Amicus Curiae Brief — DeFunis v. Odegaard

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Supreme Court of the United] Sts 21 1973

Ocrosger Tram, 1973 MICHAEL RODAX, JR_CLE

No. 73-235

>

Marco Dz Founis, et al.,

Appellants-Petitioners,

—_—VVe—

Cartes ODEGAARD, PRESIDENT OF THE

University or WasHINGTON, et al.,

Appellees-Respondents.

——————EEeEeEeEeEeEeEeE=EeEyCycyeEeEe=E===qEqEeE=SE=—=E=E=EeEI("“_l)™"CEOSOSESEee——————

BRIEF OF

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH

AS AMICUS CURIAE IN SUPPORT OF

JURISDICTIONAL STATEMENT

OR IN THE ALTERNATIVE

PETITION FOR CERTIORARI

+ALExANDER M, BICKEL

Attorney. for Amicus Curiae

261 St. Ronan Street

New Haven, Conn. 06511

Of Counsel:

Larry M. Lavinsky

Proskauer Rose Goetz & Mendelsohn

300 Park Avenue

New York, N. Y. 10022

Arnotp Forster

Anti-Defamation League of B’nai B’rith

315 Lexington Avenue

New York, N. Y. 10016

August 17, 1973

Statement

Reasons Way tue Question Is SupsTanTiaL on 1 THE

Avreasative Way tus Warr Snoviw Be Gaawrep

lL The decision below misreads and misapplies,

if it does not squarely conflict with, prior deci-

sions of this Court and of other courts con-

cerning the use of racial classifications

IL The decision below distorts the remedial de-

vice of “affirmative action” which is of in-

creasingly critical importance to the achieve-

ment of social justice and the development of

harmonious race relations under law in our

country. By so distorting the remedy of “af-

firmative action,” the decision below threatens

to destroy its utility

Cases:

Anderson v. Martin, 375 U.S. 399 (1964) 10

Anderson v. San Francisco Unified School District,

357 F. Supp. 248 (N.D. Cal. 1972) 18

B.P.0.E. Lodge No. 2043 of Brunswick v. Ingrahm,

297 A.2d 607 (Sup. Ct. Me. 1972), appeal dismissed,

93 Sup. Ct. 1893 (1973) 19

Brown v. Board of Education, 347 U.S. 483 (1954) .. 3

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert.

denied, 406 U.S. 950 (1972) 9, 16,17

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) 20

Colorado Anti-Discrimination Commission v. Conti-

nental Airlines, Inc., 372 U.S. 714 (1963) 00. 0S 8

Contractors Association of Eastern Pennsylvania v.

Secretary of Labor, 442 F.2d 159 (3d Cir.), cert.

denied, 404 U.S. 584 (1971) 17

Eisenstadt v. Baird, 405 U.S. 438 (1972) 25

Erie Human Relations Commission v. Tullio, 357 F.

Supp. 422 (W.D. Pa. 1973) 20

Freeman v. Morton, Civ. No. 327-71 (U.S. Dist. Ct.,

Dist. of Colum. 1973) 19

Green v. County School Board, 391 U.S. 430 (1968) .. 13

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 15, 19

Hirabayashi v. United States, 320 U.S. 81 (1943)... +25

Hunter v. Erickson, 393 U.S. 385 (1969) .. 10

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) _..

Louisiana v. United States, 380 U.S. 145 (1965) __..

Loving v. Virginia, 388 U.S. 1 (1967)

Mancari v. Morton, Civ. No. 9626 (U.S. Dist. Ct., Dist.

of New Mex., 1973)

McLanghlin v. Florida, 379 U.S. 184 (1964)

McLaurin v. Oklahoma State Regents, 339 U.S. 637

(1950)

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)

NAAC.P. v, Allen, 340 F. Supp. 703 (N.D. Ala. 1972)

National Labor Relations Board v. Mansion House

Center Management Corporation, 473 F.2d 471 (8th

Cir. 1973)

North Carolina State Board of Education v. Swann,

402 U.S. 43 (1971)

BE ES

&

Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 1967) _. 18

Pennsylvania v. O'Neill, 248 F. Supp. 1084 (E.D.

