Executive Summary

On July 20, 1995, the University of California Regents, the 26 member governing board of America's most prestigious public university system, voted to end racial preferences in admissions, hiring and contracting. The culmination of 13 hours of often acrimonious testimony, protest, and debate, the Regents' vote was hailed by opponents of race-based preferences as the beginning of color-blind decision making at the University of California.

Although the Regents' vote was certainly historic, this briefing by Allan J. Favish, a Los Angeles based attorney, maintains that given the institutional history of the University of California, the vote may ultimately prove more symbolic than substantive.

Examining UCLA Law School's admission policy before and after the U.S. Supreme Court's Bakke decision outlawed racial quotas in 1978, Favish shows how UCLA Law circumvented the spirit, if not the letter, of the decision by merely expanding its special admissions program to include a handful of white "litigation shields." Citing defiant quotations in the press from UC officials following the vote, Favish predicts that UC officials will try to make an end run around the Regents' decision to end racial preferences.

This piece is a cautionary tale of how institutional interests can circumvent public policy. To ensure that the public officials who run University of California abide by the Regents' resolutions, Favish recommends that the schools publish their admission data annually. Reasoning that public institutions cannot openly thwart the public's will, it is precisely this reform that Favish is seeking to enact through a consumer fraud lawsuit he has filed against the Regents with regard to the University of California's law and medical schools.

-- Michael Lynch
Public Policy Fellow

BACKGROUND

Twenty-six years to the day after man first walked on the moon, July 20, 1969, the Regents of the University of California took an equally historic step -- they voted to end racial preferences in admissions.

The vote will not prohibit applicants of all races from providing evidence that their grades and test scores are not accurate indicators of their true potential. There is no serious opposition to an admissions policy that allows for such evidence.

But there is serious institutional opposition to the elimination of racial preferences and this raises questions about whether UC administrators and faculty will cease using race as a factor in admissions. Larry Vanderhoef, chancellor of UC Davis said, "I am not yet ready to concede that we will not be able to pursue diversity, even with these new rules."1 Another UC official, who requested anonymity, said that admission officers were sure to figure out a way to "wriggle around" the new rules.2 Cornelius Hopper, UC vice president for health affairs said:

We have very creative faculties. I am hopeful that they will be able to find ways to achieve diversity. This can result in a student body that will be substantially the same as it is today.3

A New York Times reporter wrote that "many in the academic community appeared to be convinced that they could merely do an end run around the Regent's mandate."4 According to the Los Angeles Times, UC President Jack W. Peltason stressed that the board's action, which he opposed, had to do "with means, not with goals." The university, he said, continues to value diversity and will work hard to develop new procedures and criteria that will ensure that UC's student body mirrors California's population.5 Imagine if subsequent to being ordered to cease using race as a factor, George Wallace stated the following:

I am not yet ready to concede that I will not be able to pursue my white on white color scheme, even with these new rules.

My admission officers will be sure to figure out a way to "wriggle around" the new rules.

The University of Alabama has a very creative faculty. I am hopeful that they will be able to find ways to achieve a white on white color scheme. This can result in a student body that will be substantially the same as it is today.

The University of Alabama continues to value a white on white color scheme and will work hard to develop new procedures and criteria that will ensure that our student body mirrors the white portion of our population.

Presented with such statements anybody would have reasonable cause for doubting whether Wallace would comply with the order in good faith. The same is true for today's UC personnel.

However, in addition to their statements, the best means for telling how well UC personnel might adjust to this policy change is to study how they adjusted the last time they had to make a similar change in the wake of the 1978 Bakke decision. The evidence involving UCLA School of Law (UCLaw) is not encouraging.

Documents show that some members of the 1978 faculty of UCLaw deliberately created its present admission system in order to achieve the same racial results as its pre-1978 unconstitutional racial quota system.

