Amicus Brief — University of California Regents v. Bakke

Ficeo

| JUN 4 4977

In the Supreme Court

United States

Ocrorner Term, 1976

No.76-811

Recents or THE UNtverstty or CALrrorNia,

Petitioners,

V8.

ALLAN BAKKE,

Respondent.

BRIEF OF AMICUS CURIAE

ASIAN AMERICAN BAR ASSOCIATION OF THE GREATER BAY

AREA IN SUPPORT OF PETITIONERS

WuuiaM Jack Cuow,

‘ 626 Grant Avenue

San Francisco, Californie 94108

Attorney for Asian American

Bar Association of the

Greater Bay Area.

Of Counsel:

Martin &§. Crew,

Bu One Hrvxa,

Pewny N. NAKATSU.

PE RNAYU . WALSH PRINTING CO . S62 MISSION STREET . SAN FRANCISCO CA 84/08

from invidious racial discrimination ..............

17

17

Table of Authorities Cited

Cases Pages

Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 348

I I a eee ce ksoees 24

Asakura v. City of Seattle, 265 U.S. 332 (1924) ......... 9

Associated Gen. Contractors of Mass., Inc. v. Altshuler, 490

F.2d 9 (ist Cir. 1973), cert. denied 416 U.S. 957 (1974)

padbddnbebnenosenseesedbocdidesossosessodeedssends 19, 20, 21

Bakke v. Regents of the University of California, 18 Cal.

a Gr CY dtc dadebucneacndnended 3, 14, 24, 26, 27, 29, 30, 31

Brown v. Board of Education, 347 U.S. 483 (1954) ....... 18

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert.

Se I I eden 21

Contractors Association of Eastern Pa. v. Secretary of

Labor, 442 F.2d 159 (3d Cir. 1971), cert. denied 404 U.S.

ee GED “Shndedacondecdecesoondscsedscbousdbeesen< 21

Crawford v. Board of Education of the City of Los Angeles,

iy Ge Gat GED Seecodccsccescnsccesecoscosedbes 13

DeF unis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973),

Ss Gee Ges Ge GT cecenccacecesoesssoces 14, 20, 31

Ex parte Ah Pong, 19 Cal. 106 (1861) .................. 6

Germann v. Kipp, 45 US.L.W. 2486 (U.S.D.C. W.Mo.

I it ta a dno ae ene 24

Gong Lum v. Rice, 275 U.S. 78 (1927) .................. ll

Graham v. Richardson, 403 U.S. 365 (1971) ............ 17,18

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .......... 25

Hernandez et al. v. Board of Education of Stockton Unified

School Dist., Civ. No. 101016, San Joaquin Super. Ct.

Sy Pee ele eee ee 13

Hernandez v. Texas, 347 U.S. 475 (1954) .............. 18

Hirabayashi v. United States, 320 U.S. 81 (1943) ........ i)

In re Ah Yup, 1 F. Cas. 223 (C.C. Cal. 1878) (No. 104) 7

In re Griffiths, 413 U.S. 717 (1973) ................... 12

In re Hong Yen Chang, 84 Cal. 163 (1890) ............. 12

Im re Terwi, 167 Cal. 2D (1GB1) ... 2... ccc ccc cc ccccccces 9

In re Yamashita, 30 Wash. 234, 70 Pac. 482 (1902)

Tassie oy AutrHorities Crrep iii

Pages

Johnson v. San Francisco Unified School Dist., 339 F.Supp.

1315 (N.D. Cal. 1971), vacated and remanded on other

grounds, 500 F.2d 349 (9th Cir. 1974) ............... 12

Korematsu v. United States, 323 U.S. 214 (1544) ........ 9, 26

Lau v. Nichols, 414 U.S. 563 (1974) .......... 12, 13, 15, 20, 23

Lee v. Johnson, 404 U.S. 1215 (1971) .........606ccuue 12

Lin Sing v. Washburn, 20 Cal. 534 (1862) ............. 6

McLaurin v. Oklahoma State Regents, 239 U.S. 637 (1950) 28

Offerman v. Nitkowski, 378 F.2d 22 (2d Cir. 1967) ...... 20

Ozawa v. United States, 260 U.S. 178 (1922) ............ 8

Oyama v. California, 332 U.S. 633 (1948) .............. 18

Pennsylvania v. O'Neill, 348 F.Supp. 1084 (E.D. Pa. 1972),

modified 473 F.2d 1029 (3d Cir. 1973) .............4.. 21

People ex rel. Attorney General v. Naglee, 1 Cal. 232 (1850) 6

People v. Hall, 4 Cal. 399 (1854) ......... 0c cece ceeeees 6

Plessy v. Ferguson, 163 U.S. 537 (1896) ................ ll

Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970) .......... 19, 20

San Antonio Independent School Dist. v. Rodriguez, 411

CE, B GEBED cccccccccccccccccccccccccccccccceseces 18

Soria v. Oxnard School Dist., 386 F Supp. 539 (C.D. Cal.

) . \ PPPPPPPrrTTiTTrITiTiITiTiTiTiirirrirreiriririiiTi Tete 13

Spangler v. Pasadena City Bd. of Education, 311 F.Supp.

— ree 13

Speer v. See Yup Co., 13 Cal. 73 (1859) ............... 6

Swann v. Charlotte-Mecklenburg Bd. of Education, 402

BE 8 GIBTED cccccccccccccccccccccccceccecscccceses 19, 20

Takahashi v. Fish and Game Commission, 334 U.S. 410

| PPP TToTTTTTTTTTITITiTiTiT rrr TTT ree 18

Tape v. Hurley, 66 Cal. 473 (1885) .... 2.0... - cece eeeees 10

Terrace v. Thompson, 263 U.S. 197 (1923) .............. ss)

The Chinese Exclusion Case, 130 U.S. 581 (1889) ........ 8

United Jewish Organization of Williamsburgh, Inc. v. Carey,

= , 45 U.S.L.W. 4221 (March 1, 1977) ...... 20, 24

United States v. Carolene Products Co., 304 U.S. 144 (1938) 18

aS een

iv Tas_e or AutHorities Crrep

Pages

Webb v. O’Brien, 263 U.S. 313 (1923) ..............0.. 9

Westminster School Dist. of Orange County v. Mendez,

& §& F fF S Rea are 10

Wong Him v. Callahan, 119 F. 381 (C.C. Cal. 1902) ..... ll

Yamashita v. Hinkle, 260 U.S. 199 (1922) .............. 9

Yiek Wo v. Hopkins, 118 U.S. 356 (1886) ............... 7,18

Codes

California Education Code, Section 1662 ................ 10, 11

Constitutions

California Constitution :

i Tl cichedncadadesddecosessenssdbbobietesedetaes 7

nn © scbddecccdusdbseasdeisedensadebe 6

i A 1? kKsnndcaceseeesebedeceondeodteeoces 6

it, Ph Ch 2 scdivcecestbadutnddeneeudéldeduace 7

iy Ge EE OD Rndcuceceseesscedsseesdestsececocs 7

United States Constitutions, Fourteenth Amendment .