Pa. 1972), modified, 473 F.2d 1029 (3d Cir. 1973)

Peters v. Kiff, 407 U.S. 493 (1972)

Poreelli v. Titus, 302 F. Supp. 726 (D.N.J. 1969), 431

F.2d 1254 (3d Cir. 1970), cert. denied, 402 U.S. 944

20

16

(1971) 9, 17, 18, 19

Shelley v. Kraemer, 334 U.S. 1 (1948)

Southern Illinois Builders Association v. Ogilvie, 471

F.2d 680 (7th Cir. 1972)

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969)

PAGE

Swain v. Alabama, 380 U.S. 202 (1965) 14

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) 9, 13, 21

Sweatt v. Painter, 339 U.S. 629 (1950) 3,11

Tancil v. Woolls, 379 US. 19 (1964) 10

Terrace v. Thompson, 263 U.S. 197 (1923) 00.5

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205

(1972) 16

United St: —_ v. Georgia Power Co., 474 F.2d 906 (5th

Cir. 1973) 20

United States v. Montgomery County Board of Educa-

tion, 395 U.S. 225 (1969) 13

Constitutional Provision:

United States Constitution

Fourteenth Amendment 2

Statutes:

28 U.S.C. §1257(2) 2

28 U.S.C. §1257(3)

28 U.S.C. $2103

Title VII of the Civil Rights Act of 1964

Other Authorities:

Article by President John H. Bunzel of California

State University at San Jose, The Politics of Quotas,

Cuanaz, October, 1972, p. 25 20

Graglia, Special Admission of the “Culturally De-

prived” to Law School, 119 U. or Pa. L. Rev. 351

(1970) 12

74 Literary Digest 28, July 8, 1922 24

McPherson, The Black Law Student: A Problem of

Fidelities, Artawtic, April 1970, p. 88 12

United States Bureau of the Census, Census of Popu-

lation: 1970, General Population Characteristics,

Washington, Final Report PC(1)-B49, Table 18 _. 14

, Oregon, Final Report PC(1)-B39, Table 18 14

, Idaho, Final Report PC(1)-B14, Table 18... 14

, Montana, Final Report PC(1)-B28, Table 18 14

Yoemans, Assorr Lawrence Lowe. 209 (1948) —........

In THE

Supreme Court of the United States

COcroser Term, 1973

No. 73-235

———_——

Marco De Fun, et al.,

Appellants-Petitioners,

Vi

Cuarntes OpecaarD, PResENT OF THE

University or Wasuincron, et al.,

Appellees-Respondents.

ig

BRIEF OF

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH

AS AMICUS CURIAE IN SUPPORT OF

JURISDICTIONAL STATEMENT

OR IN THE ALTERNATIVE

PETITION FOR CERTIORARI

Marco De Funis, et al. appeal from, or in the alternative

respectfully pray that a writ of certiorari issue to review,

the judgment and opinion of the Supreme Court of the

State of Washington entered on March 8, 1973, rehearing

denied, May 16, 1973.

Opinion Below

The opinion of the Supreme Court of Washington is re-

ported in 82 Wn.2d 11, 507 P.2d 1169, and is printed in

Appendix A to the Jurisdictional Statement or in the Alter-.

tive Petition for Certiorari.

Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257(2), or in the alternative under 28 U.S.C. §$$1257 (3)

and 2103.

Consent of the Parties

Both Marco De Funis, et al., and Charles Odegaard et al.,

by their attorneys, have given their consent to the filing of

this brief, and their letters of consent are on file with the

Clerk of this Court.

Question Presented

Whether consistently with the Fourteenth Amendment

to the United States Constitution, a State University Law

School may extend a preference for admission solely on

the basis of race to a certain number of persons who

are concededly less qualified than applicants of other races.

Constitutional Provision

The Fourteenth Amendment to the United States Con-

stitution provides in pertinent part: “. .. nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

Interest of the Amicus

B’nai B’rith, founded in 1843, is the oldest civie service

organization of American Jews. The Anti-Defamation

League was organized in 1913 as a section of the parent

organization to advance good will and mutual understand-

ing among Americans of all creeds and races, and to com-

bat racial and religious prejudice in the United States.

Among its many other activities directed to these ends,

the Anti-Defamation League has in the past filed briefs as

amicus in this Court urging the unconstitutionality or il-

legality of various racially discriminatory laws and prac-

tices in such cases as, ¢.g., Shelley v. Kraemer, 334 U.S. 1

(1948) ; Sweatt v. Painter, 339 U.S. 629 (1950); Brown v.

