Following are excerpts from an unofficial transcript of the arguments made in the Bakke case, and question by the Supreme Court justices. ARCHIBALD COX
This case . . . presents a single vital question: whether a state university, which is forced by limited resouces to select a relatively small number of students from a much large number of well-qualified applicants, is free, voluntarily, to take into account the fact that a qualified applicant is black. Chicano, Asian or native American in order to increase the number of qualified members of those minority groups trained for the education professions and participating in them, professions from which minorities were long excluded because of generations of pervasive racial discrimination.
The answer which the court gives will determine, perhaps for decades, whether members of those minorities are to have the kind of meaningful access to higher education in the profession which the universities have recorded them in recent years, or are to be reduced to the trivial numbers which they were prior to the adoption of minority admissions programs.
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In 1969, the faculty at Davis concluded that drawing into the medical college qualified members of minorities . . . would yield important educational, professional and social benefits.It then chose one variant of the only possible method to increasig the number. It established what came to be known as the Task Force Program, following the name of a program established by the Association of American Medical Colleges, which would select . . . eight educationally or economically disavantaged, but fully qualified minority students, for inclusion among the 52 in the entering class . . . The number was increased to 16 when the size of the class was increased to 100.
I want to emphasize that the designation of 16 places was not a quota, at least as I would use that word. Certainly it was not a quota in the older sense of an arbitrary limit put on the number of member of a non-popular group who would be admitted to an institution which was looking down its nose at them.
JUSTICE POTTER STEWART: It did put a limit on the number of white people, didn't I?
COX: I think that it limited the number of nonminority, and therefore essentially white, yes. But there are two things to be said about that. One is that this was not pointing the finger at a group which had been marked as inferior in any sense, and it was undifferentiated, it operated against a wide variety of people. So I think it was not stigmatizing in the sense of the old quota against Jews was stimatizing.
JUSTICE JOHN PAUL STEVENS: Do you agree, then, that there was a quota of 84?
COX: Well, I would deny that it was a quota. We agree that there were 16 places set aside for qualified disadvantaged minority students.
JUSTICE STEVENS: No, the question is not whether the 16 is a quota; the question is whether the 84 is a quota. And what is your answer to that?
COX: I would say that neither is properly defined as a quota.
Justice Stevens, let us suppose that the student was - that the school was much concerned by the lack of qualified general practitioners in Northern California, as indeed it was, but I want to exaggerate for illustration a little bit, and it told the admissions committee: "Get people who come from rural communities, if they are qualified, and who express the intention of going back there." And the dean of admissions might well say: "Well, how much importance do you give this?"
And the members of the faculty might say, by vote or otherwise, "We think it's terribly important. As long as they are qualified, try and get 10 in that group."
I don't think I would say that it was a "quota" of 90 students for others. And I think this, while it involves race, of course - that's why we're here - or color, really is essentially the same thing. The decision of the university was that there are social purposes, or purposes aimed in the end of eliminating racial injustice in this country and in bringing equality of oppurtinity, there will be purposes served by including minority students.
Well, how important do you think it is? We think it's this important. And that is the significance of the number. That's about the only significance.
JUSTICE HARRY A. BLACKMUN: Mr. Cox, it is the same thing as an athletic scholarship?
COX: . . . I don't like to like it to terms of its importance, but I think there are a number of places that may be set aside for an institution's different aims, and the aim of some institutions does seem to be to have athletic prowess. So that in that sense this is a choice made to promote the school's, the faculty's choice of educational and professional objectives . . . So I think there is a parallel, yes.
JUSTICE WILLIAM H. REHNQUIST: Mr. Cox, what if Davis medical school had decided that since the population of doctors . . . among the minority population . . . in California was so small, instead of setting aside 16 seats for minority doctors, they would set aside 50 seats, until that balance were redressed and the minority population of doctors equalled that of the population as a while. Would that be any more infirm than the program that Davis has?
COX: Well, I think my answer is . . . that so long as the numbers are chosen . . . and they are shown to be reasonably adaptable to the social goal . . . then there is no reason to condemn a program because of the particular number chosen.
I would say that as the number goes up, the danger of invidiousness or the danger that this is being done not for social purposes but to favor one group as against another group, the risk, if you will, of a finding of an invidous purpose to discriminate against is great. And therefore I think it's a harder case, but I would have to put the particular school in the context of all schools. There are programs which are designed, for example, to train Indians to go back and teach at Indian reservations, and nobody else is taught in those.
JUSTICE POWELL: Mr. Cox, along this same line of discussion, would you relate the number in any way to the population, and, if so, the population of the nation, the state, the city, or to what standard?
COX: Well, the number 16 here is not in any way linked to population in California.
JUSTICE POWELL: It's 23 per cent. I think, for the minorities.
COX: Well, this was 16 . . . I'll be quite frank to say that I think one of the things which causes all of us concern about these programs is the danger that they will give rise to some notion of group entitlement to numbers, regardless either of the ability of the individual or of which is not always related to inability - ability in the narrow sense - or of their potential contributions to society.
