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Bakke Case, 9/77
Folder Citation: Collection Office of the Chief of Staff Files; Series:
Hamilton Jordan's Confidential Files; Folder: Bakke Case, 9/77;
Container 33
To See Complete Finding Aid:
http://www.jimmycarterlibrary.gov/library/findingaids/Chief_of St
aff.pdf
Stn. Bob
THE PRESIDENT HAS SEEN.
THE WHITE HOUSE
I agree =
WASHINGTON
a) action Strong affiniative
September 6, 1977
b) no vigid guotes
MEMORANDUM FOR THE PRESIDENT
FROM:
STU EIZENSTAT
Stor
Remanding Q may be
111 advised-
BOB LIPSHUTZ
SUBJECT:
Bakke
pJt
Jump into drafting
process -
J.C.
Attached are our comments on the Bakke brief. We conclude
that substantial revisions are necessary. In particular,
the brief should:
1) strongly endorse affirmative action;
2) clearly differentiate affirmative action from
quotas; and
3) request that the Supreme Court remand the case
to gather the facts necessary to determine whether
the University of California's program actually
operates as a rigid quota.
Remanding the case is the least controversial way of dealing
with it. Remand is appropriate since the evidence is vague
on a number of key issues. Justice agrees that the factual
record is poor but apparently feels that remand would be
unfair to Bakke, since the University bears much of the
responsibility for the sorry state of the record. We believe,
however, that--from the perspective of the United States--
the issue is too critical to be decided in the absence of
knowledge of all relevant facts.
If you agree with our recommendations, we believe it would
make sense for us to sit down with the Justice lawyers who
will actually be doing the rewriting and explain our concerns
to them. In any event, we should certainly have an opportunity
to review the brief after it has been revised and before it
is filed.
Even if it is decided not to request a remand, we would hope
that the other substantive suggestions in this memorandum
are seriously considered.
THE WHITE HOUSE
WASHINGTON
September 7, 1977
Stu Eizenstat
Bob Lipshutz
The attached was returned in the
President's outbox today and is forwarded
to you for your information and appropriate
handling.
Rick Hutcheson
CC: The Vice President
Midge Costanza
Hamilton Jordan
Frank Moore
Jody Powell
Jack Watson
RE: BAKKE
ADMINISTRATIVELY
CONFIDENTIAL
THE WHITE HOUSE
WASHINGTON
September 6, 1977
MEMORANDUM FOR THE PRESIDENT
FROM:
STU EIZENSTAT
BOB LIPSHUTZ
SUBJECT:
The Bakke Brief
The brief which the government files in the Bakke case will
not simply be a legal document. Rather, it will be seen as
a statement of this Administration's policy on an issue--
affirmative action--which is an integral part of large numbers
of l'ederal programs. Our position should be set forth as
clearly as possible.
Your policy in this area is and has been that you vigorously
support affirmative action as a necessary tool in the effort
to overcome the legacy of discrimination, but that you oppose
rigid quotas. The brief should say that. It should also
specifically identify and support the several government pro-
grams which enforce affirmative action requirements. The brief
should then describe as clearly as possible the difference
between acceptable affirmative action devices, such as goals,
and impermissible quotas. Finally, the brief must consider
the principles developed in light of the particular facts of
this case.
The balance of this memo outlines the general problems we see
in Justice's brief, as well as a section-by-section analysis
which is somewhat more specific. If the Administration's
position on this important and controversial issue is to be
set forth in an accurate and comprehensible fashion, the brief
should be rewritten.
I.
PROBLEMS WITH THE BRIEF
A. Lack of Commitment to Affirmative Action
The brief, as now written, does not clearly express this
Administration's firm commitment to affirmative action. Such a
statement of commitment is needed for both legal and political
reasons. The beief, however, appears internally contradictory
on this point; while the tone of some sections is supportive of
affirmative action, the tone of others could be seen as distinctly
unfriendly to such programs.
-2-
In a fundamental sense the brief is, in its own word,
too "dispassionate." There should be more consistent advocacy
of this Administration's policy and programs.
B. Failure Clearly to Identify the Characteristics of
Permissible Affirmative Action Programs
The brief does not clearly articulate the distinction
between affirmative action and quotas. It determines that the
University of California's program is impermissible, but it
does not explain why. The result is that the brief offers
little or no guidance to universities or others sincerely
wishing to employ principles of affirmative action in a consti-
tutional manner.
