The Supreme Court hinted strongly yesterday that it may rely on a civil rights law rather than the Constitution when it rules on the special admissions program that led the University of California Medical School at Davis to reject Allan P. Bakke.
The law gives stronger support than the 14th Amendment to Bakke's claim that the school improperly turned him away in 1973 and again in 1974 solely because he is white.
The possibility that the case will not develop into a constitutional milestone began to form during oral arguments last Wednesday and crystallized yesterday in the following single sentence, which the court routinely printed in its orders list:
"Each party to thia cause is directed to file within 30 days a supplemental brief discussing Title V1 of the Civil Rights Act of 1964 as it applies to this case."
If the court actually decides on the basis of the law, Congress theoretically could amend Title V1 to permit the school to continue its special admissions program, which reserved 16 of 100 places mainly for blacks, Hispanics and Asian-Americans who do not qualify for admission under normal procedures.
But such an amendment doesn't appear to be in the cards. "We can't win a fight in Congress to change Title V1 our way," said Joseph L. Rauh Jr., who represented 40 organizations that urged the court to uphold the program. The court directive leaves him "very troubled, " he told a reporter.
Title V1 says' "No person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance". The medical school at Daviis receives such assistance.
The 14th Amendment says simply that no state "shall . . . deny to any person within is jurisdiction the equal protection of the laws."
A trial judge ruled for Bakke on the ground that the special admissions program violated both Title V1 and the 14th Amendment. But in affirming, the California Supreme Court relied solely on the equal-protection clause.
Yesterday'scourt directive is unusual because it came after, ratherthan before oral arguments. Court observers told a reporter they viewed it as a good omen for Bakke and a bad one for the particular two-track admissions program at Davis. They emphasized, however, that nothing is certain until the court hands down a decision.
Rauh said civil rights forces are strong enough to block possible attempts to weaken Title V1.
During the oral arguments, justice William J. Brennan Jr. said in an exchange eith Reynold H. lliam J. Brennan Jr. said in an exchange with Reynold H. Colvin. Bakke's counsel, "Well, ordinarily, we don't decide constitutional questions if we can affirm what you ask us to do on a federal statutory ground."
Justice John Paul Stevens asked Archibald Cox, counsel for the university, whether the court "must consider the Title V1 questions before getting to the constitutional question?"
"No, because the Supreme Court of California ruled only on theconstitutional question," Cox replied.
Justice Brennan asked Solicitor General Wade H. McCree Jr. if he agreed with Cox. McCree, who argued for the United States that the university could take race into account to remedy past discrimination, appealed to the court not to decide the case on the statutory ground.
". . . We are here asking the court to give us the full dimensions of the 14th Amendment that was intended to afford equal protection," McCree said.
Justice Byron R. White told Colvin that "it could be that the Civil Rights Act forbids things that the 14th Amendment itself wouldn't."
Chief Justice Warren E. Burger asked Colvin if he thinks "it is arguable that the California Supreme Court should have decided the statutory question before reaching the constitutional question?"
"I have heard the argument made." Colvin said, If the court sends the case back to the lower court with an instruction to review its decision in light of Title V1, Bakke's case will be "even stronger," Colvin told White.