But I think it's quite clear that this program was not of that character, and in fact . . . the minorities admitted to professional schools have not come anywhere near their actual percentage of the population.
The other thing I was going to say . . . is that while it is true that Mr. Bakke and some others, under conventional standards for admission, would be ranked above the minority applicant. I want to emphasize that, in my judgement and I think in fact, that does not justify saying that the better, generally better-qualified people were excluded to make room for generally less-qualified people. There's nothing that shows that after the first two years at medical school that grade point averages will make the minority students poorer medical students, and still less to show that it makes them poorer citizens or poorer people.
JUSTICE STEVENS: Mr. Cox, may I interrupt you with my question that's always troubled me?
It's the use of the term "invidous", which I've always had difficulty really understanding. You suggested, in response to Mr. Justice Rehnquist, that if the number were 50 rather than 16, there would be a greater risk of a finding of invidous purpose.
How does one - how does a judge decide when to make such a finding?
COX: Well, I think he has to consider all the facts . . .
JUSTICE STEVENS: Mr. Cox, let me make my question a little more precise. Can you give me a test which would differentiate the case of 50 students from the case of 16 students?
COX: I would have to make this turn on a subjective inquiry, I think, but I would also have too look and see what the significance of the 50 students was in the overall context of the community, its educational system, and the state.
And I would - I suppose I would be governed partly by purpose and partly by effect, but that would lead me back to purpose.
JUSTICE STEVENS: But in Mr. Justice Rehnquist's example, he was assuming precisely the same motivation that is present in this case: a desire to increase the number of black and minority doctors and a desire to increase the mixture of the student population. Why would not that justify the 50?
COX: Well, if the finding is that this was reasonably adapted to the purpose of increasing the number of minority doctors, and that it was not an arbitrary, capricious, selfish setting - and that would have to be decided in the light of the other medical schools in the state and the needs in the state: but if it's solidly based, then I would say 50 was permissable. Just as in my example, I said that educating only Indians in a program tailored to training teachers to go back to Indian reservations seems to me to be constitutional. And there are such programs, at both private and state institutions.
CHIEF JUSTICE BURGER: Are you going to address the question of other alternatives, Mr. Cox?
COX: I will in short, yes. In our view, the other alternatives suggested simply won't work.
One is to build more medical schools. Well, Davis was a new medical school, and . . . until it adopted this program, virtually no blacks or Chicanos were admitted.
One would have to increase the number of medical schools out of all reason before that would produce substantial numbers of minorities under the conventional admissions test.
A second suggestion is better recruiting. That suggestion seems to us to overlook the extensive recruiting efforts that were made during the late '60s . . . It also assumes that there are out there a lot of high-test-score, high-college-grade members of minorities that haven't applied or been found by an law school, any medical school, or any graduate school.
CHIEF JUSTICE BURGER: Well, what about . . . an additional year of make-up for all people who might be -
COX: Well, then the next suggestion is that something be done for all disadvantaged . . . I don't want to keep anything from disadvantaged or talk down any program that was for the disadvantaged; but that would not meet the spacific needs for which these programs are tailored, for two reasons:
First, the minorities are only a minor fraction of all disadvantaged. Second, all the studies show - whatever the explanation - that minority students do worse among the students of families who are economically disadvantaged, just as they do worse when you take the total ratio of applicants.
So that the program for the disadvantaged would not bring substantial numbers of minorities into these schools. WADE H. McCREE JR.
The interest of the United States of America as amicus curiae stems from the fact that the Congress and the Executive branch have adopted many minority-sensitive programs that take race or minority status into account in order to achieve the goal of equal opportunity.
The United States has also concluded that voluntary programs, to increase the participation of minorities in activities throughout our society, activities previously closed to them, should be encouraged and supported.
Accordingly, it asks this court to reject the holding of the Supreme Court of California that race or other minority status may not constitutionaly be employed in affirmative action and special admissions programs, properly designed and tailored to eliminate discrimination against racial and ethnic minorities as such discrimination exists today, or to help overcome the effects of past years of discrimination.
This court does not require a recittal of the extent and duration of racial discrimination in America from the time it was enshrined in our very Constitution, in the three-fifths compromise, in the fugitive slave provision, and in the provision preventing the importation of such persons prior to 1908. And it continues until the present day, as the overburdened dockets of the lower federal courts, and indeed of this court, will indicate, where there has been noncompliance with the decisions of this court that have rediscovered and are still rediscovering the true genius of the 14th Admenment.
Indeed, many children born in 1954, when Brown was decided, are today, 23 years later, the very persons knocking on the doors of the proffesional schools, seeking admission, about the country. They are persons who, in many instances, have been denied the fulfillment of the promise of that decision because of resistance to this court's decision that was such a landmark when it was handed down.
And this discrimination has not been limited just to persons of African ancestry. We all know too well the Asian Exclusion Acts that have discriminated against Asian-American citizens the sad history of our native American Indian population, and the treatment of our Hispanic population, sometimes called Chicanos.
