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


YES! -- Brief Amicus Curiae of the LAW SCHOOL ADMISSION COUNCIL, pages 13-33 (in standard type): When race has been used to segregate children for inferior education, there is no escape from the use of race in making compensatory or remedial allowance for the handicap thus inflicted. The animating premise is equality, not preference, and the fundamental commitment is the belief which underlies the Constitution: that all ethnic groups are equally capable of educational achievement, that in a society free of discrimination no major differences would exist between such groups, and that the diminished academic attainment of minority applicants must be attributed to past discrimination against them. [footnotes omitted]

NO! -- Interspersed REBUTTAL by CURTIS CRAWFORD (in italics): The end of special admissions may be racial "equality," but the means is "preference"; the theory may be "racially neutral," but the policy is racial discrimination. Amicus insists that concerning academic capacity, no racial or ethnic group is superior to any other, and that the present differences in academic ability are due to past discrimination. But these are factual conclusions, not demonstrated by amicus, and not presupposed by the Constitution. The Brief confuses "equal treatment regardless of race" with "equal results for racial groups." The former is required by the Constitution's Equal Protection Clause; the latter is not.

Law School Admissions Council

[Page 13]
(2). Educationa1 Segregation Was Overwhelmingly Prevalent.

The legal milestones on the educational path of these students point to the obvious cause which excluded two-thirds of the blacks, in comparison with whites, by the time of college graduation. The typical college graduate of 1976 was 22 years old, born in the year when this Court first held racial segregation in public schools to be unconstitutional. Brown v. Board of Education, 347 U.S. 483 (1954). This typical student had reached the fourth grade in elementary school before enforcement authority was conferred upon the Department of Health, Education, and Welfare with the Civil Rights Act of 1964, and he was entering the formative high school years when enforcement began in earnest with this Court's declaration that "delays are no longer tolerable'' and that the obligation of every school district was to terminate dual school systems at once. Green v. County School Board, 391 U .S. 430, 438-39 (1968). According to the 1970 census, roughly half the black population of the United States (11,640,000 of 21,970,000) was living in the South, where racial segregation in education was required by explicit state statutes. The other half of the black population was concentrated heavily in the metropolitan and industrial centers of the North and Far West, in the central cities where racial segregation had been accomplished, also de jure, through official establishment of discriminatory school district boundaries and attendance zones. *In light of this experience, it is apparent that most black students graduating from high school in 1972 (who might later apply in 1976 for post-baccalaureate work) were victims of segregated schooling, limiting their educational attainments.*

  * There are two factual issues here: whether "most black students graduating from high school in 1972" attended segregated schools, and how much these schools limited "educational attainments." In this section, the Brief will present solid evidence concerning the first issue, but no evidence concerning the second.

[14] This conclusion is confirmed by the records of the Department of Health, Education, and Welfare, surveying the various school districts of the nation and specifying those districts which, from 1968 to 1973, had been adjudged, either in the courts or in administrative proceedings, to be racially segregated in violation of the Constitution and federal law. Tabulating this list of unlawfully segregated districts against the HEW records of the number of minority students enrolled in 1972 in those school districts and in non-violating districts, it is a simple matter to calculate the percentage of minority students attending segregated schools which had been officially adjudicated to be unlawful. Although the surveyed school districts cover only 97% of the total projected black student enrollment in public schools in the United States, and do not list as violators several large districts currently under investigation, the figures provide at least a minimum measure of the sweeping impact of segregation upon minority students who finished public schooling in 1972.

[15] Among the black population, 75.4% of the students (4,984,380 of 6,607,015) attended public school in unlawfully segregated districts, adjudicated to be in violation of this Court's commands in Brown. For all minorities, including American Indians, Orientals, and Spanish Americans, the percentage of students who had been found to be victims of illegal segregation is 62.6% (5,826,169 of 9,303,397). Litigation is currently in process in a number of other districts. If their enrollments are added, the percentage of blacks in segregated schools rises to 83.4% (a total of 5,512,938), and the percentage for all minorities increases to 72.1%. A tabulation by states is presented on the following pages. [Tables on pp 16 and 17 omitted. CC]

  Granted, that a great many black and other applicants to professional schools in 1976 had attended unlawfully segregated grade and high schools. A university, deeming this an unfair disadvantage, could have decided to give compensatory points in the admissions process to students, regardless of race, who had attended an unlawfully segregated school. Such an admissions policy, based on presumed individual disadvantage and not on race, would not have violated the legal principle laid down by the California Supreme Court, which this Brief seeks to reverse. That principle is the right not to be discriminated against, based on race or ethnicity, which is safeguarded by the Equal Protection Clause of the U.S. Constitution.