There is no bright line separating quotas from affirmative
action, but we have a responsibility to capture the distinction
as clearly as possible. The difference can be drawn in the
following terms:
-- Affirmative Action
The urpose of affirmative action programs is to assist
our society in overcoming the effects of discrimination.
Because of discrimination--which was overt until the recent
past and often exists today in subtler forms--it is often
necessary to--
1) recruit minority or female candidates for university
admissions (or jobs) in an affirmative manner;
2) evaluate the potential of minority applicants in
a sensitive fashion, realizing that a black with less
impressive paper credentials may in fact have as much
potential as a more highly credentialed white; and
3) decide consciously to select some minorities from
among those applicants having roughly comparable potential.
Here it is appropriate--as in most other human endeavor--
to set realistic goals toward which to strive.
Within this basic framework affirmative action programs
are flexible, and they pay close attention to qualifications.
While the qualifications of minority applicants are evaluated
with special sensitivity, they are viewed in the context of the
overall applicant pool. The potential of the lowest ranking
minorities accepted should be roughly comparable to that of the
lowest ranking whites. If there are not sufficient qualified
minor ty applicants the goal is simply not met, and no penalties
are inposed.
-3-
The ultimate objective of affirmative action programs is
not proportional representation of certain groups in various
professions. Rather the aim of such programs is to hasten the
day when they are no longer needed--when the vestiges of dis-
crimination have been eliminated and men and women of all races
can compete freely and fairly in an atmosphere where no one is
concerned with race or sex.
-- Quotas
Unlike affirmative action programs, quotas are rigid. They
do not respect qualifications. Minority applicants with markedly
less potential than the lowest ranking whites will be accepted
simply to meet a quota. The long range objective of quotas is
to insure proportional representation of various groups in
universities, professions, etc. In short, quotas--unlike goals--
have no sunset provision.
-- Implications for Brief
The distinctions between affirmative action programs and
quotas are not always easy to apply, but they exist and should
be articulated in the brief. In addition to lack of clarity,
moreover, even where it is most lucid the brief is too narrow.
It correctly argues that an applicant's race may be taken into
account in evaluating his or her potential, but it strongly
implies that this is the only legitimate use of race. In fact,
as noted above, affirmative action programs also consciously
consider race to insure that some minorities are indeed selected
from among applicants having comparable potential. The brief
should recognize and support both uses of race in the selection
process.
C. Lawfulness of the University's Program: Possibility
of Recommending REMAND
The narrow issue in this case is whether the University's
special admissions program operated in a constitutional manner.
The brief concludes that it did not. Here it equivocates, how-
ever, stating that the program might be found permissible if
the facts were clearer. (At p. 86, the brief says that the
Supreme Court should not exclude "the possibility that a similar
program, or indeed the Medical School's own program, could be
sustained on an adequate record.")
We agree that the facts are poorly developed in the lower
court record, as the brief itself indicates in several other
places. For that reason, it would mase sense to request that
the Court make no finding on the constitutionality of this
-4-
particular program but instead remand the case for further
factual development. Requesting a remand is the simplest
and least explosive way to deal with the lawfulness of the
University's program; it is also a responsible legal position.
Briefly, there are several areas of disputed facts.
First, the University has contended that its program was in
fact open to disadvantaged applicants of all races. If true
there may not be a legal infirmity, since a court would likely
find no constitutional problem with creating a special program
for disadvantaged applicants generally.
Even if, as seems likely, the program was aimed specifi-
cally at minorities, other crucial pieces of evidence are
missing:
1) How did the program operate in fact? Was this a
rigid quota, in which 16 minorities were selected regard-
less of how their qualifications compared with those of
white applicants? Or did the University set a goal of
16 minorities which it earnestly tried to meet, assuming
it could find candidates whose qualifications roughly
compared at least to the lower ranking whites admitted?
While the record suggests that the program was overly
rigid, it is not clear on this critical issue. On one
occasion, for example, the University had accepted 16
minority applicants but one declined. Instead of filling
the vacancy with another minority applicant--and thère were
minorities on the waiting list for the special program--
it apparently selected a white. (See footnote at p. 7.)
