DeRonde v. Regents of the University of California , 28 Cal. 3d 875 ( 1981 )

Opinion

RICHARDSON, J.

Were the admissions procedures permitting consideration of “ethnic minority status” as a factor in the 1975 selection of the first year class at King Hall, the University of California at Davis School of Law, violative of the equal protection guarantees afforded nonminorities under the federal or state Constitutions? We conclude that they were not.

Plaintiff Glen DeRonde, a white male, was 1 of 2,238 applicants seeking enrollment in King Hall in 1975. On the basis of criteria hereinafter described, 406 applicants were extended offers of admission. In July 1975, DeRonde, an unsuccessful applicant, sought mandamus in the Yolo County Superior Court against the Regents of the University of California and the Dean of King Hall (collectively described herein as the University), to compel his admission to King Hall and to recover damages for his exclusion. He attacked the University’s selection procedures alleging that they were unconstitutional because of the preferences extended to minority applicants.

In February 1976 the trial court filed its notice of an intended decision holding that because DeRonde would have been unsuccessful even had the challenged procedures not been used, DeRonde was not entitled to the relief requested. Nonetheless, the court examined the merits of DeRonde’s constitutional challenge, and concluded that because the University’s admissions procedures were facially discriminatory they violated the equal protection clauses of both the state and federal Constitutions. The court therefore enjoined the University from utilizing any admission criteria based on an applicant’s race, color or ethnic origin.

Following the announcement of the intended decision, several interested persons and organizations filed motions to intervene. These motions were denied and a judgment was entered in December 1976. (Although the denial of intervention was affirmed in a separate appeal, various unsuccessful interveners have appeared herein as amici curiae.) The University filed a notice of appeal, and DeRonde has cross-appealed.

In the interim DeRonde has graduated from another law school and has been admitted to the State Bar. Although he no longer seeks entry to King Hall, we have chosen not to dismiss the case as moot. The trial court judgment, enjoining the University, as it does, from its continued use of certain of its admissions criteria, has cast a substantial cloud of uncertainty over the University’s multiple and widely used procedures. The parties and amici before us have thoroughly briefed the constitutional issues and have urged us to resolve them. We have the benefit of additional instructive and controlling federal authority. There is ample precedent for appellate resolution of important issues of substantial and continuing public interest which otherwise may have been rendered moot and of no further immediate concern to the initiating parties. (E.g., Johnson v. Hamilton (1976) 15 Cal.3d 461, 465 [125 Cal.Rptr. 129, 541 P.2d 881], and cases therein cited.) We conclude that this is such a case and that the validity of “race conscious” or “race attentive” admissions programs is an important question of continuing statewide interest. Accordingly, we will resolve the issue.

After first examining the law school’s admissions procedures we apply both the constitutional principles and analyses contained in appropriate federal and state authorities.

I. The University’s 1975 Admissions Procedures

The record discloses that in selecting candidates for admission to King Hall in 1975 the University relied principally on a formula which combined an applicant’s previous academic grade point average (GPA) with his or her score on the standardized law school admissions test (LSAT). This formula yielded a predicted first year average (PFYA) which, it was hoped, measured, at least roughly, the applicant’s potential for law study.

Believing, however, that the foregoing formula tended to ignore other significant and relevant selection factors, the University considered several additional background elements to supplement or mitigate a lower PFYA. These factors included (1) growth, maturity and commitment to law study (as shown by prior employment, extracurricular and community activities, advanced degrees or studies, and personal statements and recommendations), (2) factors which, while no longer present, had affected previous academic grades (such as temporary physical handicaps or disruptive changes in school or environment), (3) wide discrepancies between grades and test scores where there was indicated evidence of substantial ability and motivation, (4) rigor of undergraduate studies, (5) economic disadvantage, and (6) “ethnic minority status” contributing to diversity.

