanese have similar results? The percentage of Asian-American high-school graduates who qualify for the University of California in statewide competition is consistently greater than twice the percentage of whites. Would the Brief's authors attribute this impressive gap to past discrimination against whites?

Questions like these should be faced and answered by those who, in the name of a higher justice, would set aside the right not to be racially discriminated against.

The legacy of that history is the reality we now confront. Despite the important beginnings that have been made since enactment of the Civil Rights Act of 1964, *racial minorities are not—and are not close to being—full participants in American life.* By every social indicator they continue to constitute an underclass in our society. Their income, life expectancies, and educational attainments are lower than those of whites. Finally, and of more immediate concern in this case, racial minorities constitute approximately 17% of the total population but, as of the 1970 census, barely more than 1.9% of the membership of the bar.

  * Are all racial minority groups not "full participants in American life," or some only? All members of some minority groups, or some members only of some groups? Some members of the majority? What level of "income, life expectanc[y] and educational attainments" makes a person a full participant?

The nation is now committed to eliminating *this legacy of racism.* **We have undertaken to remove the vestiges of caste from our society, not only by improving the conditions of life among historically disadvantaged minorities, but also by creating a racially integrated society.** The question presented in this case is whether, now that we have made that commitment, the Constitution should be construed to forbid measures that are essential to its performance.


*According to the Brief, not only the lower college grades and test scores of black and Chicano law school applicants but also the lower "income, life expectancies and educational attainments" of our "historically disadvantaged minorities" are part of the "legacy of racism." At the time the Bakke case was argued, did the American public ascribe these inequalities primarily to racism? Not so far as I know.

** There is a national commitment to improve "the conditions of life" of the disadvantaged, but it applies regardless of race. The commitment to a "racially integrated society" is best defined as a commitment that every person has the right not to be excluded because of race, but no racial or ethnic group has the right to any particular level of achievement. To the fulfillment of these commitments, properly defined, racial preference in university admissions is not "essential" but inimical.

There are those who argue that special admissions programs and other measures designed to hasten the integration [41] of our society are unwarranted precisely because *the nation's commitment to racial equality* is so recent. Now that the historic barriers to equality have been removed, they maintain, *the members of minority groups may be expected over time to share equally with other Americans in the full range of opportunities that the nation offers to its citizens.* The effects of decades, even centuries, of exclusion cannot be overcome in a few years. Thus, they assert, even though the present generation of minority students may not be able *to compete successfully for admission to professional schools,* there is no reason to suppose that subsequent generations, having received a more nearly equal primary and secondary education, will not be able to do so.


* The Brief speaks repeatedly of an American "commitment to racial equality" that remains unfulfilled. What is it that we are supposed to have promised but not yet provided? That "the members of minority groups" are "to share equally with other Americans in the full range of opportunities that the nation offers to its citizens," e.g., "to compete successfully for admission to professional schools"?

One could interpret the kind of "racial equality" suggested by this language as racial nondiscrimination, that "to share equally" or "to compete successfully" simply means that an equally qualified applicant will not be rejected because of race. But this kind of racial equality was the crux of the California Supreme Court's decision, which the Brief hopes to reverse.

I suspect that by "racial equality" the Brief means equal racial achievement, based ultimately on equal racial ability. And that while substantial gaps in racial ability persist, black and Chicano rates of selection for opportunities in education and employment will need the boost of racial preference. Equal racial achievement would be indicated by equality in such measures as "income, life expectancies and educational attainments"; equal racial ability, by equality in measures like grades and test scores.

Thus defined, when and where was "racial equality" promised? In what provisions of the Constitution or the Declaration of Independence? In what laws? Thus far, the Brief (at its page 27) has named "the Civil Rights Act of 1964 and subsequent Congressional enactments" as the locus of the commitment, but without quoting any specifics.

I replied there that the Act did indeed mandate "racial equality," in the form of no difference in treatment based on race or ethnicity. But racial equality in this sense the Brief firmly opposes. The state and federal civil rights statutes of the 1950s and '60s were antidiscrimination laws. The civil rights they granted were the rights not to be discriminated against on certain bases (including race and ethnicity) in certain areas of life (including education, employment, public services, public accommodations, voting and housing).