$06660006006600660000000066 0000008 3, 4, 7, 11, 17, 19, 20, 24, 33

United States Supreme Court Rules, Rule 42(2) .......... 1

Statutes

Act of April 13, 1850, ch. 97, §1 et seq., 1850 Cal. Stat. 221 6

Act of April 28, 1855, ch. 153, §1, 1855 Cal. Stat. 194 .... 6

Act of May 17, 1861, ch. 401, §93, 1861 Cal. Stat. 448 .... 6

Act of April 26, 1862, ch. 339, §1, 1862 Cal. Stat. 462 .... 6

Act of May 31, 1870, ch. 114, §16, 16 Stat. 144 .......... 6

Act of February 18, 1875, ch. 80, §2169, 18 Stat, 318 ..... 7

Act of May 6, 1882, ch. 126, §1, 22 Stat. 58 ............. 7

Act of July 5, 1884, ch. 220, §4, 23 Stat. 115 ............ ®

Act of Mareh 12, 1885, ch. 117, §1, 1885 Cal. Stat. 99 .... 10

Act of October 1, 1888, ch. 1064, §1, 25 Stat. 504 ........ .

Act of December 17, 1943, Pub. L. No. 78-199, 57 Stat. 600 7

Act of September 19, 1947, ch. 737, §1, 1947 Cal. Stat. 1792 10

-_ - —— eee ~—_

Tassie or Autuoritties Crrep Vv

Pages

Act of June 27, 1952, P.L. No. 82-414, 66 Stat, 163 (8 U.S.C.

DEED "Se0c cv ddbohldh vsGe cbbebn coven seeebbsccocesens s

Act of October 3, 1965, Pub. L. No, 89-236, 79 Stat. 911... 14

Title VI of the Civil Rights Act of 1964 (42 U.S.C.

EEUU cbcceces ede es bese cccsveéoss csesecocceceoons 22, 23

Regulations

45 C.F.R. 80.3(b) (vii) (6) (ii) (1976) 2... eee ee 23

> Gra GED GCHSED co ccccctisccccccccccceccccccces 22

Texts

Brest, In Defense of the Anti-Diserimination Principle, 90

Sn, BE GRSGED ccdecccccesececooccoccecsecesss 18

Bureau of the Census, U.S. Dept. of Commerce, Census of

Population: 1970, Final Report Occupational Charac-

Gees Ge HED BD ccccccccccccccccccscccces 16

Bureau of the Census, U.S. Dept. of Commerce, Release No.

CB71-408 (October 20, 1971) ........ccccececceceeceee 16

California Advisory Committee to the U.S. Comm’n on Civil

Rights, Asian Americans and Pacific Peoples: A Case of

Mistaken Identity 15 (Feb, 1975): ........ 065 cc ceeuees 13

BaD TR GB ccccccccccecccesecccccoceccesescccves 28

Bee GR, Ba B cccccccccccccccccscccsccccccesosccees 15

Paes GEG, BB ccccces ceccccccccccccoseccce. cove 29

A History of the Chinese in California, 4 (T. Chinn ed.

PFT TITTT TTT TO TTT TTT TT Tit TT Te 29

Comment 12 New England L.Rev. 719, 753-60 (1977) ..... 24

M. Coolidge, Chinese Immigration 36 (1906) ............. 6

Dept. of Health, Education, & Welfare, 2 A Study of

Selected Socio-Economic Characteristics of Ethnic Mi-

norities Based on the 1970 Census: Asian Americans (No.

(OS) 75-121) 102-03, 107-114 (1974) .............+++:.18,14

Ferguson, The California Alien Land Law and the Four-

teenth Amendment, 35 Cal.L.Rev. 61 (1947) ........... 9

aa SNe eer

vi Tas_e or AutHorities Crrep

Pages

Gunther, Foreword: In Seareh of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protection,

Sp EC BD GR Wecbcceccuddeucecceecccescees 24

Y. Ichihashi, Japanese in the United States 228-318

DEED . webesecedaseseeesekabedsaensidens<éesasecence 8

Immigration and Naturalization Service, U.S. Dept. of

Justice, 1975 Annual Report 65, Id. at 57 ............. 14

M. Konvitz, The Alien and Asiatic in American Law (1946):

Tt De tébnens oqeeeendesnenedschesuseceaeas 9

St) TD’ dhdicucde cutindncsdbdbensendécucoedis 12

tt? SD ddpcduahedegehetadscedesosseeteoneuce 5

I le fii ak hl alee oe a a ee ee 10

MeGovney, The Anti-Japanese Land Laws of California

and Ten Other States, 35 Cal.L.Rev. 7 (1947) ......... 9

Occupational Characteristics, page 12, n. 24 ............. 16

O'Neil, Racial Preference and Higher Education: The Lar-

ger Context, 60 U.Va. L. Rev. 925, 944-45 (1975 ...... l4

Rostow, The Japanese American Cases—A Disaster, 54 Yale

iy Ge GD bdddbbunbdbedeteansededoeesseenseesces 10

Sandalow, Racial Preferences in Higher Education: Political

Responsibility and the Judicial Role, 42 U. Chicago L.

Rev. (1975):

TP UD cudecéuccocsschsdetedeestacuceseeteucdéce 14

Dee GED ‘dewdancddeddeddecededecedccackocacce’ 14

I I I a i is a 31

E. Sandmeyer, The Anti-Chinese Movement in California

EEE Ghbbndddeusesceeseseeescetechesecoececéicecese 6

Day UD Sucnddanadduceadesunéedececteéesneceecs 7

Slaughter-House Cases, 16 Wall. 36 (1873) .............. 17

tenBroek, Barnhart and Matson, Prejudice, War and the

Se Gee Cee GD ccccccceccece cocccccccs 10

C. Wollenberg, All Deliberate Speed: Segregation and Ex-

clusion in California Schools, 1855-1875 (1976):

UD GE ccccccccceccccecnccccosccccceesceccece 5

DUD GED wccceccececncosceecececesecocecesccees 10

Pe GD ccdcdccccancecdaceqseccscccsesscessece 10

Iu the Supreme Court

Anited States

OcToBER TERM, 1976

No. 76-811

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Petitioners,

vs.

ALLAN BAKKE,

Respondent.

BRIEF OF AMICUS CURIAE

ASIAN AMERICAN BAR ASSOCIATION OF THE GREATER BAY

AREA IN SUPPORT OF PETITIONERS

All parties have consented to the filing of this brief

on behalf of the Asian American Bar Association of

the Greater Bay Area in support of the Petitioners.’

I

INTEREST OF AMICUS CURIAE

The Asian American Bar Association of the Greater

Bay Area [hereinafter “‘AABA”] is a voluntary bar

’ consent of both the petitioners and the respondent are

oy filed with the Clerk of Court in accordance

with Rule 42(2) of the Rules of this Court.

association founded in 1976 and composed largely,

though not exclusively, of Asian American attorneys

who practice in the San Francisco Bay Area. Its

membership also includes state officials and judges of

the state and federal bench.

The goals of AABA are to identify and serve the

legal needs of the Asian American community in gen-

eral and of the Asian American members of the legal

profession in particular. To those ends, AABA has

numerous committees for public service and education,

professional continuing legal education, public ap-

pointments, and litigation and legislation affecting

the Asian American community.

AABA’s interest in this case stems from its con-

cern for the integration of what has been, and may

yet continue to be, a nearly all-white legal profession

in the country and especially in California. It is

AABA’s belief that the California Supreme Court’s

decision, if affirmed here, will all but ensure that

minority groups, including Asian Americans, will

continue to be grossly and perhaps permanently un-

derrepresented in legal education and in the bar.