[18] These figures provide a ready answer to the question of why the pool of potential minority applicants to graduate and professional schools is severely limited, and explain why when blacks in their early twenties constitute 12.7% of the total population, they constitute only 5.3% of students graduating from college. More than three of every four have been unlawfully shunted into racially segregated public schools, *where they have received an inferior education in second-class facilities, in surroundings where expectations are low and aspirations are discouraged.*

  * The Brief has provided evidence for its assertions concerning the proportion of blacks attending unlawfully segregated schools. The relative quality of such schools will be harder to measure. On what kind of evidence will the Brief rely?

(3). Minority Applicants Achieved Lower Academic Attainment.

It would be astonishing if these survivors of unequal education in segregated schools were able to present, in their applications to graduate or professional schools, evidence of academic attainment equal to the records of the white majority. Of course they do not. Recent studies have analyzed the pool of 1976 applicants for professional study in the nation's medical schools (the Gordon report), and in the law schools (the Evans report), comparing minority applicants with the majority. [19] Their findings are consistent and expected: applicants from minority groups subjected to unlawful educational segregation rank significantly lower than white applicants on the conventional measures of academic achievement.

  The assumption is repeated, that the racial gap in academic achievement between black and white law and medical school applicants in 1976 is due to "unlawful educational segregation." The assumption is plausible, but thus far devoid of evidence.

To assess the educational attainments of their applicants, both medical and law schools use the records of grades earned in undergraduate courses in college, and the scores achieved on standardized objective tests administered nationally by organizations of the respective schools and called the Medical College Admission Test (MCAT) and the Law School Admission Test (LSAT). Grades earned in college inevitably reflect the student's preparation in high school and in the preceding years, while the objective tests measure certain abilities developed or acquired in the educational process with emphasis on verbal skills such as reading comprehension, vocabulary, grammar and syntax, and on quantitative and mathematical abilities.

Standardized test scores, like college grades, are "biased'' against blacks not in the sense that they predict that such students will earn lower law school grades than they actually receive, nor that such numerical indicators predict less accurately for one race. It would be contrary to basic premises of equality to suppose that a paper and pencil test of educational attainment could determine skin color among students who have been equally educated. *Like college grades, test scores penalize blacks* **not because the tests measure innate intelligence or mental capacity, but rather because they measure abilities which are taught, acquired, and developed in formal education.** A different, inferior education naturally tends to produce different, inferior scores.


* To say that college grades and test scores "penalize" those, black or otherwise, who perform less well is like saying that the thermometer that takes my temperature "penalizes" me when it indicates that I have a fever.

** The Brief's argument might be stated: Tests measure what is learned in schools; therefore, if students in one school test better than students in another, the latter school must be inferior. This argument would be conclusive, if the difference in schools were the only possible cause of the difference in performance. If, however, there were significant differences in the initial abilities of the students, or their habits, motivations, hobbies, family and neighborhood life, etc., the difference in schools would cease to be the only possible explanation of the difference in test scores.

[21] For law school applicants, the comparative analysis of these measures in the Evans Report reveals the impact of inferior schooling for minorities. While 40% of white applicants presented a cumulative undergraduate grade point average (UGPA) above 3.25 (B plus), only 13% of the blacks had college grade averages above that level. Dropping down to the level of 2.75 (B minus), 75% of white applicants fell above the line, in contrast with only 45% of the blacks. On LSAT scores, the differentials are even greater. Some 37% of white applicants scored above the 600 level (approximately the 75th percentile for all test-takers, including those who do not complete their applications), as compared with 3% of black applicants. At the 500 level of LSAT scores (roughly the national average), 77% of white applicants, as compared with 19% of the blacks, received scores above that line. When college grades and test scores are weighed together, in accordance with prevailing law school practice, these disparities reinforce each other. Only 1% of blacks, as against 20% of whites, have both college grade averages above 3.25 and LSAT scores above 600, and 11% of blacks, versus 61% of whites, have both college grade averages above 2.75 and LSAT scores above 500. It is inescapably apparent from these comparisons that unequal educational opportunity has taken its toll. The following tabulation is excerpted from the Evans report, Table 16, p. 36. [This table, occupying p 21 and presenting the number and percent of applicants at or above selected levels of LSAT scores and college grade averages, is omitted. CC]


Clearly, the gap in academic performance (as measured by college grades and LSAT scores) between black and white law school applicants in 1976 was substantial. The question remains: What caused the gap? The Brief holds that it was caused by inferior education in segregated schools.

No one doubts that the segregated schools of the 1960s were generally inferior and probably accounted for some of the racial gap in academic performance. But for how much of the gap? 90%? 50%? 10%? The authors of the Brief provide no way of knowing which of these numbers is closest to the truth. They assume, they speculate, they guess, as if no data existed that might substantiate or confute their claim.

Anticipating the question raised by the Brief, Congress directed the US Commissioner of Education to "conduct a survey and make a report to the President and the Congress . . . concerning the lack of availability of equal educational opportunities for individuals by reason of race, color, religion or national origin in public educational institutions at all levels . . ." Civil Rights Act of 1964, Sec. 402.