The documents on file at UCLaw's library include an unpublished student paper dated December 19, 1988, entitled "From Reform to Institution: The History of UCLA Law School's Affirmative Action Admissions Procedure," by Sam Magavern.6

Magavern's cited references include personal interviews he said he conducted with UCLaw professors Jonathan Varat, Stephen Yeazell, Reginald Alleyne, Kenneth Graham, Kenneth Karst, Leon Letwin, present Dean Susan Prager, present Dean of Admissions Michael Rappaport, and former Deans Murray Schwartz and William Warren.7

The documents also include a report dated November 21, 1978, from the "Admissions Task Force, 1978-79," to the faculty. According to Magavern this Task Force Report was written by its chairman, Prof. Kenneth Karst.8 There is also a letter from Dean Prager to the students dated April 13, 1987, and a memo from Prof. Alleyne to his faculty colleagues dated June 1, 1978.

The Task Force Report was in response to the U.S. Supreme Court's decision in University of California Regents v. Bakke, 438 U.S. 265, 57 L.Ed.2d 750 (1978), holding that UC Davis School of Medicine's racial admissions quota was illegal. Prior to Bakke, UCLaw also was operating a racial admissions quota that violated the law.9

Discussing the 1967 genesis of UCLaw's racial admissions program, Magavern cited interviews with Graham, Letwin and Schwartz:

In remembering the decision to create the program, many professors cite the Watts riots in the summer of 1965 as creating a feeling of urgency about issues of race relations and discrimination [citations]. The faculty felt both an ethical and a practical imperative to do their part in defusing a crisis situation.10

In addition to concern about a possible future riot, it's apparent that the program's central core -- partial sacrifice of the highest academic standards in favor of racial standards -- partially arose from a belief that the highest academic standards were not appropriate for non-whites. Magavern noted that several years into the quota program, its driving force, Prof. Letwin, wrote that it was "indefensible that the [admissions] decisions should reflect solely the values of white academics."11

This idea was supported by some students. Magavern wrote about a 1975 Admissions Committee meeting where position papers were presented by the minority student associations:

In their position papers, the groups argued that the PI index ["Predictability Index,"comprised of grades and test scores] measured nothing but "how removed the Third World applicants are from their own racial and cultural group" and "the degree of exposure to predominant white culture and values in the United States."12

The Magavern Report shows that Prof. Letwin's willingness to release minority applicants from "white academic standards" was evident in the early days of the quota program:

[I]n a speech to the Conference of California Law Schools in Fall, 1968, Letwin advocated a goal of minority enrollment approximating the minority population in California, which was then about 20-25%.13

There is no doubt that UCLaw's pre-Bakke admission program used racial quotas. One writer noted UCLaw's pre-Bakke "32-student quota for Chicanos."14 Magavern wrote that after the first few years, the minority "quotas remained intact from 1971 to 1978."15 The existence of the quota was made more explicit in Prof. Alleyne's pre-Bakke memo to the faculty wherein he referred to "the generally fixed number of slots we have managed to fill the last few years,"16 "the quota"17 and "the present quota."18

The quota clearly sacrificed the highest academic standards in favor of racial considerations. Even Prof. Letwin told the faculty that the quota program sought admission of individuals who "have the ability to successfully complete law school careers but who do not qualify under our present extremely high (and rising) standards."19 Citing his interview with Prof. Alleyne, Magavern wrote that the "consensus among the faculty was that it was accepting about as many applicants as had the minimum qualifications to make it through the school and the bar."20

Magavern wrote that the Bakke decision prompted the creation of a new task force to revise UCLaw's admissions policy, "which most of the faculty thought made UCLA's use of numerical quotas clearly unconstitutional."21 Prof. Karst wrote in the post-Bakke Task Force Report that "on any view of the [Bakke] decision our Law School's admissions system must be revised if it is to pass the test of legality."22 Citing his interviews with Karst and Warren, Magavern wrote that UCLaw "took the constitutional issue very seriously, in part because at least one organization, the B'nai Brith Anti-Defamation League, had intimated that it was considering a lawsuit."23

According to Magavern, Karst "talked informally with most of the faculty while preparing" the Task Force Report.24 Magavern wrote:

The consensus was broad that the school wanted to preserve its minority enrollment at current levels while remaining safe from litigation, and that the best way to do so would be to follow what Karst calls the "how-to-do-it manual" of Justice [Lewis] Powell's opinion, which gave a seal of approval to the "diversity" approach used by Harvard College ...25

Thus, it appears the faculty decided to maintain the current level of minority enrollment and claim the numbers were required for "diversity," rather than have no predetermined quota, assess all applicants in good faith under Justice Powell's guidelines, with the possibility that the level of minority enrollment might be significantly lower or higher than present levels.