Moreover, as is made plain by the number and

diversity of amici in this case, it is widely believed

that the court’s decision below, if upheld, may spell

the end for all voluntary affirmative action programs

in education and employment, thereby perpetuating

the effects of centuries of racial discrimination.

AABA’s basic position is, therefore, that meaning-

ful and effective racial integration of the bar and

other institutions can only be attained through the use

of remedial programs such as the one here at issue.

II

SUMMARY OF ARGUMENT

The University of California at Davis Medical

School [hereinafter “University”] operated a special

admissions program which allocated 16 of 100 posi-

tions in each medical school class for disadvantaged

racial minorities. This program was found to be in

violation of the Fourteenth Amendment’s Equal Pro-

tection Clause in Bakke v. Regents of the University

of California, 18 Cal.3d 3% (1976). Amicus AABA

files this brief in support of the University’s program

and, more broadly, in support of all remedial affirma-

tive action programs.

As a distinct racial minority group in the United

States, Asian Americans have endured a long history

of invidious racial discrimination. This prior history

of discrimination, both de jure and de facto, was

particularly evident in regard to education and em-

ployment in the professions. (Part IIIA1.)

Moreover, the results of this prior discrimination

continue to be felt by Asian Americans today. These

effects are compounded by the continued growth of

the immigrant Asian population in the United States.

As a group, therefore, Asian Americans still experi-

ence many language and educational handicaps, some

of which are due to segregated public educational

facilities. (Part ITTA2.) j

4

In light of this notorious discrimination against

Asian Americans and other racial minorities in the

United States, the University was justified in adopt-

ing a remedial special admissions program, the pur-

pose of which was to compensate for such prior dis-

crimination. Because such racial classifications are

not invidious as against the racial minorities affected,

such programs should not be judged by the traditional

“strict scrutiny” standard of equal protection under

the Fourteenth Amendment. The University’s pro-

gram lacks the features that have traditionally led to

invalidity under that standard. (Part IITB1.)

Moreover, even if the University has not been found

to be racially discriminatory, it may voluntarily adopt

compensatory racial classifications. This is consistent

with many cases that have upheld the use of remedial

racial classifications. Both case law and federal regu-

lations permit, and indeed encourage, the adoption of

such voluntary remedial programs. (Part ITTB2.)

The proper rule of law in the case of remedial racial

classifications is an intermediate standard between

the traditional tests of “ reasonable relationship” and

‘strict serutiny”. Such an intermediate standard

would continue to subject racial classifications to close

judicial analysis and would require, inter alia, a find-

ing of specific need, a limited programatic duration,

and a earefully defined scope. (Part ITTB3.)

Even assuming arguendo that the traditional ‘‘strict

scrutiny” standard should be applied to the Uni-

versity’s program, it is nonetheless constitutional.

The program meets many compelling state interests,

and, in light of the specific goal to be served, the

achievement of more minority representation in the

student body and medical profession, is the least in-

trusive alternative available to the University. (Part

ITIC1 and 2.)

III

A. ASIAN AMERICANS HAVE SUFFERED AND CONTINUE TO

SUFFER FROM INVIDIOUS RACIAL DISCRIMINATION

1. There is a long history of invidious discrimination against

Asian Americans.

The plight of disadvantaged minority students seek-

ing to gain entry into graduate and professional

schools today stems from the history and continuing

effects of de jure segregation and discrimination

against minorities in the United States. Here Amicus

AABA will attempt a brief recapitulation of the

sordid treatment of Asian Americans, particularly in

California and in regard to public education. See M.

Konvitz, The Alien and Asiatic in American Law

219-30 (1946) [hereinafter “Konvitz”]; C. Wollen-

berg, All Deliberate Speed: Segregation and Exclusion

in California Schools, 1855-1875 at 28-81 (1976) [here-

inafter “Wollenberg”]. From this background it will

be seen that there is abundant evidence of “prior dis-

crimination” whose effects necessarily pervade current

educational policies.

The earliest Asian immigrants to the United States

and the first Asian victims of discriminatory legis-

6

lation, especially in California, were the Chinese. See

generally E, Sandmeyer, The Anti-Chinese Movement

in California (1939) [hereinafter “Sandmeyer”].

Virtually every civil right of the Chinese was

attacked by invidious class legislation or judicial in-

terpretation. The Chinese were assessed special and

onerous taxes, such as the Foreign Miners’ License

tax’, a passenger tax,’ and a “Chinese Police Tax”.

Such taxation did not end until Congress adopted

the Civil Rights Act of 1870,’ which prohibited such

discriminatory taxes,

The Chinese were also prohibited from testifying

for or against white persons in any court of law, in

either civil or criminal proceedings. Speer v. See Yup

Co., 13 Cal. 73 (1859); People v. Hall, 4 Cal. 399

(1854).

Article XIX of the California State Constitution

of 1879 represented the highpoint of anti-Chinese

legislation. Section 1 authorized California counties,

cities, and towns to remove all Chinese to beyond the

State’s borders. Section 2 forbade the employment of

*Act of April 13, 1850, ch. 97, §1 et seq., 1850 Cal. Stat. 221,

aff'd in People ex rel. Attorney General .. Naglee, 1 Cal. 232

(1850). This tax was so successful (see M. Coolidge, Chinese

Immigration 36 (1906)) that the California Legislature made it a

statutory conclusive presumption that all Chinese were “miners”

for purposes of the tax. Act of May 17, 1861, ch. 401, §93,

1861 Cal. Stat. 448. This presumption was invalidated by the

California Supreme Court in Ez parte Ah Pong, 19 Cal. 106

(1861).

*Act of April 28, 1855, ch. 153, §1, 1855 Cal. Stat. 194.

‘Act of April 26, 1862, ch. 339, §1, 1862 Cal. Stat. 462. This

tax was also voided by the California Supreme Court in Lin Sing

v. Washburn, 20 Cal. 534 (1862).

°Act of May 31, 1870, ch. 114, §16, 16 Stat. 144.

7

any Chinese, directly or indirectly, by any California

corporation. Section 3 prohibited any public employ-

ment of Chinese. And Section 4 empowered the re-

moval of Chinese without municipal boundaries or,

in the alternative, the establishment of official Chinese

ghettos. Fortunately federal courts declared the

legislation adopted under Article XIX unconstitu-

tional. Sandmeyer, supra, at 71-74. Article | of that

same 1879 Constitution also denied the Chinese the

right to own or inherit any real property and the

right to vote.

Many local ordinances were also directed against

the Chinese. It will be recalled that this Court de-

veloped its fundamental Fourteenth Amendment test

of equal protection in Yick Wo v. Hopkins, 118 US.

356 (1886), in regard to a city ordinance whose in-

tended effect was to disable thousands of Chinese

from operating their laundries in San Francisco.

~ Under intense pressure from these same anti-

Chinese elements, federal legislation was adopted in

1875° resulting in the first wholesale exclusion of an

entire national group from the right of naturaliza-

tion, so that Chinese in America were, until 1943,’

‘‘aliens ineligible for ..tizenship”. See In re Ah Yup,

1 F. Cas. 223 (C.C. Cal. 1878) (No. 104).

In 1882 Congress went further by ‘“‘suspending”

all immigration of Chinese laborers for ten years,"

*Act of February 18, 1875, ch. 80, §2169, 18 Stat. 318

"Act of December 17, 1943, Pub. L. No. 78-199, 57 Stat. 600

*Act of May 6, 1882, ch. 126, §1, 22 Stat. 58.

and this restriction was further stiffened in 1884.’

