MOSK, J. I dissent.
The majority opinion, I regret to say, was preordained. Any court that would stray so far from basic principles of constitutional equal protection as to approve a rigid racial quota system in public employment (Price v. Civil Service Com. (1980) 26 Cal.3d 257 [161 Cal.Rptr. 475, 604 P.2d 1365]) can be expected to accept any program of race consciousness in public education. But repetition does not disinfect, it exacerbates legal and social error.
The majority, armed in adamant, insist upon turning the calendar back several decades. They have chosen to revive the indefensible practices of pre-Brown days (Brown v. Board of Education (1954) 347 U.S. 483 [98 L.Ed. 873, 74 S.Ct. 686, 38 A.L.R.2d 1180]) when skin pigmentation and ethnicity were the qualifications that determined a child’s school. They have rejected the plea of Justice Harlan in Plessy v. Ferguson (1896) 163 U.S. 537 [41 L.Ed. 256, 16 S.Ct. 1138], for a colorblind America, the rallying cry for civil rights martyrs from Wil[892]liam Lloyd Garrison to Martin Luther King. They have also inadvertently resurrected two of the most universally discredited cases in modern American legal history: Korematsu v. United States (1944) 323 U.S. 214 [89 L.Ed. 194, 65 S.Ct. 1375], and Hirabayashi v. United States (1943) 320 U.S. 81 [87 L.Ed. 1774, 63 S.Ct. 1375]. (See, e.g., Rostow, The Japanese American Cases—A Disaster (1945) 54 Yale L.J. 489.) In those two wartime cases, the high court legitimated the use of race as a basis for governmental action and as a result it allowed the government to stigmatize an entire race by assuming the disloyalty of all of its members. In University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733], the opinion of Justice Powell, upon which the majority rely, approved race as a factor that may be considered in school admissions, citing Korematsu and Hirabayashi as authority for the proposition that not all racial or ethnic classifications “are per se invalid.”
The approval of consideration of race as a factor in public education is in stark contrast to the enlightened views of the then majority of this court more than three decades ago, prior to emergence of the civil rights movement. In invalidating the state’s miscegenation statute, Justice Traynor observed that the “right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals .. . the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race.” (Perez v. Sharp (1948) 32 Cal.2d 711, 716 [198 P.2d 17].) To the contention that racial characteristics may be a factor in measuring rights, Justice Traynor wryly observed that “Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.” (Id., p. 725.) If the right to marry is the right of individuals, not of racial groups, a fortiori the right to become an educated person through a public school is strictly individual and not subject to approval or rejection because of ethnic characteristics.
The Traynor opinion in Perez was not an aberration. Until a newly constructed majority prevailed in Price, this court had consistently maintained that race or similar characteristics are not a qualification or disqualification for the benefits of society. Chief Justice Gibson declared in James v. Marinship (1944) 25 Cal.2d 721, 739 [155 P.2d 329, 160 A.L.R. 900], that racial discrimination in admission to union membership is “contrary to the public policy of the United States and this [893]state.” In Hughes v. Superior Court (1948) 32 Cal.2d 850, 856 [198 P.2d 885], affirmed (1950) 339 U.S. 460 [94 L.Ed. 985, 70 S.Ct. 718], Justice Schauer wrote for this court: “because race and color are inherent qualities which no degree of striving . . . could meet, those persons who are born with such qualities constitute, among themselves, a closed union which others cannot join. It was just such a situation—an arbitrary discrimination upon the basis of race and color alone, rather than a choice based solely upon individual qualification for the work to be done—which we condemned in the Marinship case.” Again in Sei Fujii v. State of California (1952) 38 Cal.2d 718, 733 [242 P.2d 617], Chief Justice Gibson declared, in striking down the alien land law, that the Constitution could not permit “a classification which operates to withhold property rights from some aliens, not because of anything they have done or any beliefs they hold, but solely because they are Japanese and not French or Italian.” In the same case, Justice Carter discussed at length the fallacy “that the race or nationality of a person is a proper basis for the classification of those who are ineligible to own land or other property.” (Id., p. 752.) And recently in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 475 [156 Cal.Rptr. 14, 595 P.2d 592], Justice Tobriner wrote for a majority of this court that an arbitrarily discriminatory employment policy favoring heterosexuals over homosexuals violated article I, section 7, subdivision (a), of the California Constitution. The foregoing judicial harbingers of a prejudice-free society are now sacrificed on the altar of a new race-consciousness that subordinates the merit of the individual to the common denominator of all who share his or her ethnicity.
