dissenting:
I respectfully dissent. In my view, the record demonstrates an injury to DiLeo that is likely to be redressed by a favorable decision on his behalf. Regents of the University of California v. Bakke, _U.S. _, 98 S.Ct. 2733, 2743-44 (n. 14), _L.Ed.2d _(1978) (Powell, J.); Worth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
Guided by Bakke, which admittedly reflects diverse and divergent views of the Justices of the Supreme Court of the United States and provides definitive guidelines in only the most ephermeral sense, I would hold that the University of Colorado School of Law Special Academic Assistance Program (S.A.A.P.) is unconstitutional.
I.
Standing
The trial court ruling which we are called upon to review assumed (1) DiLeo was denied admission because his group was not designated, and (2) had his group been designated, he would have been admitted as a student.
The trial court did not rule upon the constitutionality of the S.A.A.P. on the theory that even if the program were unconstitutional, DiLeo lacked standing to challenge the program because he was not qualified for admission under the general admission standards.
As the majority opinion points out, this case differs from the Bakke fact situation in that Bakke would have been admitted but for the special admissions program at the University of California at Davis Medical School. Here, DiLeo claims that he was entitled to be considered for admission under the S.A.A.P. Under Law School Rule 106-2(c)(ii), students are admitted to the S.A.A.P. who are members of identifiable groups (1) which are seriously underrepresented in the legal profession and (2) which have not had adequate educational and cultural opportunities available to them. In both 1973 and 1974, the years when DiLeo applied for admission under S.A.A.P., 29 places in the law class of 175 were allocated in advance to the program. Only those who were Mexican-Americans, Black-Americans, and American Indians were considered for those places in 1973. On August 1, 1974, Puerto Rican-Americans were added, but Asian-Americans and Italian-Americans were declared ineligible.
DiLeo asserts that he comes from a background which is characterized by indicia of deprivation as severe as that faced by the designated minorities. Specifically, he has established that he grew up in New York’s “Little Italy,” a slum inflicted with crime, drugs and violence; that he was raised by uneducated, working class parents; and that, through his secondary education, he attended slum schools beset by ignorance and indifference. As such, he claims that he must surmount difficulties as great as those faced by those minorities given preference.
*223DiLeo is not asserting that it is unconstitutional for the Law School to have a S.A.A.P. to aid disadvantaged students, but claims he is disadvantaged and that his background qualifies him for consideration. As such, he asserts that he would be eligible for admission under the S.A.A.P. if non-racial criteria were applied, and that he has been denied meaningful participation in that program because of his race. The majority points out, at note 2, that:
“In 1973, of 59 applicants who were offered admission through the S.A.A.P., 50 had higher prediction indexes than DiLeo and 24 applicants who were members of eligible groups and had higher prediction indexes than DiLeo were denied admission.”
From this, the majority draws the conclusion that, even if DiLeo were considered in the special admissions program, he would not have been accepted by the Law School.
The majority’s reference to this finding indicates that it misapprehends the import of Bakke. Nine persons who were participants in a program, from which DiLeo was excluded on the basis of his race, were less qualified and were not only considered, but also were offered admission to the Law School. Thus, it is unnecessary that DiLeo claim that he would have been admitted under the general admissions program and in the absence of the University of Colorado’s S.A.A.P. It is sufficient for purposes of standing that DiLeo establish that he was not considered as a disadvantaged student under the S.A.A.P. because he was not a member of a designated minority.
Moreover, I am persuaded that once it was shown that DiLeo was excluded from the S.A.A.P. because of his race the burden of proof shifted to the University of Colorado to demonstrate that DiLeo would not have been accepted if he had been considered for admission under the S.A.A.P. In short, the University would have to demonstrate that DiLeo would not have been considered for admission under the S.A.A.P. even if that program did not use race as a decisive factor. Bakke v. Board of Regents, 18 Cal.3d 34, 553 P.2d 1152, 1172 (1976); Franks v. Bowman Transportation Co., 424 U.S. 747, 773 (n. 32), 96 S.Ct. 1251, 47 L.Ed.2d 444 (1975).
II.
Suspect Classification
The issue common to both Bakke and this case is whether a racial classification which is intended to assist minorities, but which has the effect of depriving those not so classified of benefits they would enjoy but for their race, invokes the “compelling state interest” or only an “important governmental objectives” test. Only the Supreme Court of the United States can pronounce the final words on that question. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). A majority of the Justices of that Court have yet to pronounce that word. See Bakke, *224supra at 2756-60, 64 (Powell, J.); id. at 2783-84 (Brennan, White, Marshall, and Blackmun, J.J.) (concurring in part and dissenting in part). However, at the present time, in order to meet the requirements set forth by Justice Powell, we must assume that the University must demonstrate a compelling state interest in maintaining its program and that no less restrictive method will effect its purpose.
The University cannot meet that burden in this case. The S.A.A.P. administered by the Law School is essentially and fatally similar to that established by the Medical School at Davis. The crucial fact is that both Bakke and DiLeo were denied meaningful participation in at least some major facet of the admissions program solely on the basis of their race.
Once it has been demonstrated that the S.A.A.P., as administered, created a per se racial classification, Bakke requires that the strict scrutiny test be applied. If the program affects a fundamental interest or employs a suspect classification, strict scrutiny is invoked, and the program can be upheld only if it is necessary to promote a compelling state interest, and that interest cannot be promoted by less onerous means. E.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).
Race is a key to admission under S.A.A.P. because only members of specially selected racial groups are entitled to admission at the lower standards. Race is conclusive for purposes of excluding certain applicants, such as DiLeo, from participation. While students are not being admitted solely on the basis of race, it is clear that some potential students, including DiLeo, have been excluded from participation in the S.A.A.P. solely on that basis. The fact, relied upon by the majority, that S.A.A.P. applicants found to belong to the appropriate racial groups must compete among themselves for available positions and that several objective factors are considered in the admission process is irrelevant to DiLeo’s constitutional challenge.
DiLeo does not challenge the establishment of a program to give preference to disadvantaged individuals. Nor does he challenge the University’s reliance on its belief that the fact that an individual is a member of an identifiable, disadvantaged group makes it more probable that a member of that group is disadvantaged. Nothing in the Bakke opinion prevents the Law School from making that judgment. Justice Powell makes clear, however, that the University must define those groups it designates as disadvantaged in racially neutral terms. That is, when the Law School designates a minority group, the members of which it wishes to prefer, it may not designate that group by reference to its racial characteristics.
For the reasons stated herein, DiLeo, in my opinion, has standing to challenge the S.A.A.P. S.A.A.P. creates a per se racial classification *225which is prohibited and must fail because of the limitations imposed by Bakke v. Regents of the University of California, supra.