Chinese immigration was totally and permanently

prohibited in 1888, even though this contravened a

then valid treaty.”

No sooner had the anti-Chinese movement subsided,

after the ban on Chinese immigration, then sprang

up another anti-Asian movement against the Jap-

anese in America. See Y. Ichihashi, Japanese in the

United States 228-318 (1932). Again, every effort was

bent to deprive these Asians of their legal rights by

systematic invidious legislation.

In the landmark case of Ozawa v. United States,

260 U.S. 178 (1922), this Court held that the Jap-

anese petitioner, not being “a free white person”,

was an alien ineligible to become a naturalized Ameri-

ean citizen.” From this result flowed a devastating

series of schemes to deprive Japanese Americans of

their civil rights.

The primary focus of early Japanese American eco-

nomie endeavors was in agriculture, particularly in

California. Hence, numerous “‘alien land laws” were

enacted to prohibit Asians, but especially the Jap-

anese, from owning or possessing any other legal

*Act of July 5, 1884, ch. 220, §4, 23 Stat. 115.

“Act of October 1, 1888, ch. 1064, §1, 25 Stat. 504 afd in

The Chinese Exclusion Case, 130 U.S. 581 (1889).

"The court followed the same reasoning which, 44 years earlier,

had deprived the Chinese of their right to naturalize, supra, at 7.

The Japanese were not permitted to become naturalized citizens

until the passage of the Immigration and Naturalization Act of

1952. Aet of June 27, 1952, P.L. No. 82-414, 66 Stat. 163

(codified at 8 U.S.C. §1101).

—_—_ — —————

interest in real property, such as the Washington

statute upheld in Terrace v. Thompson, 263 U.S. 197

(1923), and the California statute in Webb v. O’Brien,

263 U.S. 313 (1923). See Konvitz, supra, at 148-70;

MecGovney, The Anti-Japanese Land Laws of Cali-

fornia and Ten Other States, 35 Cal.L.Rev. 7 (1947) ;

and Ferguson, The California Alien Land Law and

the Fourteenth Amendment, 35 Cal.L.Rev. 61 (1947).

imposed and then struck down. See, e.g., Jn re Terut,

187 Cal. 20 (1921). And blatantly racist attempts

were made to prohibit Japanese from following even

the most menial occupations, such as pawnbroker.

See, eg., Asakura v. City of Seattle, 265 U.S. 332

(1924). It was also held that Japanese in Washington

had no right to incorporate a business, since they

were aliens ineligible to citizenship. Yamashita v.

Hinkle, 260 U.S. 199 (1922).

But no chronicle of the Japanese experience in the

United States can be complete without a thoughtful

and melancholy consideration of this Court’s own de-

cisions in Hirabayashi v. United States, 320 U.S. 81

(1943) and Korematsu v. United States, 323 US.

214 (1944). In Korematsu, the Court approved the

wartime program of relocation and incarceration of

110,000 Japanese Americans. In his eloquent dissent,

Mr. Justice Murphy called the Korematsu decision a

“legalization of racism”. 323 U.S. at 242. Innumera-

ble scholars and many others have exhaustively ana-

lyzed these decisions and have uniformly found them

10

grossly repugnant to the Constitution and a deep

stain upon the escutcheon of American civil liberty.”

Asian Americans have fought for almost a century

in California and elsewhere to obtain equal oppor-

tunities in public education. In 1885, a young Chinese

girl sued to obtain admission to the San Francisco

publie schools after school officials denied her appli-

cation. Tape v. Hurley, 66 Cal. 473 (1885); see Wol-

lenberg, supra, at 39-43. Although she gained

admission, immediately thereafter the California

Legislature enacted a statute to establish racially

segregated schools for Asians, and that was California

law until 1947."

In October 1906 the San Francisco Board of Edu-

cation adopted a resolution that assigned all Japan-

ese children to the inferior, segregated school there-

tofore established for Chinese children. This policy

was rescinded only by the filing of a federal civil

rights lawsuit by the United States Attorney General,

the personal intervention of President Theodore

Roosevelt, and most ignominiously, the conclusion of

the infamous ‘‘Gentlemen’s Agreement” in which

Japan informally agreed to end Japanese labor immi-

gration to the United States. See Wollenberg, supra,

at 48-75. And, as with the Chinese, section 1662 of

"See, ¢.g., Rostow, The Japanese American Cases—A Disaster,

‘4 Yale LJ. 489 (1945); Konvitz, supra, at 241-79: and

tenBroek, Barnhart and Matson, Prejudice, War and the Consti-

tution 325-34 (1970 ed.).

“The original statute was the Act of March 12, 1885, ch. 117,

§1, 1885 Cal. Stat. 99. It was y reenacted, including six

times after 1900, until its repeal by the Act of 19,

1947, ch. 737, §1, 1947 Cal. Stat. 1792. See also Westminster

School Dist. of Orange County v. Mendez, 161 F.2d 774 (9th Cir.

1947).

il

the California Education Code continued the statewide

policy of racially segregated public schools for the

Japanese American until 1947. Id., at 72.

The segregated San Francisco school system was

upheld against a Fourteenth Amendment challenge

by a Chinese American in Wong Him v. Callahan,

119 F. 381 (C.C. Cal. 1902). And in Gong Lum v.

Rice, 275 U.S. 78 (1927), Chief Justice Taft, writing

for the Court, approved the exclusion of Chinese

American students from white schools in Rosedale,

Mississippi, following the “‘separate but equal” doc-

trine of Plessy v. Ferguson, 163 U.S. 537 (1896).

This, then, is the legacy of exclusionary practices

and policies that has deprived Asian Americans of

their civil liberties, including access to equal educa-

tion opportunities. It is respectfully submitted that

no clearer proof of a history of “‘prior discrimination”

need be shown.

Beyond access to educational institutions is the

issue of access to the professions and other employ-

ment. Again, as to Asians, there is an abundant his-

tory of “prior discrimination” whose effects must be

combated today by compensatory programs such as

the one operated by the University here. Amicus

AABA, composed of Asian American attorneys and

deeply committed to the concept of equal justice

under law, notes that, until the repeal of the dis-

criminatory naturalization laws by Congress only 25

vears ago, Asians in the United States, no matter

how well qualified or how well trained, could be and

were excluded from the professions.

OE eEOo7Uc7U

12

In In re Hong Yen Chang, 84 Cal. 163 (1890), a

Chinese attorney, trained at Yale and Columbia, was

refused admission to the California Bar solely on the

ground that he was an alien ineligible to citizenship

due to his race. The Japanese met with the same

racial barriers. In In re Yamashita, 30 Wash. 234, 70

Pac. 482 (1902), the Washington Supreme Court

denied a Japanese applicant admission to the bar of

that state solely on the ground of his race, although

the opinion of the court plainly stated that he had

‘the requisite learning and ability qualifying him for

admission”. See also Konvitz, supra, 171-89. Cf. In

re Griffiths, 413 U.S. 717 (1973).

2. Asian Americans still suffer from the effects of past discrimi-

nation.

Asian Americans, as a racial group, continue to

bear the social and economic scars of a century of

de jure and de facto discrimination. Though much

progress has been made since the Second World War,

Asian Americans have yet to reach parity with white

Americans in many areas.