Quite different laws would be necessary to mandate or promise the kind of "racial equality" espoused by the Brief: Current civil rights—that individuals not be discriminated against based on race or ethnicity—would be reaffirmed for some racial and ethnic groups but repealed for others. New civil rights would entitle racial and ethnic groups to equal rates of success in accessing opportunities.

To illustrate the contrast between the two concepts of racial equality, and the two kinds of civil rights they require, I pair two actual with two imaginary clauses. The actual provisions, in quotations, are well known sections of the Civil Rights Act of 1964. The imaginary provisions, in brackets, would mandate the kind of racial equality asserted by the Brief.

"SEC. 601. No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." #

[The percentage of any racial or ethnic group admitted to any program or activity receiving Federal financial assistance shall approximate to the extent feasible the percentage of qualified applicants from each group, notwithstanding group differences in individual fitness.] ##

"SEC. 703. (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. . ."

[The percentage of any racial or ethnic group hired shall approximate to the extent feasible the percentage of qualified applicants from each group, notwithstanding group differences in individual merit; likewise, the percentage fired from each group shall approximate the percentage of employees from each group.]

# Whether Sec. 601 had been violated by the medical school admissions process was a question in the Bakke case, not addressed in this Brief.

## The 1976 law school admissions data reported in the Brief do not include the percentage of actual admissions by race. But the Wightman report on 1991 law school admissions shows an acceptance rate of 26% for white, Asian and black applications and 27% for Hispanic applications. These almost identical acceptance rates occurred despite substantial group inequality in applicant grades and test scores.

We share the hopes of these critics. Indeed, it is because we believe that *the commitment to racial equality in all spheres of American life* will eventually eliminate the need for special admissions programs that, throughout this Brief, we stress their transient nature. But the fact that the programs may some day be unnecessary does not mean that they are not necessary now. The United States faces *no task more imperative than fulfilling its promise of racial equality.* If that promise is to be met, and if those to whom the promise has been made are to accept that it has been made in good faith, we must approach it with a degree of urgency greater than that conveyed by the prediction that equality will come some day.


* Without any evidence to support the assertion, and despite contrary evidence that is readily available, the Association of American Law Schools declares the existence of a national commitment to "racial equality," defined as equal racial achievement.

How does one explain this emphatic adherence to an extravagant conclusion for which no basis is provided? In fairness to the Brief, one can point to judicial and bureaucratic steps that had been taken toward the commitment it embraces. The Supreme Court, in Griggs v. Duke Power Co. (1971), barred employment criteria, such as test scores or education requirements, that cause minority applicants to be hired at a lower rate than white applicants, unless the criteria are justified by business necessity. That same year the Office of Federal Contract Compliance Programs (OFCCP) issued Revised Order No. 4, which required would-be federal contractors to establish "affirmative action programs." These were to include analyses of those areas in which racial minorities were "underutilized" as compared to their numbers in the labor force of the vicinity, and goals and timetables for correcting the deficiencies. These steps, moving in the Brief's direction, but far short of the national commitment it claims, are not mentioned in its arguments.

The gratuitous assumption that the commitment exists is matched by the equally unwarranted assumption that such a commitment is desirable. The Brief submits for the reader's consideration several reasons for preferential admissions, but no reasons for undertaking a national commitment to equal racial achievement.

Any effort to achieve racial equality must, if it is to succeed, begin with an awareness that, in the United States today, race is a socially significant characteristic. Race, in other words, is not merely a superficial aspect of "deeper" social problems such as poverty or inadequate education. It is integral to those problems. Many Americans, but especially those who are members of the groups that are the immediate beneficiaries of special admissions programs, live in [42] communities and belong to organizations that are defined in racial and ethnic terms. The direction of their loyalties and their sympathies are significantly determined by their racial and ethnic identifications. Whether, or to what extent, that is desirable is currently the subject of much debate. Such identification may, as some contend, lead only to divisiveness, or, as others maintain, it may foster a sense of belonging and a pride in cultural origins. But whether it is good or bad, it is a reality with which law and the institutions of American life must contend.

