# Amicus Brief — University of California Regents v. Bakke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1687%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 265

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1687%3A18. Public record. Not legal advice.