It is the consideration by the University of the final factor, “ethnic minority status,” which is the principal target of DeRonde’s attack. Trial testimony established that “ethnic minority status” was defined by the University as including Asians, blacks, Chícanos, native Americans and Filipinos. This grouping generally corresponds to the ethnic categories defined by the federal Equal Employment Opportunity Commission in its public reports. The record reflects that the University’s reasons for considering minority status were primarily twofold: First, an appreciable minority representation in the student body will contribute a valuable cultural diversity for both faculty and students and, second, a minority representation in the legal pool from which future professional and community leaders, public and private, are drawn will strengthen and preserve minority participation in the democratic process at all levels. In short, it was believed that the individual and group learning experience is enriched with broadly beneficial consequences both to the profession and to the public at large. We carefully emphasize that although minority status was included as one of several pertinent selection factors, the University did not employ any quota system or reserve a fixed number of positions for any minority applicants in its entering class.

Just as a relatively low PFYA might be increased by utilization of any of the foregoing factors, alternatively, a relatively high PFYA could be reduced by considering (1) the applicant’s prior schools attended, (2) the difficulty of his or her prior course of study, (3) variations in an applicant’s multiple LSAT scores, (4) the absence of any factors indicating maturity or motivation, and (5) the applicant’s advanced age.

As a consequence of this formulation, in 1975, the 406 students to whom the University offered admission included 135 minority applicants, and more than 1,800 applicants including DeRonde were rejected. DeRonde’s 3.47 GPA and 575 LSAT score produced a 2.70 PFYA. The PFYAs of successful applicants ranged from 2.24 to 3.43. Sixty-nine minority applicants were accepted with PFYAs lower than DeRonde’s. On the other hand, the more than 800 unsuccessful applicants who had higher PFYAs than DeRonde included 35 minority applicants. It was on the basis of these latter statistics that the lower court found that DeRonde would have been rejected for admission even if the University had not employed an admissions procedure which gave consideration to “ethnic minority status.”

We examine the constitutional issues.

II. Federal Constitution

Our analysis of the federal constitutional questions is both aided and controlled by the decision of the United States Supreme Court in University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L.Ed.2d 750, 98 S.Ct. 2733]. In that case, Bakke, a disappointed white male applicant for admission to the School of Medicine at the University of California at Davis, challenged on equal protection grounds an admissions policy which reserved to disadvantaged minority (Asian, American Indian, Black, and Chicano) students 16 of the 100 available seats. Although a majority of the high court invalidated this fixed quota system, multiple opinions were filed.

Four justices (Stevens, J., joined by Burger, C. J., Stewart and Rehnquist, JJ.) found it unnecessary to reach the constitutional issue, concluding as they did that the Davis quota system violated the general antidiscrimination provisions of title VI of the federal Civil Rights Act. (See 438 U.S. at pp. 408, 421 [57 L.Ed.2d at pp. 845, 853].) Four other justices (Brennan, White, Marshall, and Blackmun, JJ., writing a joint opinion hereafter referred to as the Brennan opinion) were of the view that the quota system (as well as other race conscious admissions systems) was proper under both the Civil Rights Act and the federal Constitution, as a means of overcoming the effects of past discrimination. (See id., at pp. 324, 362, 369 [57 L.Ed.2d at pp. 792, 816, 821].)

Justice Powell, writing separately and joined by no other justice, concurred in striking down the Davis quota system, thereby affording majority support for its invalidity. In stating his view that the Davis quota system was unconstitutional under the federal equal protection clause, he characterized the Davis procedure as one employing “an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class.” (P. 319 [57 L.Ed.2d at p. 789].)

A majority of the justices voted to overturn the challenged system. Of even greater importance to the resolution of the present case, however, a separate but clear majority of the high court (namely, Powell, Brennan, White, Marshall, and Blackmun, JJ.) indicated approval of race conscious admissions programs similar to the University’s procedure under scrutiny here. (See pp. 316-319 [57 L.Ed.2d at pp. 787-789] [opn. of Powell, J.]; 324-326, and fn. 1 [57 L.Ed.2d at pp. 792-793] [opn. of Brennan, J.].) Because two separate lines of high court reasoning converged to reach this conclusion, we review each opinion separately.