THE REAL BAKKE

Although not explained in detail by Magavern, Justice Lewis F. Powell's opinion in Bakke has been widely misinterpreted and as such it merits attention.

Four of the Justices in Bakke found that UC Davis medical school's explicit racial quota did not violate statutory or constitutional law. Four others found that it violated Title VI of the 1964 Civil Rights Act, thus making it unnecessary to reach the constitutional issue. Justice Powell found that the quota violated the U.S. Constitution but held that "competitive consideration of race and ethnic origin"26 can be legal.

Understanding what Powell had in mind has eluded most practitioners of racial preferences. Partly this is because Powell's conclusion rests on a major error and partly because the practitioners ignore much of what Powell said. For example, many of these practitioners probably will be surprised to learn that Powell said:

Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.27

Nevertheless, Powell's opinion is widely cited for its approval of racial diversity as a legitimate goal in school admissions. This widely held view of Powell's opinion is superficial. Upon closer examination it's clear that the diversity Powell sanctioned was "not an interest in simple ethnic diversity,"28 but rather, a diversity that promotes an "atmosphere of speculation, experiment and creation."29 According to Powell, the value of diversity lies in its ability to foster learning by the students.30

Powell's idea of diversity is that a university should be "accorded the right to select those students who will contribute the most to the robust exchange of ideas."31 Powell said a student may bring to a professional school "experiences, outlooks, and ideas that enrich the training of its student body..."32 He made it clear that value lies in ideological and intellectual diversity, not a simple ethnic diversity. Powell concluded that in achieving this ideological and intellectual diversity, race and ethnicity may be "simply one element -- to be weighed fairly against other elements -- in the selection process."33

Powell never said that all individuals of a particular race or ethnicity think alike. He never identified any particular "outlooks and ideas" that an individual is more likely to have by virtue of his or her race. In fact, he failed to cite any evidence linking one's race with one's moral perspective, ideology or intellectual ability. Nevertheless, the practitioners of racial preferences act as if Powell proved these propositions.

These practitioners believe in an unproved stereotype of minority students as having some "outlooks and ideas" that do not occur to any white students. This unproved stereotype is at the heart of their support for racial diversity as a proxy for Powell's ideological and intellectual diversity.

If Powell endorsed this unproved stereotype by mentioning race as an element that may be "weighed fairly against other elements," he did so without citing any proof. This point must be stressed: Justice Powell's conclusion that race could be given some consideration is based on an unsupported assumption that race could be used as a proxy for certain under-represented "outlooks and ideas." Reliance on this unsupported assumption was Powell's major error.

This unsupported assumption also was evident in the statement of Harvard College's admissions policy, which Powell appended to his opinion.34 However, this was not the only weakness in the Harvard statement. In one paragraph the statement said the following:

In Harvard College admissions the Committee has not set target-quotas for the number of blacks.... 10 or 20 black students [out of 1,100] could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.... Their small numbers might also create a sense of isolation among the black students themselves and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But that awareness does not mean that the Committee sets a minimum number of blacks...who are to be admitted.35

Harvard's statements that there are no "target-quotas for the number of blacks" and that it doesn't set "a minimum number of blacks" conflicts with its statement that "20 black students could not begin" to bring black "points of view" to the student body and that as few as 20 black students "might ... create a sense of isolation among the black students themselves...."

Unless Harvard was admitting less blacks than it believed necessary to bring black "points of view" to the student body and prevent a "sense of isolation," despite its awareness that "there is some relationship between numbers and achieving" these benefits, then Harvard clearly had a "target-quota" and "minimum number" for blacks in excess of 20. Quite simply, the Harvard statement is deceptive on this point.