To this very day, Asian Americans are stil] subject

to the effects of racially segregated public schools.

In 1971 the San Francisco public schools were found

to be racially segregated. Johnson v. San Francisco

Unified School Dist., 339 F.Supp. 1315 (N.D. Cal.

1971), vacated and remanded on other grounds, 500 F.

2d 349 (9th Cir. 1974). In Lee v. Johnson, 404 U.S.

1215 (1971), Mr. Justice Douglas expressly found that

such racial segregation adversely affected Chinese

American students in San Franciseo. See also Lau v.

13

Nichols, 414 U.S. 563 (1974). In 1976 the California

Supreme Court affirmed that the Los Angeles public

schools were racially segregated. Crawford v. Board

of Education of the City of Los Angeles, 17 Cal.3d

280 (1976). Based on 1970 Census data, 110,000 Asian

Americans lived in the City and County of San Fran-

cisco, and another 238,000 lived in Los Angeles

County”; thus, in these two areas alone, at least 15

per cent of all Asian Americans in the United States

have had to endure the effects of racial segregation

in the public schools in this decade. Other major

California cities and towns, where many Asian Ameri-

cans reside, have likewise been found to be operating

racially segregated school systems. See, e.g., Soria v.

Oxnard School Dist., 386 F. Supp. 539 (C.D. Cal.

1974); Spangler v. Pasadena City Bd. of Education,

311 F. Supp. 501 (C.D. Cal. 1970); and Hernandez

et al. v. Board of Education of Stockton Unified

School Dist., Civ. No. 101016, San Joaquin Super.

Ct. (Oct. 9, 1974).

Even where Asian Americans have overcome the

obstacles to equal educational opportunity, they have

continued to be employed at levels incommensurate

with their training.” Similarly, Asian Americans have

substantially lower incomes per capita than white

Americans despite having equivalent or superior edu-

“Calif. Advisory Committee to the U.S. Comm’n on Civil

Rights, Asian Americans and Pacific Peoples: A Case of Mistaken

Identity 15 (Feb. 1975).

Dept. of Health, Education, & Welfare, 2 A Study of Selected

Socio-Fconomic Characteristics of Ethnic Minorities on the

1970 Census: Asian Americans (No. (0S) 75-121) 102-03 (1974)

(hereinafter “Asian Americans”].

ee

14

cational backgrounds.” Furthermore, these economic

and educational disparities will likely increase for

Asian Americans for the foreseeable future due to

the continued influx of Asian immigrants to the

United States. After the elimination of the discrimin-

atory national origins quota system in the immigra-

tion statutes”, over 750,000 Asian immigrants came

to the United States between 1966 and 1975." Ap-

proximately one-third of all these recent Asian

immigrants have settled in California.”

Of paramount concern to AABA is whether the

growing Asian American community, especially in

California, will receive adequate legal representation.

A major factor to be considered in the training of

more lawyers for such work is language ability.” Not

every applicant to law school can speak Chinese,

Japanese, Korean, Tagalog or Ilocano with the fluency

**Id., at 107-114.

“Act of October 3, 1965, Pub. L. No. 89-236, 79 Stat. 911.

“Immigration and Naturalization Service, U.S. Dept. of Justice,

1975 Annual Report 65.

I d., at 57.

*Amicus AABA agrees with Mr. Justice Douglas that law

schools should not be trying to produce black lawyers for black

people (or, by extension, Asian American lawyers for Asian

Americans). DeFunis v. Odegaard, 416 U.S. 312, 342 (1974)

(dissenting opinion). In a strict sense, such a goal could be

ialism”, as Mr. Justice Mosk called it in the court below.

, A 3d at 53. However, the peculiar linguistie and cultural

be ad if 7 andy FY yn ty

cme 1 are to

professionals for all Americans. See Sandalow, Racial Preferences

in Higher Education: Political Responsibility cu

Role, 42 U. i L. Rev. 653, 686-88 (1975) [hereinafter

“Sandalow”|, and O'Neil, Racial Preference and Higher Educa-

tion: The Larger Context, 60 U.Va. L. Rev. 925, 944-45 (1974).

15

necessary to aid clients who do speak mainly or ex-

clusively these languages. Yet, according to the U.S.

Department of Health, Education, & Welfare, “[i]n

1970, 62% of Japanese, 76% of the Chinese and 64%

of the Filipinos [in the United States] had retained

their respective Asian languages as their mother

tongue.”™” Under such circumstances, it is doubtful

that non-Asian attorneys could even begin to deal

intimately with Asian Americans’ legal needs. “ More-

over, there continues to be an influx of new [ Asian]

immigrants for whom mastering English is particu-

larly difficult.””

This court itself has recently recognized the severe

deprivation of equal protection that may result if

such linguistic differences are not heeded. In Lau v.

Nichols, 414 U.S. 563 (1974), this Court recognized

the need for special programs for the thousands of

Chinese non-English-speaking students in San Fran-

cisco’s public schools. The lack of knowledge of Eng-

lish was equally present among both American-born

Chinese-speaking children and Chinese immigrants in

that case. Five of the named petitioners in Lau were

American-born citizens of the United States.”

Perhaps most compelling is the patent under-

representation of Asian Americans in the legal pro-

fession itself. In 1970, the ratio of Asian American

attorneys to the Asian American population in the

“Asian Americans, supra n. 1, at 63.

27d.

lv Brief for Petitioners at 4, Lau v. Nichols, 414 U.S.

563 (1974).

16

United States was only one-half the comparable ratio

for white persons, as demonstrated by the 1970 Census

data infra:

Racial Group Attorneys'' Population" Attorney: Persons

Whites 259,857 177,748,975 1 684

J apanese 512 591,290 1 : 1,555

Chinese 372 435,062 1 : 41,170

Filipino 120 343,060 1 2,859

In the 1970 Census, there were a total of approxi-

mately 2.09 million Asian Americans, of whom

approximately 1,000 were attorneys.” Thus, Asian

Americans comprised almost exactly one per cent of

the nation’s total population, but only three-tenths of

one per cent of the nation’s total lawyers.”

These graphic statisties demonstrate beyond any

reasonable doubt the lingering effects of past racial

discrimination against Asian Americans. Moreover,

they show the clear need for programs directly aimed

at substantially increasing the number of Asian Amer-

ican attorneys who will be required to serve the grow-

ing need for legal services in the Asian American

community.

Populations 1500" Plead Big te Oat Semmanen, Consus

ton: 1970, Final Report Occupational Characteristics (Ne

(2)-7A) 12 [hereinafter ‘‘Oceupational Characteristies’’}.

*Bureau of the Census, U.S. Dept. of Commerce, Release N

(B71-408 (October 20, 1971). ~

*Id.; Oceupational Characteristics, supra n. 24, at 12.

"Id.

17

B. THE USE OF RACE TO REMEDY THE DISADVANTAGES

CAUSED BY RACIAL DISCRIMINATION AGAINST MINORITY

GROUPS IS NOT SUSPECT.

The University’s special admissions program is

designed to remedy the exclusion of minority groups

from higher education in general, and the medical

school in particular, which has resulted from prior

racial discrimination against those minority groups.

Amicus AABA contends that the use of racial criteria

in such a program and, by extension, in all affirmative

action programs, is not necessarily suspect despite

the fact that non-minorities may to some extent be

disadvantaged.