The majority opinion is based primarily on a belief that the admission policy at Davis does not on its face offend the federal Constitution. It conveniently overlooks (a) provisions of the California Constitution which are violated by a race-conscious scheme, and (b) facts which demonstrate that the Davis policy, even if some persons may believe it to be constitutional on its face, is unconstitutional as applied.
Justice Paras ably pointed up the state constitutional issue for the Court of Appeal in this case. He wrote, inter alia: “Since here the University’s admissions program does not use quotas, it does not violate the Fourteenth Amendment’s equal protection clause as viewed by the federal Bakke majority. That does not however end our inquiry, for the California Constitution must also be consulted to determine whether the trial court’s decision can and should be supported on independent [894]state grounds (cf. Serrano v. Priest (1976) 18 Cal.3d 728, 760-768 [135 Cal.Rptr. 345, 557 P.2d 929]). As earlier noted the trial judge rested his decision on the Fourteenth Amendment, and also on California Constitution, article I, section 7, which provides: ‘(a) A person may not be deprived of life, liberty, or property, without due process of law or denied equal protection of the laws. [If] (b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.’
“Most recently in People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108], our Supreme Court summarized the independent state grounds doctrine as follows: ‘The standard to be applied in resolving this issue is also now settled: “in the area of fundamental civil liberties—which includes not only freedom from unlawful search and seizure but all protections of the California Declaration of Rights—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental civil rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.” ([People v.] Longwill, at p. 951, fn. 4, of 14 Cal.3d [123 Cal.Rptr. 297, 538 P.2d 753]; accord, Serrano [v. Priest], at p. 764 of 18 Cal.3d; [People v.] Hannon, at p. 606 of 19 Cal.3d [138 Cal.Rptr. 885, 564 P.2d 1203].)’ (Italics added.)
“Section 7 of article I, is of course included in California’s declaration of rights. And even though the right to an education, the subject of our inquiry, is not expressly guaranteed by our Constitution, it is nonetheless ‘a fundamental interest’ (Serrano v. Priest, supra, 18 Cal.3d at p. 766), as to which ‘[i]n applying our state constitutional provisions guaranteeing equal protection of the laws we shall continue to apply strict and searching judicial scrutiny .. .’ (id., at p. 767); it is among ‘those individual rights and liberties which lie at the core of our free and representative form of government’ (id., at pp. 767-768).”
For the foregoing reason and those stated in this court’s six-to-one opinion in Bakke v. Regents of University of California (1976) 18 [895]Cal.3d 34, 49 [132 Cal.Rptr. 680, 553 P.2d 1152] (as affd. in substance in University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733]), and since classification by race is involved, we are governed by the rule of strict scrutiny. The burden shifts to the state to establish that the use of a racial classification serves a compelling university interest, and that strict scrutiny reveals no reasonable way to achieve the state’s goals by means which impose a lesser limitation on the persons disadvantaged by the classification. There can be no doubt that there are persons disadvantaged by the Davis scheme, i.e., those who are not Asian, black, Chicano, native American or Filipino—in other words, a majority of the residents of our state are disadvantaged. As will appear, in my opinion the state has failed to meet its burden. The university admission program is of dubious validity on its face, and the evidence is overwhelming that it totally fails as applied.
In attempting to meet its burden of proving a compelling state interest, the Davis administration initially denies it gives preferential treatment on the basis of race; it contends that ethnicity is only one factor considered in admissions. Obviously no one takes that sophistry seriously, least of all my colleagues. Indeed, they concede that “the University-has placed considerable weight upon racial or ethnic factors” but insist nothing prohibits such a practice. They proceed to offer three conflicting theories purporting to justify giving preference to minority applicants.