Board of Education, 347 U.S. 483 (1954); Colorado Anti-’

Discrimination Commission v. Continental Airlines, Inc.,

372 U.S. 714 (1963); Jones v. Alfred H. Mayer Co., 392

U.S. 409 (1968) ; and Sullivan v. Little Hunting Park, Ince.,

396 U.S. 229 (1969).

Statement

Petitioner Marco De Funis was denied admission to the

Washington University Law School class of 1974, commenc-

ing in September 1971, and he, his wife and parents there-

upon brought suit in the Superior Court of the State of

Washington seeking an order that he be admitted on the

ground that the procedures by which he was excluded were

discriminatory. Following trial, the Superior Court issued

such an order, but the Supreme Court of Washington re-

versed. On June 5, 1973, Mr. Justice Douglas stayed exe-

cution and enforcement of the judgment of the Supreme

4

Court of Washington pending the disposition of an appeal

or petition for a writ of certiorari in this Court.

Enrollment in the University of Washington Law School

is limited overall to 445 students. The entering class is

limited from time to time to the residual number remaining

after second and third-year students who continue in good

standing are counted. In 1971, the number of places open

in the first-year class was approximately 145. Applications

had risen to about 1,600. (St. 33-35°)

The task of filling these 145 places was delegated to an

admissions committee consisting of five faculty members

and two students. (St. 330) The Law School requires that

completed applications include copies of transcripts from

all schools and colleges previously attended, letters of rec-

ommendation, a statement by the applicant himself, and the

applicant’s score on the law school admissions test, which

is nationally administered. These data and documents form

the basis on which the committee acts. (St. 338, 22) By

means of a formula combining the law school admissions

test score and the applicant’s junior and senior year col-

lege grade averages, a law school predicted first year aver-

age is established. (St. 360, 56, 181, 357)

With very few exceptions, and almost always with no

further consideration, the admissions committee in 1971

admitted applicants whose predicted first year average was

77 or above. The files of applicants whose predicted first

year average was below 74.5 and who were not black Amer-

icans, Chicano Americans, native American Indians or

Philippine Americans were examined by the chairman of

* “St.” refers to the Statement of Facts, which in this record

contains the transcript of testimony.

the admissions committee alone. In the overwhelming ma-

jority of cases, these applications were rejected by the

chairman without further recourse. Exceptions were made

by him only for returning veterans and perhaps in one or

two other cases, but no more. That left a residual category

of applications, which was divided into two groups: those

showing predicted first-year averages between 76.99 and

74.5 for applicants who were not Hlack Americans, Chicano

Americans, native American Indians or Philippine Amer-

icans—the group in which De Funis was included, with a

score of 76.23; and those showing that the applicant was a

black American, Chicano American, native American In-

dian or Philippine American with a predicted first year

average below 76.99 a3 well as below 74.5. Files in the first

group were assigned to committee members at random for

examination and report back to the full committee, where

they were eventually acted upon. (St. 340-41, 351, 342, 344)

The second group, although forming part of the same re-

‘sidual category, was treated distinctly and separately.

The chairman of the admissions committee testified:

“The residual category, and let me segregate—segregate

is the wrong word, but minorities were put aside for sepa-

rate consideration.” (St. 344) Files of black applicants

were sent to a subcommittee consisting of a law student,

himself black, and a faculty member for review and report

back to the full committee. Files of Chicano Americans,

native American Indians, and Philippine Americans were

reviewed by an associate dean for later presentation to

the committee. (St. 352) Files in this separately treated

group of black Americans, Chicano Americans, native

American Indians and Philippine Americans were com-

pared only with each other and not with the rest of the

applications passed upon by the committee or by its chair-

man individually. (St. 351, 353, 399, 402, 409)

By this method, the trial court found, 44 black Americans,

Chicano Americans, native American Indians and Philip-

pine Americans (called “minority students”) were offered

admission to the law school, the vast majority of whom had

lower predicted first-year averages than that of De Funis,

and some of whom, had they been white, would have had

their applications summarily denied, presumably by exer-

cise of the function delegated to the chairman of the ad-

missions committee. (Findings, XXI, XXIII, Appendix C

to Jurisdictional Statement or in the Alternative Petition

for Certiorari, pp. 65-66.) What is more important, the

method resulted beyond question in the admission, in the

aggregate, of students acknowledged to be less qualified

than others who, like De Funis, were rejected.

The dean of the Law School testified that “we do not

want to go to the point where we are taking people who

are unqualified in an absolute sense, and that is that they

have no reasonable probable likelihood of having a chance

of succeeding in the study of law with such academic sup-

portive assistance that we can give them.” (St. 420) But he

testified candidly that “I would be misleading you, I think,

if I suggested” that minority students with low credentials

who are admitted are “necessarily as likely to succeed in

the law school curriculum as certain of the majority stu-

dents who are not admitted.” (St. 418) And defining the

term “qualified” as indicating “the likelihood or probability

[that] the student has the potential for successful study

of law according to our curriculum,” the dean added: “On

that basis, we do take, in my opinion, some minority stu-

_, dents who at least, viewed as a group, have a less such

7

likelihood than the majority student group taken as a

whole.” (St. 423) There followed this colloquy, which

stands uncontradicted, and indeed supported, by the record

as a whole:

Q. Of those who have made application to go to the

law school, I am saying you are not taking the best

qualified? A. In total?