In passing, we note that a comparable analytical approach was used by the Washington Supreme Court in McDonald v. Hogness (1979) 92 Wn.2d 431 [598 P.2d 707, 712-715], certiorari denied 445 U.S. 962 [64 L.Ed.2d 238, 100 S.Ct. 1650], in upholding a race-sensitive medical school admissions program closely akin to the University’s procedures herein challenged. Bakke itself has drawn much academic interest and attention, expressed in many useful law review articles, several of which adopt a comparable analysis of the various Bakke opinions. (See, e.g., A Symposium: Regents of the University of California v. Bakke (1979) 67 Cal.L.Rev. 1 et seq.; Karst & Horowitz, The Bakke Opinions and Equal Protection Doctrine (1979) 14 Harv.Civ.Rights-Civ. Lib. L.Rev. 7; Lesnick, What Does Bakke Require of Law Schools (1979) 128 U.Pa. L.Rev. 141; Stone, Equal Protection in Special Admissions Programs: Forward from Bakke (1979) 6 Hastings Const.L.Q. 719; Note, The Supreme Court, 1977 Term, Constitutional Law (1978) 92 Harv.L.Rev. 57, 131.)

a) The Powell Opinion. Because Justice Powell represented the “swing” or pivotal vote in Bakke, we focus first on his views. He concluded that although any race conscious classification must serve a compelling governmental interest (see pp. 299, 305 [57 L.Ed.2d at pp. 776-777, 780-781]), nevertheless “the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin” (p. 320 [57 L.Ed.2d at p. 790]). He expressly cited with approval the admissions procedures used at Harvard College, whereby diversity among its students is sought without using racial quotas or otherwise precluding qualified applicants from competing for all available seats in the entering class. “Diversity” under the Harvard program includes a variety of factors, such as geographic origin, unusual life experience, special talent and educational qualifications, as well as disadvantaged economic, racial or ethnic background.

We find significance in Justice Powell’s description and evaluation of the Harvard program: “In such an admissions program, race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with' that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the ‘mix’ both of the student body and the applicants for the incoming class.

“This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.” (Pp. 317-318 [57 L.Ed.2d at pp. 788-789].)

In our view the admissions procedures used by the University to select its 1975 entering class at King Hall does not vary in any significant way from the Harvard program. Minority racial or ethnic origin was one of several competing factors used by the University to reach its ultimate decision whether or not to admit a particular applicant. Each application, as contemplated by the program, was individually examined and evaluated in the light of the various positive and negative admission factors. As Justice Powell pointedly observed, the primary and obvious defect in the quota system in Bakke was that it precluded individualized consideration of every applicant without regard to race. (Pp. 317-318, and fn. 52 [57 L.Ed.2d at pp. 788-789].) That fatal flaw does not appear in the admissions procedure before us. This is not a quota case. Thus, we conclude that the race attentive admissions procedure used by the University in 1975 would have passed federal constitutional muster under the standards prescribed by Justice Powell in Bakke.

b) The Brennan Opinion. The Brennan opinion, representing the views of four justices, would have upheld the Davis qilota system invalidated by the majority in Bakke. It may fairly be concluded that a race conscious law school admissions program that did not involve a quota, a fortiori, would be sustained by those holding the Brennan view. Justice Brennan also expressed approval of the Harvard admissions program, albeit on a different ground than the diversity benefit emphasized by Justice Powell. Justice Brennan “agree[d] with Mr. Justice Powell that a plan like the ‘Harvard’ plan ... is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.” (P. 326, fn. 1 [57 L.Ed.2d at p. 793]; see also pp. 378-379 [57 L.Ed.2d at pp. 826-827] [expressing the view that the Harvard plan is “no more or less constitutionally acceptable” than the Davis quota system ruled invalid by the majority].) Justice Brennan expands the foregoing requirement of a past discriminatory effect and would hold that even a racial quota system such as involved in Bakke was constitutional if its purpose “is to remove the disparate racial impact [the University’s] actions might otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large.” (P. 369 [57 L.Ed.2d at pp. 820-821].)

