The regents of the university of california V. Bakke

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(UC) Brief for the Cleveland State University Chapter of the Black American Law Student Association

  1. Use of Racial Classifications Does not Violate the XIV Amendment Under any Appropriate Test

    1. Racial classifications are only subject to strict scrutiny/compelling interest test when invidious discrimination against minorities

      1. Should be subject to rational basis test

      2. Equal protection cases have also been subjected to “mean scrutiny test” based on actual purpose from legislative history

    2. Racial classifications have never been held to be per se unconstitutional – have been upheld outside preferential admissions programs

    3. Racial classifications are not restricted to remedying past constitutional violations and illegal discrimination (Japanese relocation cases did not rely on past discrimination)

    4. If courts can use racial classifications to order remedies then citizens or government actors should be able to use for voluntary affirmative action purposes

    5. Should not be subjected to strict scrutiny because there is no fundamental right and there is no suspect classification - only racial classifications used against minorities are subject to strict scrutiny

  2. Even if Subject to Strict Scrutiny, Preferential Admissions Programs Serve a Compelling State Interest and are Therefore Constitutional

    1. If purpose was to disadvantage minorities then it would be a violation. But to “achieve a societal goal of racial peace and integration through improvement of the opportunity of a racial minority” is not an equal protection violation because serves compelling interests

      1. Essential interest in achieving minority representation in student body

        1. Education value in exposure to differing viewpoints, backgrounds, etc.

        2. Student bodies should be representative of “outside world”

        3. Serves as a “visual reminder” to professors and administrators that can’t ignore the problems faced by minority population

      2. Interest in achieving minority representation in professions and professional schools

        1. Offset disparate treatment in underserved minority communities

        2. Increase prospects of income in minority communities – improves self-respect and provides role models

        3. Minority professionals are better able to relate to and serve minority communities

    2. Professional schools have a responsibility to eliminate minority under-representation caused by over-reliance on traditional numerical criteria which disproportionately exclude qualified minority applicants

      1. Schools already depart from rank ordering to consider legacy status, donors, athletes, etc.

      2. Given country’s social problems, racial diversity is a more important factor than any of these other criteria (legacy status, etc.)

      3. Numerical indicators are unreliable predictors and are culturally biased so giving them determinative weight should be de jure discrimination

      4. Racial discrimination in primary and secondary schools accounts, in part, for minority under-representation in colleges and graduate schools so professional schools should sensibly compensate for this discrimination – use of suspect criteria in light of discrimination makes them blameworthy even without past discrimination themselves

    3. Universities have duty under Civil Rights Act to take affirmative steps to recruit minorities for faculty and administrative positions – need preferential admissions programs to provide increase in minority applicant pool for these positions. So use of racial classification is required to meet federal laws

  3. Preferential Admissions Programs are Narrowly Tailored

    1. All the interests served are racially oriented so use of race is appropriate to serve those interests

      1. Because of discrimination and cultural differences, impossible to judge minority candidates by same standards as majority candidates

      2. Racial classifications are essential for neutral admissions programs

    2. No adequate alternatives to racial classifications

      1. Open enrollment would have same impact as regular admissions programs because minority students would not survive first year because not academically prepared although as intelligent and qualified as majority students

      2. Increase in seats would only increase application from majority students and would still exclude minorities – would just get more applications from qualified majority students

      3. Recruiting, remedial school, and summer preparatory programs are essential but will not affect admissions disparities. These also use racial classifications

      4. Focus on disadvantage would not serve goal of minority representation because really just a consideration of economic disadvantage – would exclude minority applicants who were not disadvantaged economically and would include non-minorities who are economically disadvantaged. Economic disadvantage does not account for discrepancies in admissions criteria – can only be explained by racial discrimination

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