When completed, the survey and report were considered the second largest US social science research project ever undertaken. The survey covered 570,000 school pupils, 60,000 teachers, and 4,000 schools in great detail. The report, entitled Equality of Educational Opportunity, addressed four questions: (1) the extent of racial and ethnic segregation in the public schools; (2) school differences, in the quality of their facilities, curricula, faculty and student bodies; (3) student achievement as measured by standardized tests; (4) the relationships between students' achievement and the kinds of schools they attended. Of most interest here are the report's answers to (2) and (4).

The qualitative differences between black and white schools proved much smaller than generally expected. Here are a few examples from a long list of comparisons. The report presents the comparisons by showing the percentage of black or white students attending elementary or secondary schools with a given characteristic. (These examples are from James S. Coleman et al., Equal Educational Opportunity, Volume 1, Tables 1-4, 6a, 6b, and 2.21.9., Washington, D.C.: 1966.)

Av # of Pupils per Teacher
Av Teacher Salary ($1,000's)
Av Highest Degree (3 = B.A.)
Av Teacher Verbal Score
Percent Black Teachers
Percent White Teachers
Accelerated Curriculum
Regionally Accredited School
School Library
Av # of library books per pupil
Full-time Librarian
Biology Laboratory
Chemistry Laboratory
Physics Laboratory
Language Laboratory

Black (Ele)

Black (Sec)

The impact of qualitative differences in schools was also much smaller than expected. The report's conclusion is stated as follows: "It is known that socioeconomic factors [in students' backgrounds] bear a strong relation to academic achievement. When these factors are statistically controlled, however, it appears that differences between schools account for only a small fraction of differences in pupil achievement." EEO 1, pp 21-22. [Emphasis added]

No attempt was made to quantify the contribution of inferior schools to the black/white gap in student achievement. But the relative insignificance of the school effect is indicated by a table showing median test scores for black and white first and twelfth graders. The average gap of 9.3 standardized points between the two races at the beginning of first grade is 85% as large as the gap of 10.9 points at the beginning of twelfth grade. EEO 1, Table 9, p 20. Thus, a "small fraction" of the gap may reasonably be attributed to inferior schools, but the greater part was already there the first day of class.

The Brief's assumption that inferior, racially segregated schools produced the gap in academic performance of black and white professional school applicants of 1976 is thus squarely contradicted by comprehensive data that had been publicly available for a decade.

[22] *The Evans report also shows the cumulative effect of the segregated educational system which produced only one-third as many black college graduates, proportionally to population, as whites,* and which left these survivors with lower educational attainment, as measured by college grades and test scores. As ranked by these measures, the top 41,500 law school applicants for 1976 (5% more than total first-year enrollment) included between 369 and 411 blacks, depending upon the relative weights given to UGPA and LSAT. Thus 13% of the population at the age level for law school entry is decimated to roughly 1% who, against these educational headwinds, have managed to match the educational attainments of the white majority.

  * On page 12 of the Brief (not reproduced here), statistics were cited showing that 29% of whites and 11% of blacks born in 1954 graduated from college in 1974. However, no evidence from the Evans report or elsewhere was presented, indicating that the graduation gap was "the cumulative effect of the segregated educational system." The authors of the Brief proceed as if they had never been taught to recognize and avoid the logical fallacy of post hoc, ergo propter hoc (since B occurs after A, it occurs because of A).

B. An Admissions Policy Making Allowance for Effects of Prior Segregation Is Reasonable.

In the current era of transition toward full equality of educational opportunity, the lawyers who comprise the nation's law faculties, and their admission committees, confront a situation where minority applicants are the products of an educational system still largely segregated when they passed through, which has allowed only one-third as many blacks as whites, in proportion to their populations, to complete college, and has left these survivors severely handicapped in their relative academic attainment as measured by the conventional yardsticks of grades and test scores. Faced by these hard realities, *law schools have been compelled to choose between two contrasting policies of admission: a color-blind policy (as mandated by the court below) or a policy which takes account of the education disadvantages unlawfully imposed upon their minority applicants (as overwhelmingly adopted in higher education).*


* Not necessarily contrasting. Law schools could have chosen a color-blind admissions policy, which included extra points for applicants, regardless of color, who attended unlawfully segregated schools. Why not take this route? Because it would not have admitted "enough" blacks? The Brief's statistics give us the proportion of all black pupils, but not of black applicants to professional schools, who had attended segregated public schools. These two proportions may have been quite different.

[23] (1). Upon Premises of Racial Equality, the Minorities' Educational Disadvantages Are the Result of Segregation.

