The University of California will tell the Supreme Court today that it should not decide the widely publicized Allan Bakke discriminiation case on basis of the Civil Rights Act of 1964, which is widely regarded as more favorable to Bakke's cause than is the 14th Amendment.
The university's contention will be that the law did not authorize Bakke to file his private lawsuit charged that the special admissions program for racial minorities at the medical school at Davis violated Title VI of the act by denying him admission in 1973 and 1974 solely because he is white.
The outlines of a university brief to be filed in court today were disclosed in Berkeley, Calif., by Donald L. Reidhaar, general counsel of the University of California Board of Regents, in a telephone interview with The Washington Post.
The university's claim that Bakke lacked legal standing to sue is rejected by the Justice Department, in a friend-of-the-court brief submitted last night, and by Reynold H. Colvin, Bakke's lawyer during a telephone interview in San Francisco. Colvin also will file a brief today.
Title VA 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 recieving federal financial assistance." The university recieves such assistance.
The much more general 14th Amendment bars a state from denying "to any person within its jurisdiction the equal protection of the laws."
Bakke, in his suit in state court in California, complained that both TItle VI an the 14th Amendment were violater by the special admissions program, which reserved 16 to 100 places mainly for blacks, Hispanics and Asian-Americans. In the years at issue, the medical school accepted none of the 245 whites who sought admission under the special program on the grounds that they were disadvantaged.
The state judge agreed with Bakke. The California Supreme Court also ruled for the 37-year-old engineer - but solely on the constitutional ground.
The Title VI question was submerged for about a year, but surfaced last month in oral argument in the Supreme COurt.
Justice Byron R. White told Bakke's lawyer that "it could be that the Civil Rights Act forbids things that the 14th Amendment itself wouldn't.
Justice William J. Brennan Jr. cited the court's policy: ". . . Ordinarily, we don't decide constitutional questions if we can affirm . . . on a federal statutory ground."
Five days later, the court directed the university and Bakke to file supplemental briefs discussing Title VI "as it applies to this case."
University counsel Reidhaar told a reporter that the Supreme Court only once has reached the question of whether a private party - rather than a governmental agency - can sue under Title Vi.
He cited a case, decided in January, 1974, in which the court ruled for 1,800 San Francisco public school pupils of Chinese ancestry who did no speak English. They sued the school board, saying it violated their Title VI rights by denying them supplemental English courses.
The court ruled unanumously for the students. A concurring opinion signed by three of the nine justices said in a footnote that the defendants do not contest the standing of the petitioners [the children] to sue as beneficiaries of the . . . contract" under which federal finds flow to the school board.
In the government broef filed last night, Attorney General Griffin B. Bell and Solicitor General Wade H. McCree cited the same case in arguing that Bakke was free to sue - but that the unviersity was free to adopt "any minority-sensitive program that is consistent with the 14th Amendment."
The government not only cited the 1974 case, Lau vs. Nichols, in contending that private persons may sue to enforce TItle VI, but argued that the university had abandoned its right to challenge Bakke on this issue by failing to raise or litigate it in the state courts.
In addition to not claiming in the lower courts that Bakke had no right to sue for enforcement under Title VI, the government recalled, the university had asked the trial judge to declare the special admissions program legal - under Title VI.
At another point the government sais that private enforcement suits are consistent with Titile Vis "underlying purposes," such suits being "an essentaial aid enforcing civil rights statues," and individual violations being "too numerous to be death with effectively by agency enforcement alone."
But the government's principal position was the one it first had stated in its main brief to the Supreme Court in September: under the 14th Amendment, a state university can take race into account in admissions programs seeking to remedy past societal discrimination.
The new brief, renewing a plea that the Bakke case be sent back becasue of a defective record, said that Title VI doesn't change anything because it is consistent with the amendment.
Bakke's lawyer, Colvin, told a reporter that he, too, saw nothing in the 1974 Lau decision to support the university's claim that Bakke lacked standing to sue.
The university's Reidhaar said his brief will argue that even if Bakke had standing, he had not compiled with the law's requirement to exhaust administrative remedies before filing a lawsuit.
Colvin, however, said that he "remedy" prescribed by federal regulations - shutting off government funding to the university - was innappropriate. The remedy Bakke wanted, he pointed out, was admission.