Hence there may have in fact been more flexibility and
concern for qualifications in the program than appears at
first blush.
2) Was it rational for the University to set a target
of 16 percent? If, given the size of the likely pool of
minority applicants, that figure is unrealistically high,
then the school may have had to blink at qualifications
in order to meet it. There is, however, no evidence on
how this figure was selected.
Given the sorry state of the record developed by the parties
to the suit, we should not ask the Court to declare the Univer-
sity's program unconstitutional. Instead the brief should out-
line the governing principles, explain that the record is not
sufficiently clear to permit a reasoned application 01 those
prirciples, and request that the case be remanded for fuller
factual development. If it is determined that the University
in fact utilized a rigid racial quota, then the program should
be declared unconstitutional.
-5-
D. Tone of the Brief
The brief as now written is replete with problems of tone.
Certain phrases such as "race conscious," while terms of art,
could be misunderstood by the public and the media and would be
better replaced by a phrase such as "minority sensitive" (with
minority defined to include blacks, Hispanics, and Asian Ameri-
cans). In addition to problems of phrasing, however, certain
sections of the brief are simply insensitive--even offensive--
and if taken out of context would be damaging. Examples of
such passages, which should be modified or deleted, are found
below in the section-by-section analysis of the brief.
II. SECTION-BY-SECTION ANALYSIS
As is customary, the brief begins with a short statement of the
issues presented, then outlines the interest of the government,
states the facts in the case and summarizes the opinions of the
lower courts. Finally, the lengthiest portion is devoted to the
argument.
A. Issues Presented
While later stating (p. 24) that the case cannot properly
be reduced to the question of whether race may be taken into
account in making admissions decisions, it appears from the
statement of questions on p. 1 that the government believes this
to be the overriding issue. The questions presented should be
rephrased to eliminate this inconsistency.
B. Interest of the United States
Here there should be a forthright statement of support for
Federal affirmative action programs. The reference (p. 3) to
the government's "dispassionate" posture should be removed.
C. Facts and Lower Court Opinions
These sections should be rewritten--particularly to empha-
size the inconclusive nature of the record--if we decide to ask
the Court to remand the case for fuller factual development.
D. Argument
The argument has three prongs:
1) as a general proposition, race may be taken into
account to remedy prior racial discrimination (p. 27) ;
-6-
2) the University of California could have properly
concluded that an admissions program sensitive to race
was needed to address the effects of past bias against
minorities in the medical profession (p. 58) ; but
3) the program actually developed by the University
was not constitutional (p. 79).
As already noted, the third prong of the argument should
be reconsidered. Instead of a flat declaration of unlawfulness,
a remand to produce a better record might be appropriate. Even
with respect to the first two prongs, however, there are several
specific problems in addition to the more general ones previously
noted, including:
1. Pages 27-32 summarize the Supreme Court decisions per-
mitting consideration of race for the purpose of overcoming the
effects of discrimination. That section should make it clear--
perhaps at the bottom of p. 29--that the ultimate objective of
any minority sensitive remedy is to produce a situation of
complete racial neutrality.
2. Pages 32-48 are potentially damaging. The purpose of
this section is simply to argue that any resort to race should
be closely scrutinized by the courts, a position which should
be taken but which can be stated in two pages. Instead the
brief makes the point SO vociferously, and at such length, that
it appears to be opposed to affirmative action programs generally.
For example, the caption on p. 32 reads, "Racial
Classifications Favorable to Minority Groups are Presumptively
Unconstitutional." It would better read, "Rigid Classifications
Based on Race Should Be Carefully Scrutinized." At p. 37, the
brief argues that "any resort" to race has potentially adverse
consequences--a position which appears to cut against any affir-
mative action programs--as does the discussion at p. 39 to the
effect that the minority beneficiaries of such programs will
inevitably be stigmatized. Similarly unhelpful is the sugges-
tion on p. 46 that only white "altruists "wishy washy
liberals"--would be interested in establishing affirmative
action programs.
Generally, the tone of pages 32-48 could be perceived
as hostile to affirmative action. The section should be revised
and shortened considerably.