Because the trial of the present case preceded the filing of federal Bakke, the parties, of course, neither framed nor litigated the issue —whether the University’s admissions program was “necessitated by the lingering effects of past discrimination.” Nevertheless, in our view, the record before us does amply establish “past discrimination” within the contemplation of the Brennan opinion and standards.

First, the evidence supports a finding that the use of a race conscious admissions program was needed to prevent a disproportionate underrepresentation of minorities in King Hall. The testimony of Professor Barrett, former dean of the law school, stressed that if admission selection was based solely upon “numbers” (i.e., GPA and LSAT scores), “the greatest bulk of the minority applicants” would be excluded. No contrary testimony was introduced at trial.

Second, past societal discrimination against ethnic minorities is an unfortunate, but demonstrable, historical fact acknowledged in both the Powell (p. 296, fn. 36 [57 L.Ed.2d at p. 816].) and Brennan (pp. 369-373 [57 L.Ed.2d at pp. 820-823]) opinions in Bakke, as well as by a majority of this court in Price v. Civil Service Com. (1980) 26 Cal.3d 257, 286 [161 Cal.Rptr. 475, 604 P.2d 1365] (referring to “the pervasive discrimination long endured by minorities in our society”).

Finally, the existence of a nexus between past discrimination and present disproportionate academic and professional underrepresentation was fully acknowledged in the Brennan opinion itself, wherein it was readily assumed that societal discrimination against minorities has impaired their access to equal educational opportunity. As the opinion states, “Davis clearly could conclude that the serious and persistent underrepresentation of minorities in medicine ... is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education and in society generally, as well as in the medical profession. [Pp. 370-371 (57 L.Ed.2d at pp. 821-822).] ... [1Í] Judicial decrees recognizing discrimination in public education in California testify to the fact of widespread discrimination suffered by California-born minority applicants; . .. [T]he conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to Brown I [Brown v. Board of Education (1954) 347 U.S. 483 (98 L.Ed. 873, 74 S.Ct. 686, 38 A.L.R.2d 1180)], or the equally debilitating pervasive private discrimination fostered by our long history of official discrimination [citation], and yet come to the starting line with an education equal to whites.” (P. 372, [57 L.Ed.2d, pp. 822-823], italics added, fns. omitted.)

Although the foregoing observations were expressed within the context of a discussion of minority admissions to medical school, it seems fair to conclude that the justices joining in the Brennan opinion would reach an identical conclusion with respect to the effect of past societal discrimination upon minority applicants to King Hall. While Justice Powell regarded as too speculative the provability of any connection between past discrimination and minority failures to gain admission (see p. 296, fn. 36 [57 L.Ed.2d, p. 775]), no such misgivings are expressed in the Brennan opinion.

Accordingly, we conclude that, whether based on the Powell reasoning of assuring an academically beneficial diversity among the student body, or on the Brennan rationale of mitigating the effects of historical discrimination, it is abundantly clear that the University’s 1975 admissions program would, on its face, meet federal constitutional standards as declared by a majority of the justices of the high court.

We readily acknowledge, of course, that a facially valid procedure may in its actual application produce a constitutionally discriminatory result. Indeed, Justice Powell in Bakke fully and fairly both raised the possibility and anticipated the answer, noting: “It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated—but no less effective—means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner’s preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element—to be weighed fairly against other elements—in the selection process.... And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. [Citations.]” (Pp. 318-319 [57 L.Ed.2d, p. 789], italics added; but see pp. 378-379 [57 L.Ed.2d, pp. 826-827] [opn. of Brennan, J.].) Again, we emphasize Justice Powell’s analysis on the point because the Brennan group presumably would permit even a deliberate and systematic exclusion of white applicants if supported by the requisite showing of past discrimination.