It is also noteworthy that the Harvard statement was indefinite as to the "sense of isolation," which the statement said "might" be created from having too few blacks. In the absence of any evidence for the proposition it appears to be speculation. Moreover, given the lowering of academic standards for black applicants, there is nothing in the statement to prove that such a "sense of isolation," if it materialized, would be caused by race.

However, despite Powell's citation to the intellectually muddled Harvard statement, he did conclude that "the assignment of a fixed number of places to a minority group is not a necessary means toward" achieving "educational diversity."36 Powell only said that race could be given consideration as one of several factors.

The issue of whether race could be given consideration leads directly to the issue of the extent to which race could be given consideration. This is addressed by the most ignored part of Powell's opinion -- his statement that race may be "weighed fairly against other elements."37 The practitioners of racial preferences act as if he never used the word "fairly."

The weakness of Powell's opinion is that given the true nature of his "diversity" as being "educational," i.e., intellectual and ideological, rather than racial, and the absence of any evidence justifying the use of race as a proxy for certain under-represented "outlooks and ideas," a "fair" weighing of the racial element should result in it being given no weight, especially when compared with other elements like a significantly higher level of demonstrated intellectual achievement as represented by grades and test scores, and other nonracial factors that are important in making better students and professionals.

In Bakke's wake: Business as usual at UCLA Law

The UCLA Task Force Report stated that "racial/ethnic diversity" brought "ideas and perspectives to class discussions that were largely ignored in the years before our former special admissions program was adopted."38 However, the Task Force Report did not give any specific examples of such "ideas and perspectives" or demonstrate how such "ideas and perspectives" improved the education of any students to a degree that would justify the lowering of academic standards.

This leads one to wonder what "ideas and perspectives" were so lacking that it became worth accepting otherwise academically minimally qualified applicants to the exclusion of academically better qualified applicants. Apparently these new "ideas and perspectives" did not include sympathy for the civil rights movement since those "ideas and perspectives" were already plentiful among UCLaw students before any racial preferences and quotas were used.

According to Magavern, Prof. Graham said that prior to the school's affirmative action program, UCLaw's students "were mostly Jewish students from the west side of Los Angeles who were generally liberal on civil rights issues."39 Citing the school newspaper, the UCLA Docket, Magavern wrote that "[t]hree students had spent the summer of 1965 on a fact-finding tour of the South with the Law Students Civil Rights Research Council, and a chapter of the Council had formed on campus that fall."40

Therefore, the Task Force Report appears to equate racial diversity with intellectual or ideological diversity -- a proposition that is not factually supported in the Task Force Report or in Powell's opinion.

Also there is no discussion in the Task Force Report about the consequences of a policy that virtually ensures a significant intellectual mis-match (as measured by GPA and Law School Admission Test (LSAT) score) between significant numbers of white and Asian students and significant numbers of black, Latino and Native American students. If an evil bigot wanted to teach students that whites and Asians were generally intellectually superior to blacks, Latinos and Native Americans, could there be a better way to do it?

The Task Force recommended that 40 percent of the entering class be reserved for "diversity" applicants who would be assessed on the basis of multiple factors, including race and ethnicity in addition to grades and LSAT scores. Magavern asked: "Given that minority enrollment was running about 20-25% under LEOP [Legal Educational Opportunity Program, the pre-Bakke system], why did the Task Force choose such a high figure?"41 Citing his interview with Karst, Magavern wrote: "The answer, according to Karst, was 'pure litigation strategy.'"42

According to Magavern:

The Task Force, being cautious litigators and liberal policy makers, felt that the diversity enrollment would have to be 35-40% to fend off any claims that it was simply the LEOP system in disguise. In other words, 10-20% non-minority students would be enrolled as a kind of litigation buffer.43