-7-
3. Pages 48-58 purport to detail the ways in which race
may be used to overcome the effects of discrimination. This
is the most important section of the brief, the place where the
government should spell out the distinctions between goals and
quotas. Indeed, much of the brief's best work is contained in
this section. Yet, as noted above, the argument is too narrow,
strongly implying that race may be considered only in the process
of evaluating paper credentials.
The brief also explicitly declines to cast the argument
in the familiar "goal V. quota" terminology. While it is true
that the terms have not heretofore been well defined, they con-
stitute the language in which the public will conduct the debate,
and better delineation is imperative.
4. At page 58, the brief begins to apply its general
principles--which unfortunately have not been developed with
sufficient precision--to the University of California's program.
Pages 58-68 argue credibly that discrimination has hindered the
participation of minorities in the medical profession.
5. At page 68, however, the gears shift, and pages 68-72
(like 32-48) may not be perceived as supportive of affirmative
action. The purpose of this section is to analyze the Univer-
sity's "further justifications" for a special admissions program.
The analysis is unnecessary, however, since the brief has already
argued--correctly--at pp. 58-68 that prior discrimination against
minorities in the medical profession is sufficient to justify
affirmative action. These remarks at pp. 68-72--such as an
expression of doubt that "minority students will enrich the
classroom experience of white students" (p. 68)--should be
either eliminated or severely modified.
6. At pp. 79-86, the brief details the argument that,
despite the evidentiary deficiencies, the University's program
should be declared unconstitutional. We have already indicated
why we believe a remand on this issue should be seriously con-
sidered. Moreover, the section inartfully suggests that too
many minorities may have been admitted (pp. 81, 83), that Asians
should not have been included (p. 84), and that the program
should have been limited to blacks (p. 85).
It is true that the purpose of affirmative action
programs is to remedy discrimination. If it is clear that
discimination against Asians in the medical profession has
largely been redressed--and the evidence suggests that it may
have boon--then it may be appropriate to modify the program
to concentrate on blacks and Hispanics. The phrasing of any
such suggestion must be delicate, and the idea that an affirma-
tive action program should be limited to blacks alone is both
legally and politically unsound, particularly in the Hispanic
community.
-8-
CONCLUSION
In order to present this Administration's position, the brief
should:
1) strongly endorse affirmative action;
agree
2) clearly differentiate affirmative action from
quotas; and
agree
3) request that the Supreme Court remand the case to
gather the facts necessary to determine whether the
?
University of California's program actually operates
as a rigid quota.
THE WHITE HOUSE
WASHINGTON
September 6, 1977
FILE
MEMORANDUM FOR HAMILTON JORDAN
FROM:
STU EIZENSTAT Sth
SUBJECT:
The Bakke Case
This is going to be a very tough issue. While I think
that legally the Justice Department position against
the University is correct, I have become convinced from
telephone calls from blacks and liberals that they will
treat our position as a retreat from all affirmative
action programs.
This dilemma is the reason I have recommended the case
be remanded, which means the Administration would not
have to take a formal position against or for Bakke.
Rather, we could limit our position to a general discussion
of affirmative action (which we support) and quotas (which
we oppose).
I would like to speak with you about the case at your
convenience.
THE WHITE HOUSE
WASHINGTON
September 10, 1977
Stu Eizenstat
The attached was returned in
the President's outbox. It is
forwarded to you for appropriate
handling.
Rick Hutcheson
CC: Hamilton Jordan
Bunny Mitchell
Frank Moore
RE: LETTER FROM BLACK CAUCUS
ON BAKKE
THE PRESIDENT HAS Science
Congressional Blark Caurus
STU-
306 Couse Annex
Mashington. D.C. 20515
Prepare answer
Parren J. Mitchell, Md., Chairperson
Shirley Chisholm, N.Y, Vice-Chairperson
202-225-1691
Cardiss Collins, III, Treasurer
J
Ronald V. Dellums, Calif., Secretary
September 9, 1977
Yvonne B. Burke, Calif.,
William Clay, Mo.
John Conyers, Mich.
The President
Charles Diggs, Mich.
The White House
Walter E. Fauntroy, D.C.
Washington, D.C. 20500
Harold Ford, Tenn.
Augustus Hawkins, Calif.
Dear. Mr. President:
Barbara Jordan, Texas
Ralph Metcalfe, III.
Robert N.C. Nix, Pa.