Justice Powell further observed that “So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an applicant can establish that the institution does not adhere to a policy of individual comparisons, or can show that a systematic exclusion of certain groups results, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose.” (Id., at p. 319, fn. 53 [57 L.Ed.2d at p. 789].)

The record before us is barren of any evidence showing that the University was deliberately using the challenged admissions procedure either as a “cover” for a quota system or as a means of systematic exclusion of, or discrimination against, white male applicants such as DeRonde. The trial court made no such finding. Without proof of such an intent, the University’s procedures must be upheld against a claim of unlawful racial discrimination even if accompanied by some evidence of a disproportionate impact. (See Bakke, p. 289, fn. 27 [57 L.Ed.2d, p. 770] [opn. of Powell, J.]; Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 264-266 [50 L.Ed.2d 450, 463-465, 97 S.Ct. 555].)

Moreover, the evidence fails to support a finding of such disproportionate impact. The record does reflect that, between 1971 and 1977, the percentage of minorities in the entering classes at King Hall has been substantial, fluctuating from a low of 22.78 percent in 1971 to a high of 41.6 percent in 1976. From this arithmetic, DeRonde argues that “for six straight years from 1971 to 1976, the percentage of minority students entering classes at Davis Law School averaged 33% of those classes. This was at a time when more highly qualified male Caucasians were applying for admission than in the history of the school .... [1Í] How can there be said to exist no ‘disproportionate’ impact when extremely well-qualified male Caucasian applicants outnumber poorly-qualified minority applicants by over three to one and are admitted to the school in a lesser percentage?” (Italics added.)

As the italicized portion of the argument reveals, the principal difficulty with DeRonde’s statistical analysis is that it is based upon the faulty premise that it is only a high PFYA or GPA which truly “qualifies” an applicant for admission to law school. Yet as Justice Powell carefully explained in Bakke, racial or ethnic origin, as well as other “nonobjective” factors, such as personal talents, work experience or leadership potential, properly may be considered in weighing each applicant’s qualifications. (438 U.S. at pp. 317-320 [57 L.Ed.2d at pp. 788-790]; for a probing analysis of the concept of “merit” within the academic context, see Fallon, To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of Antidiscrimination (1980) 60 B. U. L.Rev. 815, 871-876.)

DeRonde’s statistics may indicate that the University has placed considerable weight upon racial or ethnic factors in determining the composition of its entering law classes. Yet nothing in Bakke prohibits such a practice, so long as individualized personal consideration is given to the varied qualifications of each applicant. Furthermore, the fact remains that male Caucasian applicants to King Hall continue to gain admission in respectable numbers. For example, according to De-Ronde’s own figures, in 1975, the year of DeRonde’s application, 157 white males were offered admission as opposed to 133 minority applicants. We do not know the number of white females who were admitted. These statistics alone, however, would appear to contradict any assertion that the University has adopted or implemented a systematic plan or scheme to exclude male Caucasians.

We conclude that the University’s 1975 admissions procedures did not violate the equal protection clause of the federal Constitution, as authoritatively interpreted by a majority of the United States Supreme Court in its Bakke decision. We turn then to DeRonde’s contention that these procedures violated similar provisions of the California Constitution.

III. California Constitution

DeRonde, relying primarily upon the reasoning of the majority in Bakke v. Regents of University of California (1976) 18 Cal.3d 34 [132 Cal.Rptr. 680, 553 P.2d 1152], urges us to hold that the University’s race conscious admissions program violated the equal protection guarantees of article I, section 7, of the state Constitution. DeRonde correctly observes that, on some prior occasions, a majority of our court has departed from applicable federal precedents in reliance upon state constitutional principles. (E.g., Serrano v. Priest (1976) 18 Cal.3d 728, 764 [135 Cal.Rptr. 345, 557 P.2d 929]; People v. Brisendine (1975) 13 Cal.3d 528, 545 [119 Cal.Rptr. 315, 531 P.2d 1099].) As Serrano holds, the equal protection guarantees contained in article I, section 7, subdivision (a), of the California Constitution afford protections different from, and independent of, those extended by the Fourteenth Amendment. Yet in the specific context of minority advancement programs, we have stated our position quite recently and clearly, albeit by a divided court. In this area the court’s majority has explicitly concluded that the state Constitution imposes no greater restrictions than similar guarantees provided by the federal charter. (Price v. Civil Service Com., supra, 26 Cal.3d 257, 284-285.) The principles of Price are clearly controlling here.