However, as noted by Magavern, there was a danger of switching from an approximate 25 percent minority quota system to a 40 percent diversity system that included white diversity students. Under the pre-Bakke racial quota, the number of students who would be most likely to fail the bar exam and depress the school's overall bar passage rate was primarily related to the numbers admitted under the quota. In contrast, the post-Bakke 40 percent diversity system's need for white "litigation buffers" meant that academically unprepared whites also might be admitted, thus significantly increasing the number of students who fail the bar exam and thereby making the school look bad without the benefit of adding to the numbers of minority students.44

According to Magavern, some faculty members like Karst were willing to accept white diversity applicants with relatively low grades and LSAT scores as long as they were still "interesting," while other faculty members viewed the white diversity students "as mere litigation shields" who should show the best academic promise.45

Citing his interview with Prager, Magavern said Prager feels that:

[D]iversity white students should have qualifications very close to those of the automatic admittees. She feels relatively little commitment to the kind of diversity Karst envisioned; for her, the admission of white diversity students is less an important end in itself than a way to preserve minority enrollment after Bakke.46

Magavern said Prager's philosophy was "shared by many other faculty members as well."47 Citing his interview with Dean of Admissions Rappaport, Magavern wrote:

Rappaport states that while attempting to keep minority enrollment at current levels he is decreasing the quantity and increasing the academic qualifications of the white diversity students. For example, he states that at this point [1988] a low income or blue collar background [sic] will add little to a white student's chances unless the poverty is fairly extreme.48

Magavern wrote that "the Task Force made it clear that the core of LEOP [Legal Educational Opportunity Program], the numerical level of minority enrollment, would remain basically constant."49 The Task Force Report stated:

The educational benefits of a diversified student body cannot be achieved by the selection of just a handful of applicants from a particular racial/ethnic group.... In the language of the Harvard College statement quoted in the appendix to Justice Powell's Bakke opinion, the "truly heterogeneous environment" sought for educational purposes "cannot be provided without some attention to numbers." We have not recommended any specific numerical goals or targets for the admission of applicants who will help to diversify our student body. Nonetheless, members of this Faculty know from their experience that small numbers of students of a particular distinctive background, such as members of a racial/ethnic minority, may in fact have their education impaired if they feel isolated in the Law School. In the early days of the LEOP program, for example, when the number of minority students in the school was very small, we saw the negative influence of such a sense of isolation on the education of the few blacks and Chicanos then in the student body.50

The Task Force Report then made clear that the pre-Bakke level of minority enrollment must be continued under the post-Bakke admission system:

[T]here is such a thing as a "critical mass" of students with a particular sort of background that is necessary to avoid the sense of isolation and to make such students feel comfortable in speaking in the classroom and otherwise participating actively in the educational process. ... Our recent levels of minority representation have enabled us to reap the rewards of this part of "educational pluralism." ... Thus, while we do not propose any specific numerical goals for admission of students with various characteristics in the interest of student diversity, we think that any very substantial decreases in the number of racial/ethnic minority students ... would impair the Law School's efforts to achieve the benefits of a diverse student body.51

Magavern concluded that the Task Force's stated goals of achieving educational benefits from racial diversity "were designed to mimic Powell's opinion and to fend off litigation..."52 Citing his interview with Task Force member Prof. Alleyne, Magavern wrote that Alleyne "felt that talk of the 'educational benefits of diversity' was more romantic than realistic and [Alleyne] did not take it particularly seriously."53

The Task Force based its call for a "critical mass" of minority students largely on the "sense of isolation" supposedly felt by the minority students in the early days of the racial quota program. However as reported by Magavern, of the 17 students enrolled under the racial quotas in 1967, only ten got to the bar exam and only two of them passed.54 Of the 26 enrolled in 1968, only 35 percent of those who took the bar exam passed on their first attempt, while only 65 percent passed after multiple attempts.55 Of the 47 enrolled in 1969, only 15 percent of those who took the exam passed on their first attempt.56

There is no discussion in the Task Force Report about the possibility that the "sense of isolation" felt by these minority students might have been caused by their intellectual mis-match with the non-minority students and that the "sense of isolation" also would have been felt by white students who had been so mis-matched.