Reports indicate that the government will file an amicus curiae
Charles Rangel, N.Y.
brief in support of Allan Bakke in the case of The University
Louis Stokes, Ohio
of California V. Allan Bakke. We understand that that brief
takes the position that the University of California acted in
an unconstitutional and discriminatory manner in its establish-
ment of a special admissions program to benefit "economically
and socially disadvantaged" applicants to its medical school.
We strongly oppose this position apparently taken by the govern-
ment. This position is not only contrary to the relevant civil
rights law, but will also have the effect of irretrievably un-
dermining the affirmative action programs of public and private
entities.
We urge the Administration to reconsider and reverse its reported
decision to support Allan Bakke's position in this case. As in-
dicated in the memorandum left with you at our meeting on Wednes-
day, we believe that future generations would come to regard a
government brief supporting Bakke's position in the way the
nation would now view a government brief in support of segregation
in Brown V. The Board of Education. A government brief opposing
affirmative action programs would be a statement to the black
community indicating the government's reversal of its commitment
to civil rights in this country.
In April, the Congressional Black Caucus wrote to the Attorney
General asking for an amicus brief in support of the University
of California's position in this case. Six months ago, when
the Supreme Court decided to grant certiorari in the Bakke case,
a delegation of concerned minority citizens asked the Justice
Department to intervene on behalf of the University. It was
their feeling that the real parties at interest -- minority
Americans who stand to lose most from a policy of retrenchment
-- had never been adequately represented in the litigation.
Now, without the opportunity for those groups and for the Caucus
to review and question the arguments in this reported brief, the
Justice Department is apparently ready to immediately file a
brief against our interests.
We ask that such filing be delayed to allow for further dis-
cussions with appropriate officials on this vital matter. It
is imperative that the government file with the Supreme Court
a strong and persuasive brief in support of the University of
California's position in the Bakke case, particularly since the
Federal government brief could be the deciding factor in arguments
before the Supreme Court.
Sincerely,
CONGRESSIONAL BLACK CAUCUS
Yvonne B. Burke
Shirley Shirley Chisholm Chisholm
Williams Lay William Clay
Cardiss Collins
Ronald Della
John
Ronald V Dellums
John Conyerg Conyers Walter Fauntroy Familian
Charles Diggs
augustus7 Hawkins
Harold Ford Ralph Augustus H. Hawkins metialfa
Barbara
Jordan
Ralph
Metcalfe
Power J. Caitabell Robert n.c. nixt
Parren J. Mitchell
Robert N.C. Nix
Charles Rangel Louis Stokes W
THE WHITE HOUSE
WASHINGTON
September 10, 1977
MEMORANDUM FOR THE PRESIDENT AND VICE PRESIDENT
FROM:
Stu Eizenstat
Bob Lipshutz
RE:
Revised Bakke DJ F Brief
We have reviewed Justice's revised brief in the Bakke case,
which we received last evening. The brief was written prior
to the meeting yesterday which established certain principles
for handling this case and so does not incorporate these
principles.
For the most part the revised brief is the same document
which Justice submitted last week, with two important changes.
First, there is a new introductory section to the argument
which concedes the evidentiary difficulties and says that
"too much is unknown about the Medical School's program to
allow a confident assessment of its constitutionality" (p.
20). Second, the conclusion is not yet written, and Justice
says it is considering four different positions to take on
the constitutionality of the University's program, including
two which would permit us to avoid passing on the question
(see p. 86).
As rewritten, even with the changes mentioned, the brief
still poses major problems:
1. Constitutionality of the University's Program.
Although the revised brief, as noted, appears more flexible
on this question, apparently Justice is still inclined to
"evaluate the Medical School's program as the evidence and
record show that it has been applied to respondent" (p. 21),
although the brief notes that as indicated above, "too much
is unknown about the Medical School's program to allow a
confident assessment of its constitutionality". Given both
- 2 -
the uncertain nature of the evidence and the political
realities, we continue strongly to believe that we should
avoid taking a position on any aspect of the constitutionality
of the University's program. By insisting on taking a
position on its constitutionality, the Justice brief gets
itself -- and the Administration -- in trouble.