1. The use of race to remedy the effects of prior discrimination

is consonant with the purposes of the Fou-teenth Amendment

and does not present the invidious features contained in tra-

ditionally disfavored racial classifications.

Previous equal protection decisions by this Court

have involved only invidious discrimination against

racial minorities so that, accordingly, a “strict scru-

tiny” test was appropriate. But, here, where the

University’s program is remedial and benign toward

minorities disadvantaged by prior racial discrimina-

tion, a different policy is involved, and a different

and intermediate equal protection standard should be

applied.

The central purpose of the Fourteenth Amendment

was to guarantee equality for blacks, e.g., Slaughter-

House Cases, 16 Wall. 36 (1873), and by extension it

has come to afford special protection for other

minority groups. See, e.g., Graham v. Richardson,

18

403 U.S. 365 (1971); Oyama v. California, 332 U.S.

633 (1948); Vick Wo v. Hopkins, 118 U.S. 356

(1886). Those racial and national origin classifica-

tions traditionally found suspect and invidious by

this Court have always involved either unequal treat-

ment of a minority group, e.g., Yick Wo v. Hopkins,

supra, or the exclusion of minority groups from par-

ticipation in the majority social institutions, with the

resulting stigma of inferiority. See, e.g., Brown v.

Board of Education, 347 U.S. 483 (1954) ; Hernandez

v. Texas, 347 U.S. 475 (1954) ; Takahashi v. Fish and

(fame Commission, 334 U. 8. 410 (1948). In contrast,

the medical school program here does not have the

purpose or effect of segregating and stigmatizing

either the participating minority groups or the ma-

jority white group.

It has also been argued that the use of racial

classifications are suspect, because they have tradi-

tionally been utilized to disadvantage isolated and,

powerless groups, ¢g., San Antonio Independent

School Dist. v. Rodrigues, 411 U.S. 1 (1973) ; Graham

v. Richardson, supra; United States v. Carolene Prod-

ucts Co., 304 U.S. 144, 152-53 n. 4 (1938), or because

such classifications have resulted in cumulative and

pervasive disadvantage, San Antonio Independent

School Dist. v. Rodriguez, supra, at 28; Brest, In

Defense of the Anti-Discrimination Principle, 90

Harv.L.Rev. 1, 10 (1976). However, special admis-

sions programs which benefit the victims of past racial

discrimination are distinguishable and do not present

these objectionable features.

18m 3

Oe ee ee Be

19

Moreover, the majority has less need for comparable

judicial protection since, as the politically dominant

racial group, the majority retains greater access to

political remedies for unreasonable or irrational reme-

dial programs. The Fourteenth Amendment does not

bar the majority from choosing to assume some of

the necessary burden required to redress its own

historic discrimination against minority groups.

Perhaps the greatest objection to the use of racial

classifications is that, ideally, race is and ought to be

simply irrelevant to any legitimate objective. Were it

not for this nation’s history of racial discrimination,

AABA would concede that race should not be a rele-

vant consideration in a professional school’s admission

program, However, where the school’s purpose is to

remedy the continuing effects of prior racial dis-

crimination against minority groups, race is clearly

necessary and relevant, See, e.g., Swann v. Charlotte-

Mecklenburg Bd. of Education, 402 U.S. 1 (1971);

Associated Gen. Contractors of Mass., Inc. v. Alt-

shuler, 490 F.2d 9, 16 (1st Cir. 1973), cert. denied,

416 U.S. 957 (1974) ; Porcelli v. Titus, 431 F.2d 1254

(3rd Cir. 1970).

Special admissions programs that use racial classi-

fications to remedy the disadvantages resulting from

prior discrimination against minority groups are thus

historically and conceptually distinguishable from

those racial classifications traditionally found invid-

ious and do not call into play the protective policies

necessitating strict judicial scrutiny. Further, since

20

the program’s purpose is remedial and is both con-

sonant with and promotive of the purposes of the

Fourteenth Amendment, the use of racial classifica-

tions in this context is constitutionally permissible.

2. Prior cases have permitted the remedial use of race without

requiring strict judicial scrutiny.

While the constitutionality of voluntary preferen-

tial admissions programs is to be decided by the

Court for the first time™, numerous decisions of this

Court and lower federal courts have recognized the

validity, in analogous cases, of remedies framed in

terms of race or ethnic status. In upholding these

race conscious remedies the courts have not applied

the strict judicial scrutiny test but some lesser

standard, See, e.g., Lau v. Nichols, 414 U.S. 563

(1974); Swann v. Charlotte-Mechlenburg Bd. of

Education, 402 U.S. 1 (1971); Associated Gen. Con-

tractors. of. Mass., Inc. v. Altshuler, 490 F.2d 9 (1st

Cir, 1973), cert. den., 416 U.S. 957 (1974); Porcelli

v. Titus, 431 F.2d 1254 (3d Cir. 1970); Offerman v.

Nitkowski, 378 F.2d 22 (2d Cir, 1967). —

Thus, this Court has required the assignment of

public school pupils on racial grounds in order to

promote school integration. Swann v. Charlotte-Meck-

lenburg Bd. of Education, supra. Special admissions

programs likewise have the purpose and effect of

integrating professional schools. Cf. United Jewish

Organizations of Williamsburgh, Ine. v. Carey, ........

U.S. ...., 45 U.S.L.W, 4221 (March 1, 1977).

*DeFunis v. Odegaard, 416 U.S. 312 (1970), involving the

validity of preferential admissions by a state law school, was held

moot by the Court.

TC tc tii ti

21

In the employment area, numerous cases have

sanctioned the use of preferential minority hiring

goals where minorities had been excluded from hiring

opportunities in the past. See, e.g., Carter v. Gal-

lagher, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406

U.S. 950 (1972); Contractors Association of Eastern

Pa. v. Secretary of Labor, 442 F.2d 159 (3d Cir.

1971), cert. denied, 404 U.S. 854 (1971)”.

A review of these cases reveals that there was often

no history of racial discrimination by the employer.

Rather, the finding of “prior discrimination” rested

on an observed underrepresentation of minorities in

various job categories along with the use of tests

or other criteria which disproportionately excluded

minorities. See Carter v. Gallagher, supra; Pennsyl-

vania v. O'Neill, 348 F.Supp. 1084 (E.D. Pa. 1972),

modified, 473 F.2d 1029 (3d Cir. 1973).

Affirmative action programs have not always been

imposed only against the “guilty” discriminatory

employer. In the so-called “Executive Order” employ-

ment discrimination cases (¢.g., Contractors Associa-

tion of Eastern Pa, v. Secretary of Labor, supra;

Associated General Contractors of Mass., Inc. v.

Altshuler, supra) employer affirmative action pro-

grams were upheld even absent a showing that the

employers themselves had discriminated. Rather the

remedial plan was imposed on employers to remedy

discrimination by the labor unions which supplied the

*"These minority hiring goals “discriminated against” white

job applicants to the extent they were not hired for jobs which

they otherwise might have gotten but for the minority goal.

E.g., Carter v. Gallagher supra.

workers to the employer. The reasoning of these cases

thus supports the use of remedial racial classification

by an institution even though that institution might

not have been guilty of prior discrimination.

Professional school special admissions programs

use racial criteria to remedy the continuing effects

of prior discrimination against minority groups by

public school systems and other social institutions.