Q. In total. A. In using that definition, yes. (St.

423-24)

The number of applicants admitted in this special, sepa-

rate fashion was apparently not set with precision. But

there was, if not a precise number, then a zone or an order

of magnitude. The chairman of the admissions committee

testified that there was no fixed quota. (St. 353) So did the

dean of the Law School, but he said repeatedly that the

policy of the School was “to achieve a reasonable repre-

sentation in the classes of persons from certain minority

racial and ethnic groups. ...” (St. 416; and see St. 426)

As indicated above, the policy was not to take applicants

who were unqualified in the absolute sense that they had

no reasonable chance of succeeding, even with supportive

assistance. But, said the dean: “We want a reasonable

representation. We will go down to reach it if we can, ...”

(St. 420) :

The justification for this policy, as the dean stated it, was

that the minority racial and ethnic groups whom the Law

School now sought to provide with “a reasonable repre-

sentation” were those which had been “historically sup-

pressed and excluded from participation in what might be

thought of, I suppose, the main stream of our society, and

certainly in participation in the legal arena.” (St. 416) The

stated assumption underlying the policy was that these

groups had been and were now culturally and economically

disadvantaged, and that the usual method of evaluating

applicants was consequently less than usually accurate with

respect to them. (St. 416-17) But there is no pretense in

this record that the assumption of cultural and economic

disadvantage as applied to any particular individual appli-

cant rested on anything but his race, or that the contrary

assumption, namely, that an applicant had had the normal

cultural and economic advantages, in turn rested on any-

taing but the applicant’s race. Nor is there any indication

that black American, Chicano American, native American

Indian and Philippine American applicants were evalu-

ated by any special test specially suitable to them. They

were evaluated separately and more leniently, but by the

same test as everyone else.

The dean of the Law School at one point in his testi-

mony referred to the term, “cultural disadvantage,” as

a “sort of cloak of language,” (St. 417), and when asked

to define the difference between a minority group and a

culturally disadvantaged person or group, he replied that

“the semantics of this whole thing are something of a

problem.” (St. 424-25) There is in this record a fully can-

did recognition that the Law School admissions policy

singled out for separate treatment applications of certain

persons solely on the basis of race, and judged them more

indulgently than other applicants. There is no evidence

whatever that the School evolved and applied any special

test, specially suitable to culturally and economically de-

prived applicants and capable of assessing their qualifica-

tions as rigorously as those of other applicants were as-

sessed. (EF.g., St. 399)

Reversing the trial court, which had ordered that De

Funis be admitted to the class of 1974, the Supreme Court

of Washington held that racial classifications are not per se

unconstitutional, if not invidious and stigmatizing; that

the Law School’s admissions policy does not constitute

invidious discrimination any more than did the color-

conscious policies mandated by Swann vy. Charlotte-Meck-

lenburg Board of Education, 402 U.S. 1 (1971), or by cer-

tain decisions of lower federal courts such as Porcelli v.

Titus, 431 F.2d 1254 (3d Cir. 1970), cert. denied, 402 U.S.

944 (1971); and Carter v. Gallagher, 452 F.2d 315 (8th Cir.

1971), cert. denied, 406 U.S. 950 (1972); that nevertheless

a compelling state interest must be shown in order to

justify classifications based on race; and that three ade-

quately compelling state interests had been shown in this

case, namely, the elimination of “racial imbalance within

public legal education,” 507 P.2d at 1182, the production

of “a racially balenced student body at the- law school,”

507 P.2d at 1184, and the alleviation of a nation-wide

“shortage of minority attorneys,” 507 P.2d at 1184. In its

statement of the case, the court noted that the Law School

admissions policy proceeds from the assumption that cer-

tain racial groups have been subject to segregation and

discrimination in the past and have historically been sup-

pressed. But the court did not seem to accept this assump-

tion as in itself constituting a compelling state interest.

The court also held that there was no denial of equal

protection because only certain racial groups were singled

out by the Law School admissions policy, since in light of

the purpose of that policy the racial classification did not

need to include all racial minority groups. The court held

as well that the Law School’s admissions procedure did not

10

constitute arbitrary anc capricious administrative action,

since definite numerical standards were used, and modified

only where racial or other considerations seemed so to

require.