*A color-blind policy would be ideal in a nation with no history of racial discrimination, or where all vestiges of such discrimination had been eradicated.* In this nation and in this generation, however, to base admission upon ''merit'' as measured by past educational attainment, with no consideration of race, could be justified only upon premises which conflict with basic constitutional tenets and would entail consequences which, paradoxically, violate **the ultimate goals of the color-blind ideal.**


* This statement suggests that racial discrimination should not be banned in a nation with any "history of racial discrimination," or with any "vestiges of such discrimination" still present. In other words, the time to outlaw racial discrimination is only after it has ceased to exist. This is like saying: theft should not be banned in a country with any history of theft, or with any vestiges of theft still present.

** What are the "ultimate goals of the color-blind ideal"? Are they not the same as the immediate goals: that persons not be subjected to unequal treatment, based on their race or ethnicity?

In using academic attainment as the admission standard, without amelioration for past educational discrimination, the law school would aid and abet the constitutional violation committed by other institutions through which the applicant had passed in his progress up the educational ladder. Whether or not a school could lawfully accept only applicants who had attended schools from which blacks were excluded, a law faculty may surely prefer not to reinforce past wrongs, and may choose not to inflict further harm upon minority applicants solely because of the handicaps they labor under as victims of previous educational segregation. The runner who was illegally shackled in running the elimination heats cannot, in fairness, be excluded from the race.

Moreover, to use educational attainment as the measure of ability, *while refusing to come to grips with the glaring question of why minority applicants rank lower on these measures,* **or to consider past discrimination as the obvious cause,** ***would involve a tacit but implicit adoption of a premise of genetic inferiority, in [24] direct conflict with the first and essential premise of democratic government.*** Law school faculties, unlike the court below, have chosen to face that question, to look to the cause of minority applicants' lower college grades and test scores, and to base their admission policies upon a working premise that is consistent with racial equality. They should not be compelled to follow an approach which denies, sub silentio, that **unlawful segregation** has produced any effect, and which therefore could be explained only on some undemocratic and ****unscientific assumption that biologically or genetically, members of minority groups are incapable of equal education attainment.****


* Surely, it is this Brief that refuses "to come to grips with the glaring question of why minority applicants rank lower on these measures," by assuming an unsubstantiated answer, and by ignoring the data that contradict it.

** Within the last two paragraphs, three different phrases have been used to designate the cause of the racial gap in academic performance. The phrases are: "previous educational segregation," "past discrimination," and "unlawful segregation." The Brief may intend these as different names for the same thing: the unlawfully segregated schooling of current professional school applicants. But in their normal usage, "unlawful segregation" and "past discrimination" apply to a host of possible causal factors above and beyond recent "educational segregation." Does the Brief rely on these additional factors as a fall-back explanation of the gap in academic performance, in case the Court is not satisfied with "educational segregation" as a sufficient reason? Will the Brief provide any evidence to justify such reliance?

*** On page 20, the Brief states that the test scores and college grades, in which the racial gap occurs, "measure abilities which are taught, acquired, and developed in formal education." Does the premise of genetic inequality in the capacity to develop these abilities really conflict "with the first and essential premise of democratic government"? No one denies the enormous individual differences in these abilities, which are commonly attributed in part to differences in innate capacity. No one imagines that, given the same environment and effort, everyone would be as brilliant as Shakespeare or Einstein. If individual differences are partly hereditary, why not group differences? What is the "first and essential premise of democratic government"? Does the Brief mean the assertion in our Declaration of Independence that "all men are created equal"? But the equality there affirmed is in the rights to life, liberty and the pursuit of happiness. There is no affirmation that all persons are equal in physical health and strength, artistic talent, intellectual capacity or moral character. If such had been declared, no one would have believed a premise so contrary to everyday experience. If democratic government does not require individual equality in the capacity for academic excellence, why would it require racial or ethnic equality in that regard?

*** The Brief calls the assumption, that racial groups differ in their genetic capacity for academic performance, "unscientific." This would be true, if the assumption were contradicted by the facts. Likewise, the contrary assumption, that racial groups do not differ in their genetic capacity for academic performance, would be unscientific, if contradicted by the facts. The Brief offers no evidence concerning the truth of either assumption.

(2). Segregation Is Judicially Regarded as Impairing Educational Achievement. In adopting racial equality as the working premise for admissions, and in taking earlier segregated education as the cause of minorities' diminished educational achievement, a law faculty goes no further than the teachings of this Court. Griggs v. Duke Power Co., 401 U.S. 424 (1971), sustained remedial action to ameliorate the exclusionary effect of using measures of educational attainment (standardized test scores and high school graduation) which "operate to disqualify Negroes at a substantially higher rate than white applicants.'' 401 U.S., 426. The cause for this disqualification was directly ascribed: ''This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, Petitioners have long received inferior education in segregated schools . . . .'' 401 U.S., 430.