Now, as we have argued in our brief, a school district may take race into account in formulating voluntary plans of integration. We have argued, and this court has held, that it need not await litigation, and it may take into account not only its own discrimination but also the consequences of discrimination elsewhere in our society, because the impact of discrimination is not limited by source or locality.
CHIEF JUSTICE BURGER: Mr. Solicitor General, is there any evidence in this record that this university, its Medical School at Davis, has ever engaged in any exclusion or discrimination on the basis of race?
McCREE: There is no evidence in the record that this University has, and, indeed, I would be surprised to have found it, according to the state of this record.
However, this court is aware, through its decisions of discrimination in the state of California, in many cases involving school districts of Low Angeles, of Pasadena, of San Francisco, and indeed there is census date revealing that about 40 per cent of the black students in California, or black persons of school age in California, grew up and spent part of their growing years in states where there was de jure segregation until it was stricken down in 1954, and where it persisted, and still seems to elude efforts to extricate it, root and branch.
And this is the significance of my statement, that the school need not be restricted to eliminating the effects of its own acts of discrimination, but may take into account socitey's discrimiation, because of the pervasiveness of its impact.
CHIEF JUSTICE BURGER: Do you include in that conduct outside the state of California?
McCREE: I would include conduct throughout the nation, because we are a nation without barriers to travel, and indeed California seems to have been - seems to be currently one of the principal recipents of the flow of population from other parts of the country. And many of them bring with them the handicaps imposed upon them by conditions to which they were subjected before they went West.
We suggest that it is not enough, really, to look at the visibile wounds imposed by unconstitutional discrimination based upon race or ethnic status, because the very identification of race or ethnic status in America today is, itself, a handicap. And it is something that the California university at Davis Medical school could and should properly consider in affording a remedy to correct the denial of racial justice in this nation.
We submit that the 14th Amendment, instead of outlawing this, indeed should welcome it as part of its intent and purpose.
There are very limited opportunities for professional and graduate education, and as my brother, Mr. Cox, has pointed out, there is a problem faced by every school, which has to apportion scarcity, of making decisions how it shall employ these resources. And the United States submits this is a decision best left to the professinal judgment of the faculties of those schools, so long as this apportionment is not motivated by invidious racial purposes.
JUSTICE STEVENS: Mr. Solicitor General, you suggest on this question of invidiousness that there should be a remand to take further evidence, to find out, among other things, why the Asian-Americans were included in the program.
Supporting the evidence shows that the reason they were included was because they had in the past been the victims of discrimination, what inference should we draw from that kind of conclusion? Would that mean the program is good or bad? Is that a sufficient justification?
McCREE: Well, we submit that a remedy is intended to right a wrong, and we think that the court should scrutinize the use of race to make certain that it is being used to remedy a wrong.
Our reference to Asian-Americans here certainly was not to suggest that they are not entitled to consideration within the program, but just to indicate that the sparseness of this record makes it difficult, if not impossible, to determine the extent of the continuing impact of racial discrimination upon that segment of our society.
If I may continue in this answer, it would appear that the Asian-American population isn't monolithic any more than any other categorical segment of the American population. Certainly, in addition to Chinese and Japanese, there are Korean, Philippine, Cambodian, Laotian, Indonesian, and the impact upon these varying segments is not known and doesn't appear from the record, except where we make a reference, I believe on page 40 of our brief, to some census statistics concerning it.
We think that this court should, and courts should appropriately, make certain that programs that have a racial component are indeed remedial. And this is the reason for the suggestion of our remand, because of the state of this particular record.
CHIEF JUSTICE BURGER: Does the record show the number of doctors, lawyers, engineers who are of Asian ancestry, Asian-Americans, in California?
McCREE: There is a reference, I believe it's page 42 of my brief . . . "29.1 per cent of Asian-American persons held professional, managerial, and administrative positions," and then it goes on to speak of laboring positions and so forth, but there's no breakdown in this professional and managerial to professional, and particularly including medical or legal practitioners.
Chief Justice Burger: Well, 29 per 29 per cent is substantially higher than their proportion of the total population. Is that so?
McCREE: This would appear to be so, but it would be significant only if it were a monolithic community. It might turn out that among Koreans the figure was less than 1 or 2 per cent. Or among Taiwanese, or among Cambodians or Laotians.
And it's such a generic category of Asian-Americans that we submit that this is something that a court might want to look at.
CHIEF JUSTICE BURGER: Well, on its face, the 29 per cent hardly would support any ready conclusion that there's pervasive discrimination there's a pervasive discrimination against people of Asian ancestry. Isn't that so?
McCREE: On this record, this is possible. But we know how sparse this record is . . .
And the interest of the United States as amicus curiae is in the principle that there may be remedial, voluntary remedial programs that are race-conscious, minority-aware, to race-conscious, minority-aware, to in order to fairly evaluate credentials of persons who may have suffered from this.
And we are interested in having this principle cleared, and the Supreme Court of California has said that the race of an applicant or of other applicants may not be taken into consideration for any purpose . . .
I would like to conclude that this is not the kind of case that should be decided just by extrapolation from other precedents: that we are here asking the court to the use the full dimensions of the 14th Amendment that was intended to afford equal protection.