Nor is there discussion in the Task Force Report about the effects of an admissions policy that allows for individuals to be identified as those who probably owe their admission to the lowering of intellectual standards, including individuals who would have been admitted without the standards being lowered.

As noted by Magavern, after implementation of the post-Bakke forty percent solution, "minority enrollment did not fall under the diversity program.57 Citing his interview with Rappaport, Magavern wrote that Rappaport's "method is to require additional diversity factors to be present for each subgroup to the extent that they are being admitted automatically."58 Therefore, if enough members of a race qualify for admission on academic grounds, without receiving any preference for race, there is no reason to give racial preferences to members of that race. Thus, by definition, except for the token whites and Asians who act as "litigation buffers," the "diversity" students are members of races who do not qualify on academic grounds in numbers sufficient to attain the "critical mass" or quota deemed desirable by UCLaw.

UCLaw admits academically less qualified black, Latino and Native American applicants, to the exclusion of academically more qualified white and Asian applicants, in order to expose white and Asian students to "outlooks and ideas" to which they would not otherwise be exposed, although neither Justice Powell nor the Task Force Report specified any of these particular "outlooks and ideas."

Additionally, this is done in sufficient numbers to keep the black, Latino and Native American students from feeling "isolated" when that isolation appears more likely to be caused by the intellectual mis-match with their classmates rather than by any racial differences.

The admission of applicants with lower academic qualifications (the "diversity" students) has resulted in special remedial classes and support programs designed primarily for such students.59

UCLaw's rationale for its forty percent solution made the issue of Asian applicants especially troublesome. Magavern wrote that in 1981-82, some faculty members found it inappropriate to continue to admit Asians under the diversity program because increasingly they were able to be admitted without help from a racial preference.60 Magavern said this led to an incident that Rappaport recalled where one of the admissions committee's three reading teams decided not to admit any Asian students. According to Magavern, "this may have been 1985, when under diversity only 19 Asian students were admitted and 9 enrolled -- compared to 44 admittees and 25 enrollees in 1986."61 Clearly, by denying consideration to those Asian applicants because of race, this reading team violated the rights of those Asians under the state and federal Constitutions and the Civil Rights Act of 1964.

Despite the Task Force Report's statements that the faculty wanted to follow the law, it's clear that the documents, including Magavern's description of his interviews with Karst, Prager, Rappaport and Alleyne, and the Task Force Report itself, show that UCLaw's present post-Bakke diversity admissions program is a subterfuge for maintaining the racial quotas that Bakke held were illegal.

Writing about Bakke in a 1981 law review article, Prof. Alleyne repeated the errors of the Task Force Report and said, "the end result of Bakke is to permit admissions officers and faculties with pre-Bakke commitments to special minority admissions policies to achieve pre-Bakke results with the use of different and Bakke-approved admissions procedures"63 "[s]o long as the numbers involved are not predetermined, fixed and per se exclusionary..."64

In other words, a pre-Bakke racial quota can be maintained under the guise of racial diversity masquerading as intellectual and ideological diversity, as long as nobody expressly says there is a fixed number of spaces reserved for the preferred minorities.

In the same article, Alleyne continued the elevation of racial standards at the expense of the highest academic standards by saying: "[A]t the heart of minority admissions needs"65 is "the resulting effect on minority admissions capability"66 from the "large numbers of the most academically gifted"67 applicants who are driving the average entering GPAs and LSAT scores "far above what is required to produce a good lawyer."68

In other words, there is pressure to reject less "academically gifted" minority applicants in favor of non-minority applicants who have more than what is necessary to be "good" lawyers. In Alleyne's view, UCLaw should not use all its class space to produce the best lawyers it can if this prevents the school from producing some minority lawyers who are merely "good."

Prager's 1987 letter to the students said, "the basic post-Bakke admissions policy, articulated in the 1978 Report of the Task Force on Admissions, will continue to be the admissions policy of the school."69

Justice Powell raised the possibility that a university operating his diversity program "would operate it as a cover for the functional equivalent of a quota system."70 Justice Harry Blackmun's pro-quota Bakke opinion noted that the "cynical" may say that under a diversity program "one may accomplish covertly what Davis concedes it does openly."71

The UCLaw documents show that the concerns of Powell and Blackmun were legitimate and that the "cynical" were right.