In these circumstances, the question whether racial minorities are substantially represented in law school classes and at the bar assumes crucial importance. Gross underrepresentation of these groups has consequences quite different from those that would result from, say, gross underrepresentation of persons with one blue and one green eye. Individuals who share that characteristic have not historically been segregated by our society, nor otherwise subjected to generations of invidious discrimination. Governmental decisions do not affect them differently than they affect other persons and, conversely, their views on issues of public policy are likely to be distributed in the same way as in the general population. In each of these respects, individuals who share only a socially irrelevant characteristic differ from the members of racial minorities. And, as we now seek to demonstrate, it is precisely because of these differences that gross underrepresentation of the latter in law schools and at the bar is a pressing social problem.

A. The Need For More Minority Lawyers Is Critical

The most important reason for special admissions programs in the law schools is, quite simply, that there is a critical need for more minority lawyers. The 1970 census, as noted above, reported that racial minorities, which constitute [43] approximately 17% of the population, represented barely more than 1.9% of the bar. However dramatic, this gross statistic does not begin to convey the desperate shortage of minority lawyers. A 1968 survey revealed that before special admissions programs began to have an effect there were, in the entire South, only 506 black lawyers. In Mississippi, where the black population was nearly 1,000,000, there were 9 practicing black lawyers. In Alabama, with an even larger population of blacks, there were but 20 and in Georgia only 34.

In drawing attention to this data, *we do not suggest that any of the compelling reasons for increasing minority representation at the bar that are detailed below require representation proportional to the relative size of the minority.* Opponents of special admissions programs have at times sought to characterize the programs as an attempt to achieve such representation among lawyers, an attempt that would, they then contend, necessarily imply maximum quotas for each racial and ethnic group in the profession. Stated bluntly, this objection is simply a "red herring." The data set forth in the preceding paragraph and elsewhere in this Brief demonstrate that neither now nor in the foreseeable future can there be any question of proportional representation in the bar. The serious question is whether publicly-supported schools can take steps to assure that the representation of minorities at the bar is to be more than negligible. Reasons of compelling social importance, to which we now turn, require an affirmative answer to that question.

  * Is this section of the Brief by the same author as the previous section? It is not the "opponents of special admissions programs" who insist on a national commitment to racial equality of achievement, but (some, at least, of) the authors of this Brief. If racial equality of achievement does not imply proportional representation of racial minorities in the legal profession, what does it imply?

1. The Public Role of the Legal Profession

Nearly 150 years ago, de Toqueville described the crucial [44] role of the legal profession in the United States. Lawyers, he wrote, "are naturally called upon to occupy most of the pub-lic stations. They fill the legislative assemblies and they conduct the administration; they consequently exercise a powerful influence upon the formation of the law, and upon its execution." 1 A. de Tocqueville, Democracy in America 329-30 (Schocken ed. 1961). Time has added prescience to the keenness of these observations. Even more than in de Tocqueville's time lawyers now "form the highest political class'' in the nation. No other professional group, no other single class of citizens, exercises or comes close to exercising as pervasive an influence upon the operations of government.

Of the nearly 400,000 lawyers in the United States today, approximately 50,000 are employed by federal, state, and local governments. They serve as legislators and as staff to legislatures; as policy makers, administrators, and litigators within the executive departments; and as judges and staff to the judicial system. Nor is the public role of lawyers confined to the public offices they hold. Acting on behalf of private interests, they exert a powerful influence on public policy, serving not only as intermediaries between citizens and their governments, but also as the architects of law reform aimed at making government responsive to the needs and interests of the citizenry. No less important, if often less fully appreciated, lawyers interpret the actions of government to their clients and their communities, and thereby serve a crucial role in achieving public understanding and acceptance of those actions.