Such prior racial discrimination, though not prac-

ticed by the professional school itself, operates to

seriously disadvantage minorities seeking to enter the

professional school. As with the labor unions discussed

supra, these institutions “supply” the applicants for

medical schools and other professional schools. Here,

the University’s medical school has therefore sought

to remedy this disadvantage by taking into account

such prior discrimination in applying its own admis-

sion criteria.

Finally, it is appropriate to note that regulations

adopted by the U.S. Department of Health, Educa-

tion and Welfare pursuant to Title VI of the Civil

Rights Act of 1964 (42 U.S.C. §2000d) expressly

allow the utilization of racial considerations. An

educational institution which is the recipient of fed-

eral funds “. . . may properly give special considera-

tion to race, color or national origin to make the

benefits of its program more widely available .. .”

45 C.F.R. 80.5(j) (1976).

More importantly, the use of an affirmative action

program to assure access to an educational institution

where there exists no prior finding of past discrimina-

tion is expressly approved in 45 C.F.R. 80.3(b) (vii)

(6) (ii) (1976) :

“Even in the absence of such prior discrimina-

tion, a recipient [of federal funds] in adminis-

tering a program may take affirmative action to

overcome the effects and conditions which resulted

in limiting participation by persons of a parti-

cular race, color or national origin.”

In Lau v. Nichols, supra, this Court, pursuant to

Title VI, mandated that special educational benefits

be provided to Chinese children in San Francisco

who were linguistically disadvantaged due to their

race and culture. Similar reasoning should permit a

graduate or professional school under Title VI to

modify its admissions criteria that might not other-

wise adequately reflect the capabilities and potential

of minorities who have been disadvantaged by prior _

racial discrimination. Thus, public policy as expressed

in the Title VI regulations cited supra recognizes the

validity of voluntary affirmative action programs such

as the one here at issue.

As these authorities indicate, the propriety of such

programs should not be measured by the traditional

test of strict judicial scrutiny, because these programs

are aimed solely at redressing the effects of previous

racial] discrimination. Rather, as discussed more fully

infra, an intermediate equal protection test should be

applied to such remedial racial classifications.

24

8. Special admissions programs benefiting disadvantaged mi-

nority groups can be operated in an equitable and reasonable

manner.

That special admissions programs need not be sub-

ject to strict judicial scrutiny does not mean that

any such program can pass constitutional muster.

Several courts have utilized or suggested some alter-

native Fourteenth Amendment standards to evaluate

remedial racial classifications. See, e.g., Alevy v.

Downstate Medical Center, 39 N.Y.2d 326, 348 N.E.2d

037 (1976); Bakke v. Regents of the University of

California, supra, at 80-82 (Tobriner J., dissenting) ;

Germann v. Kipp, 45 U.S.L.W. 2486 (U.S.D.C. W.Mo.

April 7, 1977). See also Gunther, Foreword: In

Search of Evolving Doctrine on a Changing Court:

A Model for a Newer Equal Protection, 86 HarvL.

Rev. 1 (1972); Comment, 12 New England L.Rev.

719, 753-60 (1977).

Amicus agrees with the reasoning of the above

cited authorities that more careful scrutiny is required

here than the rational basis test ordinarily requires.

Even the remedial use of race involves potential risks.

Ostensibly remedial racial classifications may in fact

further invidious purposes. Further, any use of race

may encourage an undesired race consciousness in our

society. See United Jewish Organizations of Wil-

liamsburg, Inc. v. Casey. .... U.S. ..., 45 US.L.W.

at 4229 (March 1, 1977) (Brennan, J., concurring. )

Amicus AABA suugests these other important con-

siderations in evaluating special admissions programs.

First, there must, of course, be a showing of some

ems me wee

SS

25

need for remedial action. Prior discrimination by the

institution seeking to implement the remedial effort

would not be required. Rather, it would be sufficient

to show that a particular minority group is disad-

vantaged because of the continuing effects of prior

racial discrimination, with the result that the minority

group has been disproportionately excluded from

participation in that institution. For example, a find-

ing of need could properly be based on historical

discrimination against a particular minority group,

along with a statistically significant underparticipa-

tion of that minority group in the institution in

question.” It would be desirable if such a finding of

need could be made prior to implementation of a

program.

A second consideration is that any special admis-

sions program be strictly limited in duration. Such a

program should be discontinued when minority groups

are no longer disproportionately excluded by the nor-

mal admissions process, either because currently criti-

cized admissions tests have been replaced by validated

and racially neutral tests, or because the effects of

the prior discrimination have been dissipated and

adequate numbers of minorities are being admitted

under the regular admissions criteria.

Finally, the scope of a school’s program should bear

a reasonable relationship to the needs of each minor-

ity group affected, but in no event should unqualified

**Especially significant here would be evidence that unvalidated

standardized tests and other traditional admission criteria (such

as grades) disproportionately excluded minority applicants. Cf.

Griggs v. Duke Power Co., 401 U.S. 424 (1971).

SS

26

applicants be admitted. For example, a school may

permissibly set “targets” proportional to each of the

minority groups represented within the population

served by the school. Likewise, the school may, if it

chooses, restrict a program to disadvantaged minority

students, as did the University here. 18 Cal. 3d at

42 n8.

C. EVEN IF THE “STRICT SCRUTINY” TEST IS APPROPRIATE

FOR REMEDIAL RACIAL CLASSIFICATIONS, SUCH CLASSI-

FICATIONS ARE CONSTITUTIONALLY PERMISSIBLE.

As noted supra, AABA believes that an intermedi-

ate equal protection test is proper for use in cases

involving remedial uses of racial classifications. But,

assuming arguendo that the so-called “strict scrutiny”

test derived from Korematsu v. United States, 323

U.S. 214 (1944) is applicable, the University’s special

admission program is nonetheless constitutional. It

meets a number of compelling state interests, and,

more importantly as regards racial integration, there

is patently no less restrictive alternative than a pro-

gram that honestly and in a limited fashion considers

the race of the applicants.

1. Compelling state interests are served by remedial special ad-

missions programs.

The California Supreme Court identified the fol-

lowing state interests as supportive of the University’s

program and “compelling” (18 Cal.3d at 52-53) :

(1) Racial integration of the medical school

and of the profession;

(2) Cultural diversity of the student body,

which will assist all students to become more

27

aware of and sensitive to the specific needs of

minority communities ;

(3) Provision of successful role models for

minority children and adolescents; and

(4) Expansion of the number of doctors who

will serve in minority communities, which have

the least and poorest medical services.”

In a generalized application, each of these goals is

a valid and substantial interest that warrants a lim-

ited racial classification such as made by the Univer-

sity in this case. The discussion below focuses on the

application of these goals to Asian Americans and

the legal profession, but the validity of the concepts

extends to all minorities and all professions.

To begin with, the number of Asian American at-

torneys is woefully low, supra, at 16. The historical

reasons for this condition—almost a century of vicious

and unrelenting de jure discrimination—are set forth

more fully supra, at 5. Given such a disparity, it

is a vital and legitimate state interest to seek to inte-

grate the legal profession by special admission pro-

grams at state law schools, as California’s law schools

have cone,

The cultural diversity of the classroom is an equally

vital state interest. California, in particular, is prob-

ably the most diverse state culturally in the entire

country, with large numbers of immigrants from

"The court below rejected a fifth argument advanced by the

University, assurance of physicians who would have greater per-

sonal rapport with their patients. 18 Cal.3d at 54.

a

Europe, Asia, and Latin America. In particular, over

one-third of all Asian Americans in the United States

(almost 600,000 persons) reside in California.” Many

are immigrants or first generation descendants of

immigrants and have their own distinctive physical,

economic, and social traits that require special under-

standing or attention in the lawyer-client, doctor-

patient, or other professional relationship. The be-

ginning of tuat understanding by all students, regard-

less of race, is u. the integrated classroom where each

student hones “his ability to study, to engage in

discussions and exchange views with other students,

and, in general, to learn his profession.” McLaurin v.