2. The Proper Legal Standard. The brief argues in
various places that all racial classifications -- including
all affirmative action programs -- should be subject to
"strict scrutiny" or "the most exacting scrutiny" (p. 25) or
"special justification" (p. 32) or "searching scrutiny" (p.
35) or "grave suspicion" (p. 37). Yet nowhere does the
brief elaborate with any precision how any racial classifi-
cation can successfully survive such examination. Indeed, if
such a rigid standard and burden of proof are created, then
even clearly constitutional affirmative action programs
would be difficult to justify.
The argument to date has been between those who say that all
racial classifications must be strictly scrutinized, and
hence are presumptively unconstitutional (Justice), and
those who argue that classifications favorable to minorities
should be judged on a lenient, rational basis (HEW). We
believe that the two approaches can be reconciled in a
manner which would protect most reasonable affirmative
action programs, with an argument similar to the following:
1) any racial classification should be closely
evaluated;
2) if an affirmative action program is challenged,
the institution defending the program must do more than
state in conclusory fashion that the program is intended to
assist the victims of discrimination; rather the institution
has the burden of going forward (not the ultimate burden of
proof) and must demonstrate that, in fact, such assistance
is necessary and that some resort to minority status is an
essential element of the remedial program (in the present
case the University could easily make such a showing for
blacks and chicanos -- but probably not for Asians);
3) once the institution has shown that it has a
legitimate purpose in using minority status -- and remedying
the effects of discrimination (by either itself or society
at large) is probably the only legitimate purpose -- it has
discharged its evidentiary obligation;
- 3 -
4) the burden of going forward would then shift to
those attacking the program to show that it was designed so
that race was the sole factor considered and that other
important values -- e.g., qualifications -- were ignored. If
the plaintiff could make such a showing -- which would
amount to proving that a rigid quota was used -- then the
program could not be sustained.
We believe that an intermediate standard along these lines
makes both legal and practical sense. It recognizes that
resort to race should not be treated lightly, but it does
not give the proponent of an affirmative action program an
impossible burden (as may be the case if the standard is
strict scrutiny).
3. Support for Affirmative Action. The brief still
contains no forthright, consistent advocacy of affirmative
action programs. It is still internally contradictory on
this point, sometimes supportive, sometimes opposed. For
example, at p. 53A the brief states that "race is relevant
to making admissions decisions," while earlier at p. 41 it
argues that "the overriding principle here is that race is
deemed irrelevant to informed decisionmaking." These shifts
of position occur throughout the brief. It is not a coherent
whole.
4. References to Race and to Race or Color Consciousness.
While some changes have been made to use "minority status"
for "race" and "minority sensitive" for "race" or "color
conscious," as we earlier suggested, those provocative terms
are still interspersed throughout the brief.
CONCLUSION
The basic points made above are similar to the general
principles agreed upon yesterday. In order to incorporate
these into the brief, we believe that it must be substantially
restructured and rewritten. Further editing will not suffice.
We attach a proposed statement of the position of the U.S.
developed by Wade McCree. You will note it largely tracks
the statement we developed yesterday after the meeting with
the Vice President and the Attorney General.
SUBSTANTIAL REWRITING IS REQUIRED. WE BELIEVE THAT IT IS
MUCH PREFERABLE TO TAKE THE ADDITIONAL DAY OR TWO NECESSARY
TO FILE AN ADEQUATE BRIEF, THAN TO FILE SOMETHING INADEQUATE
ON MONDAY.
Position of the United States As Outlined in the
Proposed Bakke Brief Prepared by the Solicitor General
1) The U.S. strongly supports, encourages and
promotes affirmative action programs to help bring
disadvantaged minorities into the mainstream of American
life in jobs, educational institutions and all walks of
life. The court is urged to reverse the sweeping and
erroneous interpretation of the equal protection laws by
the California State Supreme Court that race may not be
considered in affirmative action programs.
2) The U.S. believes that rigid, inflexible racial
quotas -- which have the effect of barring people who may
have disadvantages similar to those of racial minorities
from participation in certain programs solely because
of their race -- does not pass constitutional muster.
3) The U.S. is convinced from a review of the
sparse record that the Bakke case may be an inadequate vehicle
for determining the limits of affirmative action as posed
in the administration of the special admissions program
of the University of California.