The public influence of lawyers extends far beyond their formal roles in government or in representing clients in their dealings with government. Despite the importance of government in the modern world, the direction of our society and the quality of our national life depend not only, and [45] perhaps not even most importantly, upon the decisions of government, but also upon the myriad decisions made in the private sector. Here too the influence of lawyers is pervasive. Lawyers frequently serve as members of the governing boards, as well as advisors to, private foundations, educational and charitable institutions and corporations. They play an important role in the labor movement. They are often in positions of leadership in the extraordinary variety of community and other organizations that play so vital a role in American life. In all these varied roles, lawyers are influential molders of public policy .

*Because of the public importance of the legal profession, there is an imperative need that it include qualified representatives of the diverse groups that constitute our society.* Since pre-Revolutionary times, Americans have been committed to the democratic ideal that government derives legitimacy from the consent of the governed, an ideal that we have historically understood to require the active and continuous participation of the governed in their government, either directly or by representation. For this reason, the frequency with which lawyers are elected to public office alone suggests the importance of increasing minority membership in the bar. But as the preceding paragraphs demonstrate, representation does not depend solely upon elected representatives.


* For the purposes of this debate, let us agree to the public importance of lawyers and to their representative function, in and out of government, in behalf of all sorts of persons, institutions and groups. But should those groups include racial and ethnic groups? If they should, what happens to the principle of racial nondiscrimination? The Brief does not urge the training of white lawyers to represent whites in pursuit of white interests. Individuals, neighborhoods and occupational groups that are economically, socially or politically weak may well need greater lawyerly assistance, but is it necessary to categorize people or to recruit their attorneys by race? Why should a neighborhood, with residents of various racial or ethnic backgrounds, define its interests in racial or ethnic terms? Let governmental help or protection be sought, with legal counsel if need be, on the merits of the issue, not as a racial or ethnic concession.

In a society as complex as ours, representation throughout the vast network of public and private institutions which shape our national life is required to achieve the active and continuous participation in the governance of society upon which consent is founded. Decisions significantly affecting the lives of minority group members are made daily by zoning boards of appeal, transportation departments, regu-latory agencies—everywhere that decisions are made affecting the lives of Americans. At times, perhaps often, [46] these decisions will have a different impact upon minority communities than upon the white community. A minority presence in the decision-making process increases the likelihood that those differences will be recognized and taken into account. Similarly, a minority presence in Wall Street law firms, corporate law departments, labor union legal staffs, law faculties, and the boards of foundations and community organizations—indeed, in all the institutions in which the influence of lawyers is felt—is likely to alter the behavior of those institutions in a host of subtle and perhaps not so subtle ways, making them more responsive to the varying needs of minority communities. No less significantly, the presence of minorities in these institutions provides evidence to the members of minority groups that these important centers of American life are open to their members, evidence that may be expected to have an important influence upon their acceptance of the institutional framework of American society.

A single illustration may help to demonstrate *the urgency of increasing minority representation at the bar.* **One of the harshest indicators of the economic and social conditions of America's racial minorities is the fact that their members are disproportionately both the victims and the perpetrators of reported crimes.** Nationwide, 28% of all persons arrested are members of a racial minority. ***Unless the number of minority lawyers is raised beyond that which existed prior to the commencement of special admissions programs and which will continue in the absence of such programs, the consequence must be a system of criminal justice in which many of the defendants are black or Chicano but in which [47] nearly all judges, prosecutors, and even defense counsel are white.*** ****Given the history of racial injustice in the United States, it is not to be expected that such a system can maintain the respect and confidence of the minority communities that is so essential to its mission.**** We do not, of course, suggest that the fairness and credibility of the criminal justice system depend upon minorities or non-minorities being prosecuted, defended, or judged by members of their own groups. *****But we do maintain that the visible presence of minorities as prosecutors, defense counsel, and judges is essential to the appearance of justice, as well as to its reality.*****


* If the state seeks to "increas[e] minority representation at the bar," it must identify persons by race and adopt policies designed to produce racial results. This requires either the abandonment of the nondiscrimination rule, or an exception to that principle. If abandonment, the Brief should describe a gain commensurate with the harm. If an exception, we need to know how the exception is to be limited, so that the principle is not undermined.