The majority opinion raises the issue of “disproportionate underrepresentation of minorities” at Davis. This is a strange new concept that is creeping into legal literature as an apologia for preferential treatment of applicants to public institutions. No one has cited any constitutional authority that requires or permits some kind of statistical parity among applicants on the basis of race, color, sex or national origin; if there can be no proportionate representation, it seems obvious there can be no disproportionate underrepresentation. No valid formula has been devised to ascertain out of every 100 admittees how many should be male or female; black or white; Catholic, Protestant, Jewish or Buddhist; German, Irish, Italian, Japanese, Mexican, Russian or Swedish. Indeed any such formula would make a mockery of the traditional democratic theory of selection on the basis of individual merit. And it would violate the condemnation of quotas in Justice Powell’s opinion in University of California Regents v. Bakke, supra, 438 U.S. 265, upon which the majority heavily lean.
[896]A second, presumably alternative rationale for preferential treatment is reparation for past societal discrimination against ethnic minorities. This theory conceivably would be justified on an individual basis if (a) the minority applicants personally had been the victims of educational discrimination, and (b) the rejected majority applicants, including DeRonde, had personally committed or had been the beneficiaries of acts of discrimination. There is no evidence of either, let alone both, of those elements.1 There is, as Professor Bernard Meltzer put it in a related context, an “absence of an individuated connection between remedy, on the one hand, and benefit and injury, on the other . . . . ” (Meltzer, The Weber Case (1980) 47 U.Chi.L.Rev. 423, 433.) The burden falls only on those “who have no demonstrable connection to the wrong being redressed.” (Kitch, The Return of Color-Consciousness to the Constitution: Weber, Dayton, and Columbus 1979 Sup.Ct.Rev. 1, 11.) Professor Kitch raises this concern: “Will this not be a particular problem for the young, who, having grown up on this side of the civil rights revolution, disassociate themselves from the racism of the old America, and may be surprised to learn that they are asked to pay for it?” (Id. at p. 13.)
A third alternative theory in the vain effort of the university to meet its burden is the purported desire to achieve diversity in the student body. With mere superficial consideration that concept may seem beguiling. It does not, however, withstand strict scrutiny.
I assume that not even a fanatical advocate of the modern racism would insist that achieving a diverse student body takes precedence over freedom of speech, freedom of religion, freedom of assembly, or the right to due process. Why, one is impelled to ask, should that asserted academic goal—even if desirable—assume a higher priority than the constitutional guarantee of equal protection? This selectivity over which constitutional guarantees are to be preserved, and which sacrificed, arrogates to an elite academic committee an awesome power never previously countenanced.
[897]Professor Alan Dershowitz of Harvard has pierced the facade known as the diversity rationale for preferential treatment of admission applicants. “The incredible staying power of the ‘diversity-discretion’ model is due as much to the model’s marvelous ability to mask genuine institutional criteria, which cannot or will not be publicly articulated, as it is to any deep-seated belief in the value of diversity as an educational desideratum .... The raison d’etre for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals .... The ‘diversity-discretion’ model thus subverts the ideals of responsibility and candor that are the hallmarks of any institution of learning in an open and democratic society.” (Dershowitz & Hanft, Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext? (1979) 1 Cardozo L.Rev. 379, 404, 407.)
As Professor Dershowitz points out, even if diversity were a significant factor in enhancing the educational process—which is dubious—it would not follow that race adds to that diversity. “An applicant’s potential ability to contribute to the diversity of the student body is uniquely a function of his or her individual experiences, interests, approaches, talents, and characteristics. The prep school black brought up in a middle-class neighborhood by professional parents might contribute far less diversity than a Hasidic Jew from Brooklyn, a Portuguese fisherman from New Bedford, a coal miner from Kentucky, or a recent emigre from the Soviet Union.” (Id., p. 419; see also fn. 1, ante.) Pie therefore found the conclusion inescapable that to give members of a minority race a preference in admissions is simply to reward them for the accident of their race, a fact that has no relevancy to the purported goals of education for service in a profession. In addition, “To reward some persons for the accident of their race is inevitably to punish others for the accident of theirs.” (Id., pp. 420-421.)