4) In the event the court does not dismiss the
writ as having been improvidently granted because of the
inadequacy of the record, or remand for additional fact-
finding, profound constitutional questions will be posed
that vitally involve the interest of the United States.
Because of the overriding importance of these questions
the United States feels compelled to set out its position
favoring vigorous affirmative action and opposing rigid
quotas. The disposition of Bakke's individual
claim because of the peculiar facts presented by this sparse
record, and the failure of the University to contest his
claim adequately, affects no interest of the United States.
As amicus, therefore, we propose to make no suggestion to
the court as to ultimate disposition.
ADMINISTRATIVELY CONFIDENTIAL
THE WHITE HOUSE
WASHINGTON
September 16, 1977
Stu Eizenstat
The attached was returned in
the President's outbox. It is
forwarded to you for appropriate
handling.
Rick Hutcheson
CC: The Vice President
Hamilton Jordan
Bob Lipshutz
RE: FINAL DRAFT OF BAKKE BRIEF
THE PRESIDENT HAS SEEN,
Stu- Pursue =
THE WHITE HOUSE
A Gen. A Gen.
WASHINGTON
September 16, 1977
FC
MEMORANDUM FOR:
THE PRESIDENT
THE VICE PRESIDENT
FROM:
BOB LIPSHUTZ of
STU EIZENSTAT
Stu
SUBJECT:
"Last Draft" of Bakke Brief
The Solicitor General and the Assistant Attorney General for
Civil Rights and their staffs have obviously worked very hard
on the brief and have produced a fine product. It is a
substantial improvement over previous drafts and takes the
generally positive thrust toward affirmative action that the
Administration should take. We would only raise the following
point:
The major problem with the brief -- and one that is easily
rectified -- is that the brief nowhere states as a matter
of policy the second of the four points in the agreed-upon
statement of principles which the President approved -- namely
that, in the words of the Solicitor General's statement, "rigid,
inflexible racial quotas -- which have the effect of barring
people who may have disadvantages similar to those of racial
minorities from participation in certain programs solely
because of their race -- do not pass constitutional muster."
There are several places in the brief where a simple, affirmative
paragraph to this effect could easily be placed, for example
on Page 42 or at the end of Page 57.
Such a simple statement is important to give the brief balance
and to reaffirm the position the President has always taken.
There simply is no direct statement in the brief that we
oppose rigid and inflexible quotas based solely on race. In
this regard We think that the following sentence on Page 22 should
be stricken: "Such a design often will require categorical use
of race rather than case by case determinations." The paragraph
is sufficiently strong without this sentence and the term
"categorical use of race" is unclear and the type of language
which might be used out of context.
There are a few other technical matters thatwe will raise
independently with Judge Bell.
CC: The Attorney General
C
THE WHITE HOUSE
WASHINGTON
September 16, 1977
MEMORANDUM FOR:
THE PRESIDENT
THE VICE PRESIDENT
FROM:
BOB LIPSHUTZ
Stu
STU EIZENSTAT
SUBJECT:
"Last Draft" of Bakke Brief
There is one additional point which we did not want to
mention in the attached memo, which may be circulated to
the Justice Department.
The Justice Department brief calls for reversing the
California Supreme Court's decision on the law, because
the California Court erroneously ruled that minority status
cannot be used as a criterion for affirmative action.
As to Bakke himself, the brief recommends that the California
judgment (admitting Bakke to medical school) be vacated and
that the case be remanded, to build an adequate factual
record and apply. a correct legal standard.
The fourth of the Solicitor General's principles suggested
an additional alternative -- we had also mentioned -- that
the Supreme Court vacate its writ of certiorari as
improvidently granted. This would mean that the Court simply
would not review the case because of the inadequate factual
record. It would have the effect of leaving the California
judgment in force and thus admitting Bakke -- something you
indicated you would like to do, if possible. However, this
would mean that the legal standard set out by the California
Supreme Court outlawing affirmative action would continue to
apply in the State of California and might well be cited as
a precedent in other states and conceivably for federal programs
as well. In view of this, we believe the Justice Department
decision to drop this approach was justified.
What the Justice Department brief now suggests is that
Bakke's own situation be reviewed and resolved again by the
California Courts using a different legal standard and a better
factual record. The federal government would take no position
as to whether Bakke should in fact be admitted. We think this
ok
is appropriate.