Oklahoma State Regents, 339 U.S. 637, 641 (1950).

The availability of successful role models is also

an important state interest in terms of furthering

the integration of all social and political institutions.

In the Asian American community, with its one

thousand attorneys in the entire country, it is vir-

tually impossible at this time to give such role models

to Asian American children who will become the

lawyers and other skilled persons in the future. But,

as importantly, those models are important to white

and other non-white children, so that they may learn

that all professions in this country are open to, and

populated by, members of all races.

Increasing the number of Asian American attorneys

who would work in and for the interests of Asian

American communities is, likewise, a bona fide com-

pelling state interest. Those communities, like other

“Asian Americans, supra n. 1, at 16.

a ee

minority communities, currently receive the least and

lowest quality legal services. It is highly significant,

therefore, that a declared interest in community

service work was a leading criterion in the Univer-

sity’s program here in question. 18 Cal.3d at 52.

There is a fifth and related state interest which

was not recognized by the Court below but which is

of special concern to amicus AABA. That interest

is in providing professionals who can adequately

serve the unique needs of Asian American and other

minority communities with substantial numbers of

non-English speaking persons. An essential prerequi-

site to the delivery of effective legal services is the

ability to communicate between the attorney and the

client. As noted supra at 15, fully two-thirds of all

Asian Americans have a mother tongue other than

English. Often the language used is one that is

rarely, if ever, taught in American schools, such as the

Chinese and Filipino dialects.” Under these cireum-

stances, it is a compelling state interest to ensure that

such minorities receive adequate legal services by

training law students who are native speakers, 1.¢.

who are themselves members of these linguistic mi-

nority groups.

2. No less restrictive means are available to the University.

The second part of the traditional “strict scrutiny”

test is whether a less restrictive alternative to achieve

the same end is available. The court below thought

there were less restrictive alternatives available to the

‘Asian Americans, supra nl, at 6465; A History of the

Chinese in California 4 (T. Chinn ed. 1969).

University. 18 Cal.3d at 53-55. Amicus AABA respect-

fully submits this was an erroneous conclusion.

The four interests identified by the University and

accepted by the court below (18 Cal.3d at 53) are

each bottomed on one consideration: the achievement

of a greater racial minority enrollment in the medical

school. That is the one goal against which all alter-

natives, those proposed by the court below as well as

those implemented by the University, must be tested.

The California Supreme Court suggested the fol-

lowing alternatives to the use of racial classifications

(18 Cal.3d at 54-56):

1. greater flexibility in admissions standards;

2. recruitment programs aimed at encouraging

applications from “disadvantaged students of all

races” ;

3. the provision of remedial instruction for edu-

cationally disadvantaged applicants; and, finally,

4. increasing the number of medical school open-

ings by either expanding the number of available

admissions to existing institutions or increasing

the number of medical school facilities.

Unfortunately, each of these alternatives, and the

combination of them, can have only an attenuated and

marginal impact on the goal of curing minority un-

derrepresentation in the medical school.*

**Amicus assumes that the California Supreme Court did not

offer the above alternatives as a vehicle for the continued im-

plicit consideration of race. Yet as shown infra, three of the four

alternatives would be ineffective in increasing minority enroll-

ment except to the extent that they acted as a proxy for race.

oe. Oe et oe

31

The first suggestion, more flexible admissions stand-

ards, was already the University’s practice, as shown

in the court’s own opinion. 18 Cal.3d at 47. Moreover,

as Professor Sandalow has observed, such standards

would not necessarily result in an increase in the

percentage of minorities enrolled without a very sub-

stential and unlikely increase in the overall per-

centage of disadvantaged students admiticd. Racial

minorities, though often disadvantaged, are even a

minority of the class of disadvantaged Americans.

Sandalow, supra n. 20, at 690-91. Thus, to achieve

even approximately the same number of minority

admittees, the University would have to dedicate a

far higher proportion of its class spaces to “dis-

advantaged” persons.

The second and third suggestions, more “aggressive”

recruitment and more remedial instruction of dis-

advantaged students generally, suffer from the same

fatal flaw. Even if such recruitment and instruction

sueceeded, the result would be more white students

attracted than racial minorities precisely because

these minorities are a minority of the disadvantaged.

See Sandalow, id. Moreover, the suggestion is imprac-

tical in terms of time and uncertain in effect, since

it may take years of such effort to produce the same

approximate number of minority students as the Uni-

versity’s current program.

In this regard, it would be well to note the observa-

tion of the Washington Supreme Court in DeF unis

v. Odegaard, 82 Wash.2d 11, 36, 507 P.2d 1169, 1184

(1973), vacated, 416 U.S. 312 (1974) :

32

“It has been suggested that the minority admis-

sions policy is not necessary, since the same ob-

jective could be accomplished by improving the

elementary and secondary education of minority

students to a point where they could secure equal

representation in law schools through direct com-

petition with non-minority applicants on the basis

of the same academic criteria. This would be

highly desirable, but 18 years have passed since

the decision in Brown v. Board of Education,

supra, and minority groups are still grossly un-

derrepresented in law schools. If the law school

is forbidden from taking affimative action, this

underrepresentation may be perpetuated indefi-

nitely.” (emphasis added)

Finally, expansion of the number of medical school

facilities, while certainly desirable, cannot be achieved

in the short term absent a significant and prohibi-

tively expensive program of institutional construc-

tion. Further, immediate expansion of medical school

facilities will not significantly promote proportion-

ately greater numbers of minority admissions, though

it would, of course, contribute to the amelioration of

the need for more medical professionals. And addi-

tional spaces in each medical school class are strictly

limited by the existing physical plants and other re-

sources of the schools; adding more students to the

present resources would only result in a diluted and

inferior medical education for ali students.

In summary, this analysis demonstrates the un-

feasibility of the suggestions made by the California

Supreme Court regarding alternatives to the use of

racial classifications. None of the suggestions made

: ae

33

would come even close to the achievement of the pri-

mary goal of the University: the correction of the

underrepresentation of racial minorities in its stu-

dent body and, ultimately, in the medical profession

itself. Similar objections may be made to these

suggestions in the context of other professional school

special admissions programs. Thus, the court below

erred in applying the second test of strict judicial

scrutiny; the University’s program does, in fact, rep-

resent the least intrusive alternative, in light of the

end sought to be achieved.

IV

CONCLUSION

The special admission program conducted by the

University of California at Davis Medical School is

constitutional, whether measured by an intermediate

or “strict scrutiny” equal protection test under the

Fourteenth Amendment. Accordingly, the judgment

of the California Supreme Court should be reversed.

Dated: June 3, 1977.

Respectively submitted,

WiuiaM Jack Crow,

Attorney for Asian American

Bar Association of the

Greater Bay Area.

Of Counsel:

Martin 8. CHEw,

But One HINa,

Penny N. NAKATSU.