** This is not true of all American racial minorities, but it is true of blacks, American Indians and Latinos.

** I agree that the presence of more blacks and Latinos as lawyers and judges would help to deflect charges that the criminal justice system is unfair to blacks and Latinos. I agree, further, that the number of black and Latino lawyers will increase faster via preferential law school admission than via my proposal of summer grade and high-school academies for the disadvantaged regardless of race.

**** I agree that the criminal justice system needs the confidence of blacks and Latinos that they are not being discriminated against. Racial impartiality is not easy to maintain: it requires consciousness, discipline and practice until it becomes habitual. I question whether a system that welcomes racial discrimination in the training and appointment of lawyers and judges will suddenly become or seem racially impartial when administering the law. Blacks and Latinos know that the nondiscrimination rule is ignored when the state deals with students. Why should they not suspect that it is also ignored when the state deals with victims, suspects, witnesses and juries?

***** First things first. In a multiracial, multiethnic society, real justice requires racial and ethnic impartiality. If racial nondiscrimination rules, the judicial process will seem just, even to groups who provide many perpetrators and few officials. If racial favoritism rules, the judicial process will not seem just to anyone, regardless of the percentage of lawyers and judges allotted to each group.

The importance of a visible, and therefore a substantial, minority presence is obviously not limited to the criminal justice system. It exists wherever decisions are made that affect minorities, and that, as we have suggested, means that it exists wherever decisions are made affecting Americans. On the other hand, this is not the objective of special admissions since, of course, it is neither possible nor necessary to have minorities represented wherever decisions affecting minorities are made. But substantially increased numbers of minority lawyers will inevitably have the effect of rendering the decision-making processes of the system as a whole more cognizant of the distinctive interests of minorities.

2. Serving the Legal Needs of Minority Communities

Increasing the number of minority lawyers is necessary also to serve adequately the legal needs of the members of minority communities. In stating the existence of this need, we are mindful of the ideal eloquently expressed by Justice Douglas in his DeFunis dissent, that ''[t]he purpose of [a state university] cannot be to produce Black lawyers for Blacks, Polish lawyers for Poles, Jewish Iawyers for Jews, Irish lawyers for the Irish. It should be to produce good lawyers for Americans." 416 U.S. at 342. This is a compelling [48] social and political ideal. Constitutional law ought not, however, in the single-minded pursuit of that ideal, ignore the existence of other values or the reality of the society in which we live. Although it would be absurd to suppose that only a Jewish lawyer can adequately represent a Jew or that only a black lawyer can adequately represent a black, it is true nonetheless that many Jews and many blacks (like many persons of other backgrounds} would prefer to be represented by lawyers with an ethnic and racial identity similar to their own. Nor should the existence of these preferences occasion surprise. Beyond the natural affinity which many persons feel with persons of a common cultural background, the history and in some measure the present reality of our society afford the members of some racial and ethnic minorities ample reason to perceive the dominant society as alien and to regard it with suspicion and even hostility. When the need for legal assistance arises, often at a time of anxiety or crisis, they may feel the need to turn to a lawyer whom they trust to understand and to empathize with their situation. Law schools need not endorse these feelings to recognize their existence and the importance of providing some outlet for them.

In a society in which racial and ethnic identities play an important role in everyday life, moreover, a lawyer's racial or ethnic background may have an important bearing on his ability to serve his client. Many of the tasks that lawyers perform for their clients require an understanding of the social context in which the client's problem arises. A brilliant and effective tax specialist is, for that reason, unlikely to be an effective representative in a labor negotiation. The reason is not simply that he is unfamiliar with the law of labor relations, it is also and perhaps primarily that he lacks an understanding of the practical problems of labor relations, of the customs that have developed in dealing with those problems, [49] and of the style and manners of collective bargaining. To the extent that racial and ethnic groups form distinctive subcultures within our society, the representation of some of their members in connection with some of their legal needs may involve similar difficulties for the ''outsider.'' The ability to ''speak the language'' of the client, to understand his perception of his problem, and to deal with others in the community on his behalf are qualities essential to being a ''good lawyer.'' These qualifications are more likely to be found among lawyers who share the client's racial or ethnic identity, at least to the extent that the client's life is bound up in a community defined in these terms.