Finally, there are untried alternative and less drastic methods to achieve the goals purportedly sought by the university. If Davis genuinely seeks to aid those who need assistance in obtaining a professional education, it need not resort to the device of weighing race as a factor, either to favor those of certain specified races or to penalize those who are not included in the preferential categories. For example, Davis could consider the type of program undertaken at Temple University Law School, which in its enrollment weighs consideration “‘for the dis[898]advantaged, whatever their color or ethnic background, who show exceptional promise.’ ... ‘[P]laces are open to just about anyone who can demonstrate that he or she has overcome some significant deprivation, whether it is poverty, language or blindness.’” (Dershowitz, op. cit. supra, p. 423, fn. 132.)
Under that type of program, opportunities open up equally for all victims of deprivation: the black from the inner city, the Chicano from the farm fields, the oriental refugee from Asian communism, the Caucasian whose parents speak a foreign language at home, the student of any ethnic heritage who has conquered physical disability or whose family has existed below the poverty level. The actual handicap or adversity overcome may be a factor in admission consideration, not the color of skin or the surname.2
Since none of the theories advanced by the university, and accepted by the majority, meet the burden of the strict scrutiny test, I conclude the admission scheme is unconstitutional under the equal protection clause of the California Constitution, i.e., article I, section 7, subdivisions (a) and (b). We need go no further. Nevertheless I point out in addition that the university admission policy is also unconstitutional as applied. (Brock v. Superior Court (1939) 12 Cal.2d 605 [86 Cal.Rptr. 805]; Startrack, Inc. v. County of Los Angeles (1976) 65 Cal.App.3d 451 [135 Cal.Rptr. 283].)
The majority, in their reliance on the opinion of Justice Powell in the federal Bakke case, appear to accept the university’s contention that race is merely one isolated, presumably minor factor in the selection process. The facts are otherwise. The plaintiff presented persuasive evidence that the Davis admissions committee was predisposed to place undue emphasis upon race. Four of the six members of the committee not only were of minority ethnic backgrounds themselves but also were or had been active in organizations dedicated to increasing the number of admittees from their particular racial group. Under the circumstances the committee’s objectivity was suspect at the outset.
When to that predisposition are added the figures of actual admissions to Davis for the year when plaintiff applied, and for the [899]immediately preceding years, a clear discriminatory pattern emerges. The DeRonde year was 1975-1976. For that school term 1,117 white males applied for admission; 156, or 14 percent were accepted. At the same time, 494 minorities applied; 142, or 29 percent, were accepted. Thus nearly 48 percent of the entering class was comprised of minorities.
The foregoing would be unobjectionable if the selected minority members were distinguished by criteria other than race. Again, the facts, regrettably, are otherwise. The mean Law School Admissions Test (LSAT) score for minorities was 562, for white males 676, an average of 114 points higher. The mean grade point average (GPA) for minorities was 3.27, for white males 3.57.
For previous years, the figures are even more disparate. In 1972, only 5 percent of white male applicants and 7 percent of white female applicants were admitted, compared with 33.6 percent of minority applicants. In 1973, the figures were 8 percent of white male applicants and 6 percent of white female applicants, compared with 26 percent of minority applicants; in that year the mean LSAT was 565 for minority admittees compared with 692 for white male admittees, and 3.17 GPA for minorities compared with 3.43 for white males.
If more minority applicants, even though less qualified, could be admitted without impacting on others better qualified, we could remain unconcerned. But the disparate figures, year after year, have had a significant cumulative effect on the student body demography. In 1969-1970, the minority percentage of the total student population was 13.1 percent, By 1972-1973 the minority percentage rose to 41.6 of the entire student body. Again I stress that the increase would be laudable if, absent consideration of race, the minority admittees had equal objective qualifications, but the figures demonstrate otherwise. Thus while whites generally and white male applicants particularly scored consistently higher on the LSAT and GPA, their representation in the whole Davis student body decreased in a mere three years from 86.9 percent in 1969 to 58.4 in 1972. This demonstrates that race was the most important factor in admission decisions and, I submit, constitutes invidious discrimination, based on race, against whites generally and white males in particular. The circumstantial evidence is overwhelming that this overt discrimination has been practiced deliberately by the admissions committee acting for the administration of this tax-supported university.
[900]The evidence further includes the following: 74 persons were admitted with lower credentials than this plaintiff, 72 of them minority applicants. In the lower third of the class—an index figure of 2.63 down to 2.24—57 admittees were selected, all of them minority applicants, although 1,400 better qualified Caucasians, including plaintiff, were rejected.