-2-
In our view, the facts do not show whether a rigid. quota
was or was not involved. Although the Davis Medical School's
Special Admissions Committee does appear to have recommended
only minority applicants, these recommendations were reviewed
by the regular Admissions Committee -- and it is unclear whether
the regular committee did this on a competitive basis with
other applicants.
C
TO:
PRESIDENT CARTER
FROM: HAMILTON JORDAN H.P.
RE:
BAKKE CASE
I would like to share with you my serious concern
about the manner in which we are handling our respon-
sibilities in the Bakke case. If you knew and were aware
of the approach that is being taken on your behalf, I
don't think that you would be either happy or satisfied.
The Bakke case represents an opportunity for the
U. S. Government to make a major policy statement on
this particular case and the key issues involved.
As non-lawyers, I don't think you or I really understand
the implications of that involvement nor the options
available to you. A lot of well-intentioned people
here and at the Justice Department assume you and I
know a hell of a lot more about this than we do. For
that reason, I would like to make some observations as
a result of discussions with Stu, Judge Bell, Bob Lipshutz
ELECTROSTATIC REPRODUCTION MADE FOR
PRESERVATION PURPOSES
and the Vice-President.
These discussions have raised several questions which
should be addressed.
1. Does the Bakke case present the larger issues at
stake - which we are being called on to comment - in
a clearcut manner? Judge Bell, the Vice-President, Stu
and Bob Lipshutz say definitely not. Everyone who is
familiar with this case whose political and legal advice
you value say that the issues in this case are muddled
and confused. Consequently, it would seem to be a very
poor case for us to use as the vehicle for the expression
of our own views on this very emotional and complex issue.
2. If it is generally agreed that it is a poor case
in which to ask the Court to make a major legal decision
with far-reaching consequences, it would seem that the
strength of our own statement and arguments would be
diminished and undermined by the poor vehicle that we
have chosen. We should seek some mechanism for the
statement of our views that will have the maximum positive
legal result. The "Bakke case" may be a well known
case, but it does not represent the best opportunity
for us to state the political philosophy of this Admin-
istration.
3. Because the Bakke case has taken on tremendous sym-
bolic significance to the minorities of this country,
we should realize that they are going to pay little att-
ention to our eloquent language and focus almost exclusive-
ly on which side we support in our brief. Neither you
nor : have been able to understand the legalisms in
this case - how can we expect illiterate and disadvantaged
people to understand when they are told by their leaders
and the media that, "Carter has ruled against the blacks
and Hispanics of the country". Judge Bell - who I love
and respect - takes comfort in the fact that the original
decision was written by two blacks will make our official
involvement on behalf of Bakke more palatable. It will
not and will only tend to discredit Days and McCree in
their own community.
4. As we are presently headed, we are going to suffer
the worst of both worlds. We are going to be held pol-
itically responsible for our involvement in a brief that
we have had little or no involvement in. Despite your
instructions that Stu and Bob "jump into the drafting",
the people at Justice have not allowed them to participate.
This has created something of an institutional problem
which we can solve with Judge Bell. He is probably not
even aware of it himself, but his people don't want us
involved.
As elected leader of the American people and chief
executive of the Executive Branch of the federal govern-
ment, you not only have a right but a duty to be heard
as our involvement in this brief will represent the artic-
ulation of your political philosophy on this matter to
the court and the American people.
Summary
I would strongly recommend that we take a fresh look
at this whole situation and answer several questions.
1) What are the options available to you for involvement
in this case?
2) Are there other mechanisms for the statement of your
political philosophy on this matter?
3) If we are involved in the Bakke case as a statement
of your political philosophy on this matter, what is
the proper role for the White House (i.e. Stu, Bob, and
others) in the drafting of the brief?
My ONE non-legal view is that this is a bad case and a
bad time for us to become involved. I don't see why we
could not state in our brief that this is a poor case
for us to use as the basis for our philosophical judgement
on the question of affirmative action and quotas. Conse-
quently, we make no judgment in our brief but simply
outline our philosophy without officially supporting
either the position of Bakke or the school.
Another option might be a statement to the Court or to
the American people that while we are anxious to express
ourselves on the subject matter, we will look for another
case or better mechanism that more clearly reflects the
real issues involved.