  I agree that racial or ethnic discrimination in a person's choice of a lawyer is often natural and sometimes reasonable. The laws permit it and are wise to do so. But should legal education justify and encourage it? Should the legal and moral authority of the nondiscrimination principle in those areas where it rightfully applies be undermined in order to accommodate the desire of clients to discriminate in their choice of attorneys?

B. A Racially Diverse Student Body Is Important For A Sound Legal Education

At least since the time of Plato it has been understood that *those who govern require an understanding of the governed.* The need is common to all forms of government, but in a democracy it is critical. In the United States, as we have previously observed, lawyers play a crucial role in the governance of the nation. Successful performance of that role requires an understanding of the diverse elements that comprise our pluralistic society. The need for such an understanding is hardly less important to successful performance of the lawyer's role in the representation of private interests.


* Is this "understanding" to be gained by treating fellow law students as typical of "the governed"? The average citizen of the nation in whose governance "lawyers play a crucial role" is less educated and much less skilled in abstract reasoning than lawyers are. To help future lawyers understand their future clients, should law schools lower their standards to admit substantial quotas of these average citizens? Against preferential treatment on this basis there is, of course, no legal or constitutional obstacle.

For these reasons, a major objective of legal education is to assist students in acquiring an understanding of the social environment within which legal decisions are made. It is inevitable that this understanding, so far as it can be gained in an academic setting, will be acquired largely from books. To a substantial degree, however, it is also acquired by interaction among students, through exposure to differing points of view in class discussion and in less formal settings. The importance of these interactions to the education of lawyers [50] was recognized by this Court more than a quarter century ago in Sweatt v. Painter, 339 U.S. 629, 634 (1950):


''[A]lthough the law is a highly learned profession,'' Mr. Chief Justice Vinson wrote for the Court, "we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned."

The Court's concern in Sweatt was, of course, the need of black law students to interact with their white counterparts. But there is no less need for whites to interact with blacks.

The importance that the law faculties attach to achieving diversity within their student bodies is revealed in the admission practices described earlier. Of course, with respect to many of the characteristics that are socially significant in our pluralistic society, substantial heterogeneity is achieved without deviating from admission criteria concerned only with predicting the level of an applicant's academic performance. Thus, even though on the average white applicants from low income families have lower LSAT scores and GPAs than those from more affluent families, substantial numbers do qualify for admission, without special consideration, at schools which have varying admissions standards. To the extent that diversity is not achieved in this way, the schools commonly rely upon non-academic factors to achieve it, always subject to the requirement that an applicant's predicted level of performance exceeds a school's minimum standards. Thus, some schools give preference to students from geographical areas that otherwise would not [51] be represented in their student bodies. Many, perhaps most, are likely to prefer a student who has an uncommon background—e.g., substantial experience in business or law enforcement, or perhaps advanced training in economics or psychology—to others who have scored higher on predictors of academic success. The admission decision in all such cases rests upon the judgment of schools that the existence of this diversity will contribute to the education of other students in the class.

  Unlike race and ethnicity, none of the diverse backgrounds named in this paragraph—family income, place of residence, area of past experience or advanced training—is barred by statutory or constitutional law as a basis for unequal treatment.