Thus the trial court was in error in finding from the evidence that plaintiff would not have been admitted even absent the school’s race-conscious program. The plaintiff graduated from Davis as an undergraduate with a 3.47 GPA, 575 on the LSAT and a predicted first year average of 2.70, higher than 72 ethnic minorities admitted. His LSAT was higher than 88 admittees, 78 of whom were minorities. His writing ability score was higher than 36 admittees, 33 of whom were minorities. It seems clear that without the preferential treatment of applicants —acceptance of some and rejection of others on the basis of race—this plaintiff would have been included among the successful applicants in 1975.
There are other relevant matters relating to the unconstitutionality of the Davis scheme as applied. The choice of the particular races entitled to preferential treatment is itself suspect. There is every indication that the races to be included in the preferential group, and those excluded, are determined to a considerable extent by responsiveness to the pressure emanating from well-intentioned but self-serving organizations. For example, no ethnic group in our society is better adjusted, completely accepted and more successful academically and economically than Asian-Americans.3 Let me emphasize that I relate this with profound admiration, in view of the tragic record of past legal and extralegal discrimination against those in earlier generations who came or were brought here from the orient. (E.g., see Chuman, The Bamboo People: The Law and Japanese-Americans (1976) p. 72 ff.) The United States Commission on Civil Rights reports that as of 1970 only 13.5 percent of majority males in the United States had completed at least four years of college, but 19 percent of Japanese-American males, 25 percent of Chinese-American males and 15 percent of Filipino-American males had a college education. Among females, the percentages of college educated were 8.1 percent for the majority, 11 percent for Japanese-Americans, 17 percent for Chinese-Americans and 27 percent for [901]Filipino-Americans. Even among the lesser numbered groups, the percentages of college-educated exceeded that of the majority: 36.2 of Korean-Americans, 24.4 percent of the new arrivals from Vietnam. (U.S. Commission on Civil Rights, Success of Asian-Americans: Fact or Fiction? (Sept. 1980) pp. 3-4.)
Economically, Asian-Americans are doing very well.4 While the mean annual income of employed persons reported for the preinflation year 1970 for majority males was $7,375, it was $8,183 for Japanese-Americans, $7,553 for Korean-Americans, and only slightly less for Chinese-Americans and Filipino-Americans. Every group of employed Asian-American females earned more than Caucasian females {id., p. 11).
None of the foregoing would suggest to any objective observer that Asian Americans require preferential treatment in publicly financed schools of higher learning. Why, then, are they included as a favored racial group? There is a hint of the answer in the Commission on Civil Rights publication cited above. When the Solicitor General filed a brief for the government in the federal Bakke case, he raised questions as to whether Asian Americans should be included in the Davis quota. The government’s position was changed prior to oral argument, the commission concedes, as the result of “extensive lobbying efforts,” including remonstrations with both the Justice Department and the White House {id., pp. 22-23).5
I do not intend to single out Asian Americans for comment on pressure activities. Every ethnic group engages in similar efforts to assure its inclusion among those who are to be given preferential treatment, and few political, academic—and more recently, judicial—institutions [902]appear to be forthright enough to withstand such importunity.6 On many a campus, a combination of demonstrations, picketing, pamphleteering, sit-ins, walk-outs, and similar agitation—including demands to actually select admittees—by students and nonstudent sympathizers, appears generally and in this instance to have induced the administration to neglect its responsibility to operate a tax-supported institution on a basis of equal rather than preferential treatment.
The briefs submitted in this case are interesting; they reveal how well-meaning organizations will proclaim devotion to principle, but rise above principle when an opportunity for advantage appears. An amicus brief has been submitted by a group entitled Chinese for Affirmative Action, which declares itself dedicated for more than a decade to the laudable objectives of “eradication of racial discrimination against Chinese in America and for the promotion of equal opportunities for all minority groups.” A similar amicus brief has been submitted by the Asian American Legal Defense and Education Fund, which declares it was formed to protect Asian Americans in “the right to equal educational opportunity.” And the Mexican-American organizations’ brief (on behalf of the Mexican-American Legal Defense and Educational Fund, the National Chicano Council on Higher Education, the Association of Mexican-American Educators, Raza Administrators and Counselors in Higher Education, the League of United Latin American Citizens, and the National Council of La Raza) indicated their purpose in existing is “the goal of equal educational opportunities for Hispanics.” So, too, has a letter brief from the Native American Law Student Association declared its devotion “to equal educational opportunities” for Native Americans and other minorities. (Italics added.) It is significant that every organization purporting to speak for minorities concedes it was formed to press for equal opportunity in education. Not one was organized to demand, as is being sought here, preferential consideration on the basis of race.