In Price, we upheld an affirmative action hiring program ordered by a county civil service commission as a means of alleviating an underrepresentation of minority employees attributable to past discriminatory employment practices by the hiring entity. We first observed that the county’s hiring program was consistent with federal constitutional guarantees as declared by the United States Supreme Court in Bakke and in Steelworkers v. Weber (1979) 443 U.S. 193 [61 L.Ed.2d 480, 99 S.Ct. 2721]. We then examined and rejected the argument that the program was barred under state equal protection principles, explaining: “Although the state equal protection guarantee embodied in article I, section 7, subdivision (a) of the California Constitution does provide safeguards separate and distinct from those afforded by the Fourteenth Amendment (see Cal. Const., art. I, § 24; see, e.g., Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 469 [156 Cal.Rptr. 14, 595 P.2d 592]), the district attorney points to no authority which suggests that the California equal protection clause should be interpreted to place greater restrictions on bona fide affirmative action programs than are imposed by the Fourteenth Amendment. To the contrary, our past decisions construing article I, section 7, subdivision (a) reflect this court’s recognition of the importance of interpreting the provision in light of the realities of the continuing problems faced by minorities today. (See Crawford v. Board of Education (1976) 17 Cal.3d 280, 301-302 [130 Cal.Rptr. 724, 551 P.2d 28].) Viewed from this perspective, we conclude that the state equal protection clause erects no barrier to a municipality’s adoption of the kind of affirmative action plan authorized by rule 7.10.” (26 Cal.3d at pp. 284-285.)

Having held in Price, wherein an express quota was applied, that the state Constitution places no greater restrictions upon affirmative action programs encouraging increased minority representation than are imposed by the federal Constitution, a fortiori, under principles of stare decisis, we impose no state constitutional bar where the program involves no fixed quota but only consideration of race as one among several other qualifying factors. Although the University’s admissions program at issue here is presented within the context of educational opportunity rather than employment hiring, the Price analysis is equally applicable.

In conclusion, both for practical and policy reasons, we do not lightly disregard pertinent decisions of the United States Supreme Court resolving issues of nationwide interest and importance. Uniform standards in the critical area of educational opportunity appear desirable. The high court’s Bakke decision, although based on differing rationales, gives clear guidance for our decision to the extent that it is controlled by the equal protection requirements of the United States Constitution. We ourselves, by majority vote very recently in Price, concluded that even utilization of a fixed quota did not offend the California Constitution.

We have a traditional and instinctive reluctance to intrude unnecessarily into the administrative affairs of the University of California and do so only under clear constitutional or statutory mandate. A university requires a measure of “elbow room” within which to perform its functions. In its wisdom the appropriate administration-faculty-student admissions committee in full cooperation with the regents has proceeded upon a path which it believes will best achieve fairness and balance in the admission to the University’s professional schools. It has done so for legally acceptable, educational purposes. The King Hall admissions program was conceived in good faith and, as demonstrated by the record before us, has thus far been implemented within constitutional boundaries.

The judgment is reversed to the extent that it (1) declares the University’s admissions program is discriminatory and a violation of equal protection of the laws, (2) enjoins the University from any consideration of race, color or ethnic origin in the admissions process at King Hall, and (3) awards costs of suit to DeRonde. In all other respects, the judgment is affirmed.

Bird, C. J., Tobriner, J., and Rattigan, J.,^* concurred.

* Assigned by the Chairperson of the Judicial Council.