Griggs concerned the legality, under the Civil Rights Act of 1964, of educational requirements for job applicants, which were unrelated to the job applied for. The Court's opinion, as quoted, did blame the racial difference in educational achievement on segregated schools, but it did not suspend the use of educational requirements that were relevant to the job, or authorize a double standard in the implementation of such requirements, as sought here by amicus.

[25] The question of what causes the lower educational achievement of minorities who received their early schooling in an era of racial segregation was also before this Court, in a different context, in Oregon v. Mitchell, 400 U.S. 112 (1970), involving congressional action against the exclusionary impact of literacy tests for voting. The remedy was justified by the cause, identified by reason and experience: ''Congress also had before it this country's history of discriminatory educational opportunities in both the North and the South. *The children who were denied an equivalent education by the 'separate but equal' rule of Plessy v. Ferguson, 168 U.S. 537 (1896), overruled in Brown v. Board of Education, 347 U.S. 483 (1954), are now old enough to vote. There is substantial, if not overwhelming, evidence from which Congress could have concluded that it is a denial of equal Protection to condition the political participation of children educated in a dual school system upon their educational achievement.'' 400 U.S., 133.*

  * The quotation from Oregon v. Mitchell states that segregated schools denied blacks an "equivalent education," a fact that is not disputed in this discussion. However, it takes no position concerning how much of the racial gap in academic performance was due to segregated education. The second sentence refers to a judgment that Congress "could have" made concerning the right to vote, not to a judgment of the Court concerning racial preference in professional school admissions.

Earlier, in Gaston County v. United States, 395 U.S. 285 (1969), the Court had drawn the same causal inference: ''It is only reasonable to infer that among black children compelled to endure a segregated and inferior education, fewer will achieve any given degree of literacy than will their better-educated white contemporaries. . . . 'Impartial' administration of the literacy test today would serve only to perpetuate these inequities in a different form.'' 395 U.S., 295-97.

  Again, the first part of the quotation from the Supreme Court supports a premise we all accept, that segregated education was inferior. However, the second part suggests an analogy favorable to amicus, which may be spelled out in the following questions: – If a state's public schools, through unlawful segregation, have given blacks an inferior education, won't a race-neutral use of grades and test scores as requirements of admission to the state's university "perpetuate these inequities in a different form"? If the state is responsible for the racial gap in academic performance, though only in part, can it fairly require a level of performance that it has impeded?

Accordingly. the nation's law schools, like the medical schools, have broadly agreed in concluding that race [26] must be taken into account as a factor in admissions. The triggering factor is not race in any genetic or biological sense, but rather those classifications, however defined, that have been employed unconstitutionally in the past to separate the population and to group people for discriminatory treatment. It is ironic but true that the cure must match the disease, and that to identify the victims of discrimination, we must adopt the same forbidden categories which were used by the wrongdoers to isolate their victims. When race has been used to segregate children for inferior education, *there is no escape from the use of race in making compensatory or remedial allowance for the handicap thus inflicted.*

  * Not so. As I have said above, professional schools are perfectly free under the Constitution to give admissions points to applicants, regardless of race, who have attended unlawfully segregated schools. A wiser policy would be to assist the establishment of summer academies, at every grade level, providing additional instruction for children, regardless of race, whose regular schools are incompetent. This policy, instead of lowering standards to accommodate the disadvantaged, would help the disadvantaged rise to meet the regular standards.

(3). A Policy Remedying the Handicaps of Segregation Is Supported by Reason and Fact.

To take account of minority status under these circumstances does not rest upon any notion of reparations to a whole people, nor upon the ignoble history of slavery involving ancestors four generations removed from today's applicants. *The handicaps taken into consideration result from the unconstitutionally segregated education perpetrated upon this generation of applicants.* **It is unmistakable, of course, that education is but one aspect of a general cultural suppression involving jobs, housing, and participation in the governmental processes as well as education. Discriminatory forces press in upon the individual minority member from various directions, and reinforce their separate impact. Educational attainment is inhibited not only by segregation in the classroom, but also by the ceiling on aspiration imposed by limited career opportunities and diminished expectations of the teacher. Their effects are inextricably interrelated, and the black [27] student who escapes from one discriminatory force—be it poverty, the ghetto, or the segregated school—remains subject to the impact of the other forces operating to restrict his academic achievement. He remains identified as a member of a group doomed to menial work, for whom academic accomplishment has no apparent value, and for whom the learned professions are traditionally closed.**


* The "handicaps taken into consideration" are the racial gaps in grades and test scores. The Brief has yet to present any evidence as to what proportion of the gaps is due to segregated education.

** The argument suggested by these sentences is that, if not the segregated education of this generation, then the overall discrimination of many generations, can explain the gaps. Toward the end of page 23, there were hints of this as a substitute hypothesis. I asked then whether any evidence would follow. It has not. At this point the substitute hypothesis is mere speculation, and time is running out.