With sadness one observes how far these groups have strayed from the wisdom of the great American, Frederick Douglass, born in slavery: “I base no man’s right upon his color and plead no man’s right because [903]of his color.” (4 Foner, The Life and Writings of Frederick Douglass (1955) p. 117.) And from Justice Frankfurter, who declared that in the law what mattered “‘was excellence in your profession, to which your father or your face was equally irrelevant.’” (Meserve, The Quality of Intellectual Competition (1973) 25 J.Leg.Ed. 378, 383.)
Although it is improper for government or public institutions to allocate upon ethnicity, I emphasize that it is proper in our diverse society for groups to perpetuate their ethnic culture and racial identity. The danger arises when ethnic pride gives way to ethnic chauvinism and ultimately to ethnic demagoguery.
The Governor and several members of his administration have also filed an amicus brief, concluding with the contention that “the First Amendment right to a diverse student body” must prevail over the equal protection clause of the state Constitution. That the First Amendment creates some implied enforceable “right to a diverse student body” will come as a surprise to constitutional scholars. That such a nebulous “right,” newly constructed for this litigation, takes precedence over the right of all persons in California to be accorded equal protection and privileges mus); be rejected as completely untenable. Despite the views expressed in that brief, one would hope that equal protection is alive and well, and still enjoys a high priority, in contemporary California.
Finally, an amicus brief has been submitted in support of the university by the American Civil Liberties Union (ACLU). It raises remarkable arguments based on “equality, academic freedom and independent interpretations of state constitutions.” The contentions are irreconcilable with logic, for it is plaintiff DeRonde who asserts he is a victim of inequality and academic obfuscation—not the university—and the Court of Appeal, the opinion of which is superseded by the majority, relied entirely upon the California Constitution. The ACLU, as it did in its unsuccessful attempt to frustrate Alan Bakke’s efforts as an individual to win admission to medical school, has once again chosen the uncharacteristic role of supporting an establishment program based on recognition of group characteristics and values.as opposed to the right of persons to be treated and evaluated as individuals.
A program of race-consciousness necessarily arouses divisive debates over purported group characteristics. An attitude of racial superiority is candidly expressed by admissions officers of some law schools. The following excerpts from a legal publication (L.A. Daily J. (Nov. 24, [904198]0)) reveal a typical policy in defense of special treatment and preferential admissions:
“‘If we can’t have an affirmative action program we would radically reduce the number of minority students we could have,’ said ... the admissions director at Boalt Hall School of Law in Berkeley. [1Í] Last year, Boalt admitted 67 minority students into its entering class. But only seven of those students would have been admitted without an admissions policy that allows a discount on test scores and grades for minority applicants. ... [1i] ‘In the highly competitive process for admission to this school, if those students were not given some special consideration it’s unlikely that they could survive that competitive process.’" (Italics added.)
The foregoing program raises a basic question: when the number of available admissions in a public institution is limited, in a constitutional society is there any rational reason to prefer those who cannot survive the competitive process over those who do survive that process? It should be readily apparent that such preference cannot be reconciled with principles of equal protection.7
As Professor John Hart Ely posed the issue in his book Democracy and Distrust (1980), page 170: “no matter what we call it—a preference, a quota, a quest for diversity—weighing, say, blackness affirmatively necessarily means that others are going to be denied the opportunities in question because they were not born black.” And again he observed that “any affirmative action plan that counts blackness affirmatively, even in the context of numerous other factors, necessarily results in the rejection of some applicants who would not be rejected were they black, and in that sense are being turned away ‘only’ because they are not black.” {Id. at p. 257, fn. 102.)