Only the Regents can say whether they knew all the facts about the history of UCLaw's racial admissions policy before they voted to end racial preferences, but a letter dated June 30, 1995, from regent Ward Connerly to fellow regent Clair W. Burgener describes Connerly's investigation of UC professional school and undergraduate admissions as revealing "noncompliance with Bakke" and a "picture ... of an institution which has de facto racial quotas, which refuses to acknowledge the true extent to which race is used in its admissions activities, and which is determined to maintain the status quo."

Connerly continued:

I came to the conclusion that we are breaking the law. There is no other way to put it. WE ARE BREAKING THE LAW!!!. . . .

[T]here is absolutely no empirical evidence to support the contention that racial diversity translates into greater quality.. . . .

[I]t is very important that you understand the extent to which the university is currently basing many of its faculty and admissions decisions on race. We are breaking the law and we are a prime target for a major class action suit, if there is anyone out there who is willing to spend the time to gather the necessary data to prove the case.

CONCLUSION

Given the history of UC's compliance with Bakke, the only way to ensure that UC law and medical school personnel eliminate race as an admissions factor is to force them to publish their own data in a grid/table format showing numbers of applicants who applied and who were offered admission, categorized by GPA, test score percentile and race.

I received raw admissions data from UC law and medical schools in 1994 and 1995 only after filing lawsuits against the Regents under the California Public Records Act.72 On June 5, 1995, prior to the historic Regents' vote, I filed a lawsuit in Los Angeles Superior Court on behalf of the general public against the Regents under Cal. Bus. & Prof. Code sec. 17200 alleging consumer fraud in connection with their race-based law and medical school admissions.73

The lawsuit focuses on UC's statement to prospective applicants (consumers who pay application fees) that it does not discriminate on the basis of race in its law and medical school admissions, while simultaneously telling these consumers that race is one of many other factors considered in making admission decisions. The suit alleges that the nondiscrimination statement is false and that the statement that "race is one of many other factors" is misleading without disclosure of the extent to which an applicant's chance for admission is affected by his or her race.

The lawsuit does not challenge UC's alleged right to discriminate on the basis of race in admissions, but merely alleges that UC must tell consumers the truth about what it is doing.

The lawsuit seeks an injunction forcing UC to eliminate its nondiscrimination statement as long as it continues to discriminate and to publish the disclosure tables described above in its application materials so that consumers can decide for themselves whether the time and cost of applying is justified by their chances for admission. Such tables, based on raw admissions data from UC's law and medical schools, are attached as exhibits to the complaint.

When such tables are regularly published in UC application materials consumers will know the truth about their chances for admission and the public will know the truth about whether UC personnel are using race as an admissions factor in contravention of the Regents' mandate.

Great universities are supposed to encourage a search for truth. What is the harm in telling the truth?

--by Allan J. Favish
Attorney at Law
Tarzana, California
Phone/Fax: (818)343-9095
E:mail: 71177.3044@Compuserve.com; AllanF8702.@aol.com

* Part of this briefing has been previously published in the Los Angeles and San Francisco Daily Journals on July 27, 1995 and August 15, 1995

Endnotes

1 New York Times, July 24, 1995, at 1, col.1.

2 Id.

3 Id.

4 Id.

5 Los Angeles Times, July 25, 1995, at 1, col.5.

6 Hereinafter "Magavern Report." Magavern says he was a UCLaw student at the time he wrote the paper (telephone conversation between Allan J. Favish and Sam Magavern, June 12, 1995).

7 Magavern says his descriptions of the interviews were checked for accuracy by the interviewees before his paper became final. Id.

8 Magavern Report, supra at 23.

9 See text accompanying notes 14-18, 21-22, infra; Muratsuchi, "Race, Class, and UCLA School of Law Admissions, 1967-1994," 16 Chicano-Latino L. Rev. 90, 106 (1995) (citing Magavern Report).

