page_title: Regents of the Univ. of Cal. v. Bakke
section_title: Acceptance and briefs
hierarchical_section_title: Regents of the Univ. of Cal. v. Bakke / U.S. Supreme Court consideration / Acceptance and briefs
caption_attribution_description: A rally support of overturning the California Supreme Court's decision in Bakke v. Regents of the University of California.
context_page_description: Regents of the University of California v. Bakke, 438 U.S. 265, was a landmark decision by the Supreme Court of the United States. It upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis School of Medicine, were impermissible.
  Although the Supreme Court had outlawed segregation in schools, and had even ordered school districts to take steps to assure integration, the question of the legality of voluntary affirmative action programs initiated by universities remained unresolved. Proponents deemed such programs necessary to make up for past discrimination, while opponents believed they were illegal and a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. An earlier case that the Supreme Court had taken in an attempt to address the issue, DeFunis v. Odegaard, was dismissed on procedural grounds.
  Allan P.
context_section_description: The university requested that the U.S. Supreme Court stay the order requiring Bakke's admission pending its filing a petition asking for review. U.S. Supreme Court Justice William Rehnquist, as circuit justice for the Ninth Circuit (which includes California) granted the stay for the court in November 1976.
  The university filed a petition for writ of certiorari in December 1976. The papers of some of the justices who participated in the Bakke case reveal that the case was three times considered by the court in January and February 1977.  Four votes were needed for the court to grant certiorari, and it had at least that number each time, but was twice put over for reconsideration at the request of one of the justices. A number of civil rights organizations filed a joint brief as amicus curiae, urging the court to deny review, on the grounds that the Bakke trial had failed to fully develop the issues—the university had not introduced evidence of past discrimination, or of bias in the MCAT.  Nevertheless, on February 22, the court granted certiorari, with the case to be argued in its October 1977 term.
  The parties duly filed their briefs.  The university's legal team was now headed by former U.S. Solicitor General and Watergate special prosecutor Archibald Cox, who had argued many cases before the Supreme Court.  Cox wrote much of the brief, and contended in it that "the outcome of this controversy will decide for future generations whether blacks, Chicanos and other insular minorities are to have meaningful access to higher education and real opportunities to enter the learned professions". The university also took the position that Bakke had been rejected because he was unqualified. Reynold Colvin, for Bakke, argued that his client's rights under the Fourteenth Amendment to equal protection of the laws had been violated by the special admission program. Fifty-eight amicus curiae briefs were filed, establishing a record for the Supreme Court that would stand until broken in the 1989 abortion case Webster v. Reproductive Health Services. Future justice Ruth Bader Ginsburg signed the ACLU's brief; Marco deFunis, the petitioner in the 1974 case dismissed for mootness, wrote the brief for Young Americans for Freedom.
  In addition to the various other amici, the United States filed a brief through the Solicitor General, as it may without leave of court under the Supreme Court's rules.  When consideration of  Bakke began in the new administration of President Jimmy Carter, early drafts of the brief both supported affirmative action and indicated that the program should be struck down and Bakke admitted. This stance reflected the mixed support of affirmative action at that time by the Democrats. Minorities and others in that party complained, and in late July 1977, Carter announced that the government's brief would firmly support affirmative action.  That document, filed October 3, 1977 (nine days before oral argument), stated that the government supported programs tailored to make up for past discrimination, but opposed rigid set-asides.  The United States urged the court to remand the case to allow for further fact-finding (a position also taken by civil rights groups in their amicus briefs).
  While the case was awaiting argument, another white student, Rita Clancy, sued for admission to UC Davis Medical School on the same grounds as Bakke had. In September 1977, she was ordered admitted pending the outcome of the Bakke case.  After Bakke was decided, the university dropped efforts to oust her, stating that as she had successfully completed one year of medical school, she should remain.
caption: Protest against the California Supreme Court's decision in Bakke, Los Angeles, May 7, 1977
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