[905]Since the Reconstruction era, the Constitution has assured all persons that they would receive equal protection. The concept of preferential treatment is contrary to those fundamentals that inspired the unique greatness of the United .States. Even more devastating, any scheme involving preference to some races contains the clear message that members of those races are inferior and unable to compete on a basis of equality. The implication in the rationale of the university that whites are inherently superior, other races inherently inferior, and that unless special benefits are given to minority races institutions will inevitably become all-white, brings back haunting memories of the “master race" that most Americans hoped had been forever eliminated by the Second World War.
Theories of master racism are inherently evil, whether evidenced by Nazi Germany’s genocide of a religious minority, white-controlled South Africa’s apartheid program aimed at a racial majority, or black-controlled Uganda’s expulsion of an Indian minority. In the final 2 decades of the 20th century it is incongruous for racism in any guise to creep by stealth into American academia, and to be not only abjectly accepted, but now stoutly defended. If the principles of democracy and constitutional equal protection are not recognized in the intellectual environment of taxpayer-supported institutions of higher learning, perhaps one should not be so incredulous when some judges are willing to blindly acquiesce in public benefits being bestowed or withheld in whole or in part on the basis of race.
One of the tragedies of history is that courts of law have placed their stamp of approval on racism. In People v. Hall (1854) 4 Cal. 399, our predecessors on this court upheld a statute that prohibited “black, yellow and all other colors” of persons, whom “nature has marked as inferior," from testifying against whites.
But the cases that will endure, that will pass the test of time, are not those that emphasize race as a benefit or detriment, but those that totally exclude race as a consideration in determining rights. One may ask, rhetorically, which opinion will enjoy the plaudits of posterity, Brown v. Board of Education—which took racial factors out of the public schools—or the majority opinion in Plessy v. Ferguson—which permitted separation on a basis of race? It seems equally inevitable that the perspective of time will relegate Price, which approved a mathematical racial quota in public employment, to the same historical ashheap that contains such cases emphasizing race as People v. Hall, supra, [906]Fong Yue Ting v. United States (1893) 149 U.S. 698 [37 L.Ed. 905, 13 S.Ct. 1016], and Quock Ting v. United States (1891) 140 U.S. 417 [35 L.Ed. 501, 11 S.Ct. 733, 851].
Opinions such as the majority in this case are, like Price, a radical departure from the spirit of the Constitution of California, which declares that all persons are entitled to equal protection of the laws. The new rule is that what you get depends upon what you are. It is a return to the medieval notion of government by status—and race is a status over which no one has any control. Race cannot be a plus among qualifications, for if it is a plus for some in our society it is necessarily a minus for others. It is arithmetically impossible for race as a factor to be neutral. Its inclusion as a benefit to some constitutes a detriment to those unable, merely by the accident of birth, to enjoy the same advantage. In short, the use of race in the distribution of society’s benefits is a form of racism, the anachronistic concept that brains and the ability to use them are related to race.
In a society in which men and women expect to succeed by bettering themselves through individual industry—the traditional work ethic—it is no trivial moral wrong to systemically defeat this expectation by subjecting them to group scrutiny. Any system guilty of rejecting an applicant for public school admission when he or she excels in meeting established objective requirements, in favor of others who are less qualified by the same standards, is immoral; it is also self-defeating in the long run because of its acceptance of mediocrity.8 One can only hope that ultimately this new egalitarianism will be rejected because, as Barbara Tuchman recently wrote, “the urge for the best is an element of humankind as inherent as the heartbeat.”9
Years ago medical doctors attempted to cure morphine addiction with doses of heroin. Such efforts were doomed to failure, and worse. [907]Today the university is attempting to cure the remnants of discrimination agáinst minorities with programmed discrimination against the majority. The failure of this misguided social homeopathy is equally predictable. Discrimination—for or against any group—is addictive; the belief that it can be temporary, limited, or controlled is naive and self-deluding.
I quoted Professor Van Alstyne’s peroration in my Price dissent. It bears repetition: “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one’s government—the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.” (Van Alstyne, Rites of Passage (1979) 46 U.Chi.L.Rev. 775, 809-810.)