In a mobile society, with people moving frequently from place to place and from school district to school district, *it approaches inevitability that a black applicant will have received a significant part of his schooling, like 80% of his fellow black students, in an unlawfully segregated school.* The inference of past segregation is compelled by overwhelming evidence. The rare applicant who, against all odds, has evaded segregated schooling, and has overcome the inhibitory effects of knowledge that his race generally has been stamped as inferior by state and school authorities, will need no remedial evaluation of his application, for the probabilities are high that he will pass muster anyway. Admissions is inherently a process based upon inferences and presumptions founded in experience. **A workable policy, avoiding the imposition of exorbitant costs upon the schools and their students, must apply generally like the law.** The possibility that some black voters' failure to pass the literacy test might not have been caused by segregated education does not invalidate the congressional remedy for the widespread wrong. In this case the Davis medical school operated upon the premise that minority students were disadvantaged for that reason and by that status, unless that inference, reasonable if not compelled, was rebutted by available evidence. Unless unconstitutional wrongs are to be perpetuated, such an approach is essential.


*The figure of 80% applies to all black students, not to the comparatively advantaged few who apply to professional schools. They come largely from middle-class families; indeed, in 1966, 40% of black middle-class high-school students attended private schools.

** As I have stated, a professional school is free under the Constitution to grant admissions points to applicants, regardless of race, based on the number of years spent in an unlawfully segregated school. Since the preference would be based on individual injury rather than race, it would not violate the Constitutionally protected rule against racial discrimination. The Brief seems to argue that it is more important for the schools to avoid the paper work of tabulating applicants' segregated education, than to avoid the practice of racial discrimination in the admissions process.

[28] *A policy of this kind involves no discrimination, benign or benevolent in the sense of a benefit for those who are thought to be more worthy.* It assumes neither the superiority of one group, nor inferiority of another which would leave its members in need of charity and aid. It is not preferential in the sense of boosting those who could not succeed in fair and open competition. On the contrary, *the animating premise is equality, not preference,* and the fundamental commitment is **the belief which underlies the Constitution: that all ethnic groups are equally capable of educational achievement, that in a society free of discrimination no major differences would exist between such groups, and that the diminished academic attainment of minority applicants must be attributed to past discrimination against them.** *The principle is racially neutral, and would apply equally if today's minorities should attain controlling power and should inflict educational handicaps upon the whites. Such a premise of equality as the foundation of action is the opposite of the discriminatory purpose which this Court has ruled to be an essential element of a denial of Equal Protection. Washington v. Davis, 426 U.S. 229 (1976).*


* The end may be racial "equality," but the means is "preference;" the theory may be "racially neutral," but the policy is racial discrimination. In Washington, the Court ruled that racial discrimination, to be unconstitutional, must be intentional. Amicus here contends that racial preferences in professional school admissions are not intentional, when their purpose is the achievement of racial equality. But in constitutional and statutory law, whether racial discrimination is intentional depends not on its avowed purpose, but on whether one meant to do it. Inserting another, conflicting definition of intentional would nullify the law by making unequal treatment based on race simultaneously unlawful (because intended) and lawful (because its goal is equality).

** Amicus states: "the belief which underlies the Constitution: that all ethnic groups are equally capable of educational achievement, that in a society free of discrimination no major differences would exist between such groups, and that the diminished academic attainment of minority applicants must be attributed to past discrimination against them."

Whether or not these opinions underlie the Constitution, they may well underlie much of race-based affirmative action in the academy. Their frank, plain statement, is rare and a service to the debate. But are the opinions true? They are not self-evident. One might hope that authors capable of stating them would provide good reason for believing them. Instead, the Brief fails to deal with even the most obvious objections.

We are told that "the diminished academic attainment of minority applicants must be attributed to past discrimination against them." The special admissions defended by amicus are chiefly for blacks and Hispanics. Many of the latter are immigrants, whose grades and scores are as low or lower than those of American-born Hispanics. Is this due to past discrimination in their land of origin? Rather than inferior schools, or poverty, or cultural handicaps, or poor English or . . . ? How does amicus know that the gap must be due to discrimination?

During the century between 1860 and 1960, Chinese and Japanese in the United States were discriminated against as severely as Mexicans. Yet in 1976 the educational and professional attainment of the two former were already comparable to that of American whites, and substantially higher than the latter. If "past discrimination" caused the "diminished academic attainment" of Mexican-American applicants, why did it not have this effect on Chinese- and Japanese-Americans? During the same century, Jewish-Americans also suffered persistent discrimination, yet their test scores and professional representation in 1976 were substantially higher than that of other whites. Was the "diminished academic attainment" of whites as compared to Jews the result of "past discrimination"?