In view of the importance of race in American life and the importance that it is certain to have for the indefinite future, it would be startling if faculties had not concluded that the absence of racial minorities in law schools, or their presence only in very small numbers, would significantly detract from the educational experience of the student body. As a consequence of our history, race accounts for some of the most important differences in our society. Precisely because race is so significant, *prospective lawyers need knowledge of the backgrounds, views, attitudes, aspirations, and manners of the members of racial minorities.* It is true, of course, that the members of a minority group often differ with respect to these characteristics, and that with respect to some or all of them some members of minority groups are indistinguishable from many whites. Encountering these diversities and similarities is, however, an important part of the educational process. Well intentioned whites, no less than bigots, need to learn that there is not a common ''black experience" and to appreciate the oversimplification of such statements as ''blacks want {believe, need, etc.). . . ." Moreover, the distribution of attitudes among blacks, or among the members of other racial minorities, undoubtedly is not the same as it is among whites. And that too is worth knowing. If the distribution of perceptions and views about politics or crime or family is different among the several minority groups than [52] among whites, that in and of itself may exert a shaping influence upon law and public policy, an influence to which law students must become sensitive if they are adequately to serve their future clients and perform successfully their future roles as community leaders.


* Does this include "knowledge of the backgrounds, views, attitudes, aspirations, and manners" not only of blacks and Chicanos but also of Jamaicans, Puerto Ricans, Cubans, Dominicans, Salvadorans, Colombians, Peruvians, Brazilians, Navajos, Comanches, Sioux, Ojibwa, Aleuts, Hawaiians, Filipinos, Vietnamese, Koreans, Pakistanis, et al.? Not to mention white ethnic minorities, such as Spaniards, Portuguese, Italians, Poles, Serbs, Croats, Russians, Ukrainians, Arabs, Iranians, Armenians et al.?

I don't know how much knowledge of this sort a well-educated lawyer needs, but there surely are more appropriate sources than a few classmates: college or graduate courses in history, sociology and literature; practica or internships in minority neighborhoods. The law school is free to designate the studies and experiences required for its degree

The educational objectives of a minority presence in law school, finally, encompass more than increased understanding of minority groups. There is also a need to increase effective communication across racial lines. The difficulties that stand in the way of achieving such communication are not always obvious. Thus, an experienced law teacher has recently written: "I cannot imagine that any law teacher whose subject matter requires discussion of racially sensitive issues can have failed to observe *the inability of some White students to examine critically arguments by a Black, or the difficulty experienced by others in expressing their disagreements with Blacks on such issues.* Yet, these skills are not only a professional necessity, they are indispensable to the long-term well-being of our society."

  * To what extent is this problem a result of the preferential regime? Under it, white students at highly selective schools experience black students as protected, favored, and less able. White criticism of black opinions or conduct provokes accusations of racism, not only by blacks, but by a protective, institutional culture.

We have developed the educational objectives of special admissions programs at some length because of their importance and because they are matters about which law teachers may claim to speak with special competence. The importance of those objectives has already and only recently been recognized by this Court, albeit in a somewhat different context. Thus in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16( 1971), the Court acknowledged that it was within the authority of school officials to assign pupils by race ''in order to prepare students to live in a pluralistic society.'' *Most law faculties, with the approval of the governing bodies of their institutions, have similarly [53] concluded that the educational environment necessary to assure a sound legal education requires a racially integrated student body.*

  * What is meant by a "racially integrated student body"? I would define it as a student body open to all regardless of race, excluding no one because of race. However, this is precisely what the California Supreme Court sought to assure and the law faculties wish to prevent. How, then, do they define "racially integrated"? They apparently believe that it requires, in addition to whites, Asians et al., a certain proportion of blacks and Chicanos. How large a proportion? The Brief does not say. It estimates that, under race-neutral admissions, about 2% of law students would be black or Chicano, which it considers grossly insufficient. It reports that in 1976, with racial preference, the combined black and Chicano presence was 5%. Does this qualify as "racially integrated"? If so, how is it that 5% suffices when 2% does not? If 5% does not suffice, what percentage would?