I would affirm the order of the trial court insofar as it holds the university admissions procedure to be invalid and enjoins the university from utilizing admissions criteria based upon color, sex, race, religion or ethnic origin. I would reverse the order of the trial court denying plaintiff’s application for a writ of mandate and denying plaintiff’s motion to amend his complaint.
Clark, J., concurred.
The petition for a rehearing was denied March 11, 1981, and the dissenting opinion was modified to read as printed above. Newman, J., did not participate therein. Rattigan, J.,* participated therein. Mosk, J., was of the opinion that the petition should be granted.
The incongruity of group reparations rather than individual appraisal can be illustrated by the recent black appointee to President Reagan’s cabinet as Secretary of Housing and Urban Development: Samuel Riley Pierce, Jr., the son of a prosperous businessman, resident of a fashionable New York suburb, honor graduate of an Ivy League University. Would Davis be justified in rating Secretary Pierce’s offspring, because of their color, more deserving of preferential treatment than the offspring of a Caucasian farm worker from the Imperial Valley, a Yugoslav fisherman from San Pedro, or an Italian cobbler from San Francisco’s North Beach?
The Harvard program, mentioned with approval by Justice Powell and the majority of my colleagues, is not the paradigm it is represented to be. For a criticism of the Harvard scheme as applied, see Dershowitz, op. cit. supra, page 379 fif. Harvard, unlike Davis, does not specify preferred races.
Sowell, Ethnic Groups, Prejudice and Economic Progess (Dec. 4, 1980) Wall Street Journal.
Blacks, too, have experienced remarkable economic growth without special preferences. Ben J. Wattenberg has written that by 1970, “for the first time in the history of the Republic ‘middle class’—as measured by criteria of income, occupation, and education—became the adjective to describe the majority of black Americans.” (Wattenberg, The Real America (1976) p. 124; see also Rossum, Reverse Discrimination (1980) p. 32 ff.)
Theologian Michael Novak suggests that ethnic inclusion is a matter of political pressure. While abhorring group entitlement and quotas, he declares that “if the Poles, Czechs, Italians and others are not considered ‘official minorities,’ it is because they haven’t been as skillful in politics as they need to be ... if society wants quotas, then everyone should be included.” (See Novak, Ethnicity is Not a Dirty Word (Summer 1980) Civ. Rights Q., pp. 24-25.)
Professor Bunzel Cites a member of Congress who “acknowledged that in the area of affirmative action many of the decisions and policies of the courts and federal agencies do not reflect the feelings of the majority of Americans and have gone beyond the intent of Congress. When asked why he did not draw attention to the problem, he answered candidly, ‘I do not want to be called a racist by the civil rights activists.’” (Bunzel, Prepared, Not Preferred (Fall/Winter 1980) Stan. Magazine, p. 60.)
A logical extension of racial representation in public schools was proposed recently in Cleveland. The administrator of the school district’s integration program observed that most high school basketball teams in the community were all-black. Integration, he decided, must be a two-way street. Therefore he ordered that by next year two out of five first-team players must be white.
Coaches, and black players particularly, complained bitterly that the principle of ability was being overlooked, that racial representation and quotas should not replace merit in selection of a competitive team.
A federal judge ultimately vetoed this absurd scheme.
Los Angeles high school coaches commendably reacted to the suggestion this way: “We try not to think in terms of the ethnic situation. We play the people who are going to get the job done, regardless of color.” (Integration Plan Isn’t Likely Here (Dec. 9, 1980) L.A. Times, pt. III, p. 6.)
The federal bureaucracy has been compelled to recognize the inefficiency resulting from racially inspired hiring policies. “The emphasis on race or sex rather than performance, and the explicit rules and implicit fears by which it is enforced, can wreak havoc in a large organization even after the initial hiring decision is made .... [T]he atmosphere created by defining people in terms of race heavily burdens the possibility of decent working relationships.” (Reed, What’s Wrong With Affirmative Action (Jan. 1981) Wash. Monthly, pp. 28-29.)
Tuchman, Quality and Non-Quality, San Francisco Chronicle, Review section, (Nov. 16, 1980). Also see Fallon, Merit Conceptions & Antidiscrimination Law (1980) 60 B.U. L.Rev. 815.
Assigned by the Chairperson of the Judicial Council.