Do these opinions actually underlie the Constitution? Not according to the author of the celebrated dissent in Plessy v. Ferguson. Rejecting racial segregation, Justice Harlan maintained that the Constitution is color-blind. Although the white race is superior to the black, he candidly opined, this does not justify racial discrimination. He was quite clear that racial superiority in ability did not imply the right to practice racial discrimination. He would have been astonished at the converse notion (suggested by amicus): – that the Constitutional right not to be treated unequally based on race implies racial equality in ability.

The only amendment that mentions race is the 15th, which forbids denial of the right to vote on account of race or color. Does this provision rest on the premise of racial equality in ability? The right to vote, for adult American citizens, is equal—thus the expression, "one person, one vote." But equality of individual voters' rights has never been understood to imply equality in individual voters' education or intelligence. To derive racial equality of ability from the 15 Amendment, one must overcome two giant constitutional obstacles: that the right to vote belongs to individuals, not groups, and that equality in the right does not imply equal ability in the voter.

Despite the substantial, persistent inequalities of academic performance by Jewish, Asian, white, Hispanic, African and Native Americans, amicus assumes that all racial and ethnic groups are equal in academic capacity, and that any apparent differences are due to past discrimination. Having offered neither argument nor evidence to support these propositions, what makes amicus so confident of their truth? Is it a reaction to the assumptions of the past? Throughout history, it has been common for ethnic and racial groups to assume the superiority of their own kind over others. Although such assumptions could be true in more than one case if the superiority were in different respects, they were almost all false if the superiority were overall. In retrospect, the assumptions seem like self-serving prejudices. So amicus, determined not to repeat the sins of our forebears, insists that concerning academic capacity, no racial or ethnic group is superior to any other, and that the present differences in academic ability are due to past discrimination. But these are factual issues. Do some racial and ethnic groups differ in their genetic capacity for academic (or artistic, political, administrative, athletic, military, etc.) performance? Or is such performance unequal, not because of genes, but from cultural or other environmental differences? The correct answers to these questions—whatever they may be—will not be found by reacting to ancient prejudices with the erection of modern ones.

On this foundation, an admissions policy taking race into account contains its own time limitations. The policy will expire of its own force when the applicants coming to the graduate and professional schools are no longer the products of segregated elementary and high schools, and the promise of Brown has been fulfilled. In the meantime, to forbid such a policy would condemn still another generation to the serfdom created by past wrongs. There is also the real possibility that the need for this remedial policy will disappear even before equal [29] education has become a reality, if the current general trends in college attendance and law school applicant volumes should continue and accelerate. Minority admissions became a problem only with recent increases in applications, in numbers far beyond the capacity of the schools to accommodate. A decline to earlier levels would solve the problem, allowing all qualified applicants to enroll, and dispensing with the need for any consideration of minority status.

(4). The Remedial Policies Adopted Are Reasonably Limited in Scope and Effect.

Although remedial policies for minority applicants have been widely adopted by the nation's law schools, their actual effect has been modest—too modest, some think. In the Prelaw Handbook, more than 90% of ABA approved law schools have announced that the school ''actively recruits minority and disadvantaged students." These recruiting activities have met with success. *Black college graduates apply more frequently than whites, by a margin of 8.3% of blacks to 7.3% for whites.* Indeed, this recruitment success has caused the other graduate disciplines to complain that law and medicine are skimming the cream from the pool of most promising minority students. Contrary to the specula-tions [30] of the majority opinion below, there is little reason to believe that further recruitment efforts would improve or enlarge the minority pool, especially if, as the opinion would require, such efforts were directed indifferently to all races.

  * These figures are strong evidence of the suction power of racial preference. A black edge of 14% (8.3/7.3) would be noteworthy, if black and white law applicants had been equal in the academic abilities sought by law schools. But this high black figure exists despite radically lower qualifications. Whites in 1976 would not have dreamed of going to law school, if they had the level of ability of most blacks who were applying, and successfully entering.

Despite effective recruitment, the pool of available talent is limited. Nearly all law schools today require a bachelor's degree as a condition of eligibility for consideration, and proportionately few cross that threshold. College grades and standardized test scores are useful—although far from precise—indicators of probable law school grades, since past academic attainment tends to predict future academic attainment. Because minorities generally rank lower on these measures, for reasons evident from their previous educational experience, a somewhat disproportionate number of minority applicants must be rejected as having no reasonable chance of completing law school, so that to admit them would be a misallocation of resources, wasting a year of their lives and occupying valuable law school seats. Accordingly, only 39% of black applicants to the nation's law schools were admitted to the class entering in 1976, in contrast with 59% of the white applicants. The comparison should dispel any notion that blacks might not be carefully screened, or that they are welcomed without regard to probable academic success. Those who are admitted are fully qualified, and are predicted by the numerical indicators of probability to have an excellent likelihood of law school graduation. By these numerical predictors, they would have been accepted as a matter of course but for the fact that the increase in applicant volume has far outdistanced the increase in law school places in the past fifteen years. [31] Their average scores on the LSAT are as high as or higher than the median scores of students registered at 80% of the nation's law schools in 1962, who have since graduated and risen to prominence in the bench and bar.