C. Minority Group Lawyers Will Contribute To The Social Mobility of Racial Minorities

The special admissions programs that have been undertaken by the law schools must be seen as part of a larger effort by the nation to improve the conditions of life of some of its most disadvantaged citizens. In part that effort involves an attempt to accelerate the growth of a "middle class'' within those racial and ethnic minority groups that historically have been denied the opportunity to participate fully in the richness of American life. The justification for minority preferences within that overall strategy is not difficult to discern: because of the continuing importance of racial and ethnic identifications and loyalties, there is reason to anticipate that *the strengthening of the black, Chicano, or Puerto Rican middle class through such preferences will have a catalytic effect.* Increased numbers of black and Hispanic lawyers and other professionals should encourage the aspirations of black and Hispanic children. The organizational talent and financial resources of a minority middle class, experience suggests, will to some extent be put at the service of less advantaged members of minority groups. The hope, in short, is to set in motion a chain reaction leading to the breakdown of a complex of conditions that today condemn large numbers to lives of poverty and desperation.

  * The "strengthening of the black, Chicano, or Puerto Rican middle class" owes far more to the millions who finish college than the few thousands who need preference to attend professional schools. At the college level, there are enough places for all the high-school graduates who wish to enroll, which would still exist if all admissions were race-neutral. Racial preference in undergraduate admissions operates to shift racial minorities from less to more selective schools rather than to increase the total enrolled. At the graduate level, especially in the professional schools, preference determines not only where one enrolls but, in many cases, whether.

But if this chain reaction is to occur it must begin. Professional education is the last step in a long educational process. The abilities of an applicant to compete successfully for law school admission is the product not only of 16 years of previous schooling but also of the applicant's cultural background, a background intimately related to the educational [54] attainments of the applicant's parents and of other adults who have influenced his or her development. Even if there were now to be immediate and effective compliance with the command of Brown v. Board of Education, and equal educational opportunity in primary and secondary schools were suddenly to become a reality, considerable time would have to elapse before the effect of these changes could significantly affect the number and quality of minority applicants to law school. The command of Brown is not completely obeyed, however, even after nearly a quarter century. And equal educational opportunity does not exist.

To deny professional schools the power to employ race-conscious admissions standards is, thus, to withhold from minorities, for a generation and perhaps longer, an important avenue of social mobility. The costs of withholding realistic opportunities for professional education from the current generation of minority students will not be borne only by them. It will be borne also by other members of minority groups who will be denied the service that would have otherwise been provided to their communities. It will be borne by the next generation of minority children who, like those of previous generations, will lack a visible demonstration of the potential rewards of aspirations and effort. And, not least, it will be borne by white Americans who, once again, will have failed to meet their commitment to achieve racial equality.


To sum up, I agree with the Association of American Law Schools that under race-neutral admissions the proportion of black and Hispanic law students would be reduced (as of 1976) from 5% to 1 or 2%. I deny, and they have not shown, that this would be a national disaster.

They imply that racial preference in behalf of these two groups is justified as a remedy for the effects of past oppression. I reply that this remedy sets aside a principle, vital and precious to the nation, finally accepted after centuries of struggle—the principle of racial nondiscrimination. Those who claim the moral authority to sacrifice this principle in the name of a higher justice need to answer a host of questions, which this Brief fails to consider.

They assert a national commitment to "racial equality," enshrined in the Civil Rights Act of 1964. I agree that the Act committed the nation to "racial equality," defined as an equality of treatment regardless of race, i.e., racial nondiscrimination.

The Brief redefines the "racial equality" to which the nation is committed as equality of achievement. No proof is offered that a national commitment to racial equality of achievement actually exists or would be desirable. Having redefined "racial equality," the Brief simply postulates that the commitment is already there. This semantic sleight of hand will not fool those who carefully distinguish between popular words and their various meanings. But the authors may count on readers who are inclined on this issue to substitute words for thought.

The remainder of pages 54-66 is omitted. The complete Brief
Amicus Curiae of the Association of American Law Schools is reprinted in Philip B. Kurland and Gerhard Casper, Landmark Briefs and Arguments of the Supreme Court: Constitutional Law, Volume 99, at 591-664, University Publications of America: 1978. Also, in Alfred A. Slocum, Bakke v. Regents of the University of California, Volume 3, at 379-447, Oceana Publications: 1978.