10 Magavern Report, supra at 5; Muratsuchi, supra n.9, at 91 (citing Magavern Report).

11 Letwin, "Some Perspectives on Minority Access to Legal Education," 2 Experiment and Innovation 1, 16 (1969), quoted in Magavern Report, supra at 9; also cited in Muratsuchi, supra n.9, at 96.

12 Magavern Report, supra at 20, quoting Hostile Witness (UCLA Chapter of the Nat'l Lawyers Guild, Los Angeles, Cal.), April 23, 1975, at 1, 5; Muratsuchi, supra n.9, at 103 (citing Hostile Witness).

13 Magavern Report, supra at 10, citing UCLA Docket, November 25, 1968, at 1 (student newspaper).

14 Muratsuchi, supra n.9, at 110.

15 Magavern Report, supra at 15.

16 Memo from Prof. Reginald Alleyne to Faculty, dated June 1, 1978, at 2.

17 Id., at 3.

18 Id.

19 Muratsuchi, supra n.9, at 94, quoting Memorandum from the Admissions and Standards Committee to the Faculty, at 6-7 (Oct. 18, 1966) (on file with the UCLA School of Law La Raza Law Students Association).

20 Magavern Report, supra at 15.

21 Id., at 22.

22 Task Force Report, supra at 2.

23 Magavern Report, supra at 22-23.

24 Id., at 23.

25 Id. Muratsuchi, supra n.9, at 106.

26 University of California Regents v. Bakke, 438 U.S. 265, 320, 57 L.Ed.2d 750 (1978).

27 Id., at 307.

28 Id., at 315.

29 Id., at 312.

30 Id., at 312 n.48.

31 Id., at 313 (emphasis added).

32 Id., at 314.

33 Id., at 318 (emphasis added).

34 Id., at 321.

35 Id., at 323.

36 Id., at 316.

37 Id. at 323 (emphasis added).

38 Task Force Report, supra at 5.

39 Magavern Report, supra at 6.

40 Id.

41 Id., at 23.

42 Id.

43 Id.; quoted in Muratsuchi, supra n.9, at 108.

44 Magavern Report, at 35-37.

45 Id., at 25.

46 Id., at 40; Muratsuchi, supra n.9, at 120 (citing the Magavern Report).

47 Magavern Report, supra at 40.

48 Id., at 40; Muratsuchi, supra n.9, at 120-121 (citing the Magavern Report).

49 Magavern Report, at 24.

50 Task Force Report, supra at 5-6.

51 Id., at 6-7.

52 Magavern Report, supra at 24.

53 Id., at 25.

54 Id., at 16 & Appendix.

55 Id.

56 Id.

57 Id., at 29 (emphasis added).

58 Id., at 40.

59 Muratsuchi, supra n.9, at 113-114.

60 Magavern Report, supra at 30-31.

61 Id., at 31.

62 Task Force Report, supra at 3.

63 Alleyne, "Regents v. Bakke: Implementing Pre-Bakke Admissions Policies With Post-Bakke Admissions Procedures," 7 The Black Law Journal 290, 291 (1981).

64 Id., at 293-294.

65 Id., at 294.

66 Id.

67 Id.

68 Id.

69 Letter from Dean Susan Prager to the students, dated April 13, 1987, at 2.

70 Bakke, supra n.19, at 318.

71 Id., at 406.

72 Cal.Gov.Code sec. 6250 et seq. This is similar to the federal Freedom of Information Act.

73 Favish v. The Regents of the University of California, Los Angeles Superior Court case no. BC129082. The complaint, including the data exhibits, can be downloaded from Compuserve's Hot Topic library in the Legal Forum, where the file has an upload date of 6/12/95, and from America Online's Legal Information Network library, where the file has an upload date of 6/30/95.

On August 9, 1995, Los Angeles Superior Court Judge Dion Morrow ruled that the anti-consumer fraud law under which the Regents were sued (Bus. & Prof. Code sec.17200) does not apply to governmental entities. The case is on appeal before the Second Appellate District under case no. B095392.

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