By taking minority status into account in accordance with these policies, the 163 ABA approved law sehools in the aggregate enrolled a grand total of only 2,128 blacks in the 1976 entering class. They occupy only 5.3% of the available seats, and constitute a minute fraction of the total 76,061 applicants. *To exclude them all would have no significant effect toward reducing the net disappointment felt by 30,000 unaccepted applicants, and at those volumes, none can be certain that the admission of a black was the cause of his personal disappointment.* As in Washington v. Davis, 426 U.S. 229 (1976), the blacks accepted fall short of parity with their proportion of the total applicant pool, and unlike the situation in that case, fall far short of parity with their proportion of the relevant age group in the population from which the applicants are drawn.


* The issue is not whether law-school applicants are disappointed when they are not accepted. The issue is whether they were not accepted due to racial discrimination, and whether they have the (moral and) legal right not to be subjected to racial discrimination in the application process. Amicus would have no difficulty in recognizing the issue if the racial discrimination favored whites instead of blacks.

Law school applicants are drawn from throughout the country, and every law school receives a majority of its applications from nonresidents of its state. Nationally, blacks constitute 13% of the total population in the age range usual for beginning law study, but only 5.3% of actual beginners. By chance, this percentage happens to correspond directly with the percentage represented by blacks among the nation's baccalaureate recipients, the maximum eligible [32] population for law school. *Of course the goal is not proportional representation, to make every law school class a perfect microcosm of the national population.* The goal is rather to provide equal educational opportunity within reasonable limits for those few survivors of segregated education who have demonstrated full qualification for successful completion of the course of law studies.


* Perhaps the goal is not "to make every law school class a perfect microcosm of the national population," but (if we still have the same author) it is something very close to "proportional representation." Recall the insistence that racial and ethnic groups are equal in their academic capacity and that any inequality in their actual abilities is due to adverse discrimination. On these assumptions, our society stands convicted of racial and ethnic discrimination, as long as it fails to produce proportional representation for racial and ethnic groups in higher education and the professions.

When minority recruitment policies were first adopted, around 1968, minority law school enrollments rose rapidly for a few years, but have now leveled off to a rate of increase comparable to the rate for total law school enrollments. In an era of constant flux, the policies adopted by law schools for consideration of minority status are by no means uniform, and are necessarily evolving and somewhat tentative. As in a line of judicial decisions, the policy is shaped and developed through experience. The answers do not all reveal themselves at once, and a degree of experimentation is both inevitable and wise. A particular policy, no matter how well reasoned its design, needs testing in the trial of actual use. The possibility of bias in the usual quantified predictors of law school grades, or in the law school grading process itself, can be investigated empirically only if an adequate number from a minority group is enrolled and actually graded.

Although the minority admissions policies have varied widely among the law schools adopting them, they are united on one essential: minority status must be taken [33] into account both to serve rationally the basic purpose of selection, and to avoid perpetuating the harms of educational segregation.


The Brief of the Law School Admission Council asks the US Supreme Court to grant preferential admission to professional schools for black applicants, thus annulling for white applicants the Constitutional right not to be discriminated against based on race. To support this plea, the Brief:

  • Describes the black/white gap in academic abilities, as measured by grades and test scores, as the chief impediment to black admission to professional schools.
  • Assumes that the gap is wholly the result of unlawful, racially segregated education. This assumption is maintained, without presenting any supporting evidence, and without confronting the comprehensive US government report, which concluded that only a small fraction of the differences in student grade and high-school performance was caused by differences in the schools.
  • Fails to consider, as a remedy for educational disadvantage, granting admission points to applicants, regardless of race, who attended unlawfully segregated schools, or helping to establish summer academies at the elementary and secondary level, for students, regardless of race, who go to incompetent schools
  • Assumes that racial and ethnic groups are equal in their innate capacity for academic achievement, and that apparent gaps in abilities are due to past discrimination. Both views are presented without evidence, and without considering obvious objections. The assumptions might be explained as prejudices of group equality in reaction to the prejudices of group superiority, which have long swayed human history.
  • Assumes that these two assumptions underlie the Constitution of the United States. This assumption may result from the Brief's confusion between "equal treatment regardless of race" and "equal results for racial groups." The former is protected by the Constitution's Equal Protection Clause, the latter is not.

The remainder of pages 33–55 is omitted. The complete Brief Amicus Curiae of the Law School Admission Council is reprinted in Philip B. Kurland and Gerhard Casper, Landmark Briefs and Arguments of the Supreme Court: Constitutional Law, Volume 100, at 57-116, University Publications of America, Washington, D.C.: 1978. Also, in Alfred A. Slocum, Bakke v. Regents of the University of California, Volume 4, at 143-200, Oceana Publications: 1978.