Justice Wright, while joining in the opinion of the court,

filed a short concurring opinion, in which Justices Finley

and Stafford joined, while also joining in the opinion of

the court. Chief Justice Hale filed a long dissenting opin-

ion, in which Justice Hunter joined, while also filing a short

dissent of his own.

REASONS WHY THE QUESTION IS SUBSTANTIAL

OR IN THE ALTERNATIVE

WHY THE WRIT SHOULD BE GRANTED

1.

The decision below misreads and misapplies, if it

does not squarely conflict with, prior decisions of this

Court and of other courts concerning the use of racial

classifications.

It is, of course, firmly settled that any racial classifica-

tion emanating from “official state sources,” Loving v.

Virginia, 388 U.S. 1, 10 (1967), carries the heaviest pos-

sible presumption of unconstitutionality. The kind or de-

gree of deprivation resulting from a racial classification

is immaterial; nor does it matter that the consequences

of a classification fall evenly on more than one race, or on

all races. Loving v. Virginia, supra; Hunter v. Erickson,

393 U.S. 385 (1969); Tancil v. Woolls, 379 U.S. 19 (1964);

Anderson v. Martin, 375 U.S. 399 (1964). Therefore, the

Supreme Court of Washington’s remark that it is “ques-

tionable whether defendants deprived plaintiff of a legal

11

education by denying him admission,” 507 P.2d at 1181,

because De Funis had been accepted at other law schools,

namely, two private and two out-of-state public ones, is

entirely irrelevant. It was just this consideration that the

Court rejected in Missouri ex rel. Gaines v. Canada, 305

U.S. 337, 349-50 (1938) ; and see Sweatt v. Painter, 339 U.S.

629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S.

637 (1950).

Equally irrelevant is the Supreme Court of Washington’s

subjective impression that the Law School’s minority ad-

missions policy is not invidious or stigmatizing, 507 P.2d

at 1179. The constitutionality of racial classifications does

not turn on whether a legislative or administrative body,

or the highest court of a state, or even this Court, subjec-

tively regards them as invidious and stigmatizing or not.

Constitutionality turns on whether classifications work any

deprivation, and even if not, on whether they are justi-

fied by a compelling interest, by “some overriding statutory

purpose,” McLaughlin v. Florida, 379 U.S. 184, 192 (1964).

“Without such justification the racial classification . . . is

reduced to an invidious discrimination forbidden by the

Equal Protection Clause.” McLaughlin v. Florida, supra,

379 U.S. at 192-93. If supported by a compelling state

interest a classification may be deemed to be not invidious,

not stigmatizing, and constitutional. If not so supported,

it is invidious and stigmatizing as a matter of law, regard-

less of the intent behind it.

Invidiousness, then, is not a question of fact; it is a

conclusion of law. And courts would find themselves on

very treacherous ground indeed if it were otherwise. Thus

in the instant case, if the decisive question were whether

the classification was in fact not invidious and not stig-

12

matizing, the answer would depend on how the classifica-

tion was received by those to whom it applied. And the

answer, on which this record is silent, would in truth be

more than dubious. One black American who recently grad-

uated from law school has reported:

Traditionally, first-year law students are supposed to

be afraid, or at least awed; but our fear was com-

pounded by the uncommunicated realization that per-

haps we were not authentic law students and the un-

easy suspicion that our classmates knew that we were

not, and, like certain members of the faculty, had

developed paternalistic attitudes toward us. McPher-

son, The Black Law Student: A Problem of Fidelities,

Atiantic, April 1970, p. 88.

Given such potential attitudes, can an openly acknowledged

policy, like that of the University of Washington Law

School, of applying lesser standards to a racially defined

class of applicants be assumed not to be invidious or stig-

matizing? See Graglia, Special Admission of the “Cul-

turally Deprived” to Law School, 119 U. or Pa. L. Rev.

351, 353-59 (1970).

The cases in this Court sanctioning racial classification

on which the court below relied have uniformly shared two

characteristics, both of which are signally absent in the

instant case. First of all, they have sanctioned the use of

racial criteria—indeed, they have decreed it—as a remedy

fashioned to cure unquestioned, specific previous discrimi-

nation based on race. The remedy has followed with pre-

cision a wrong shown with precision in a record. Secondly,

the cases have imposed no new deprivation on anyone else.

In following the wrong, the remedy created no new wrongs ;

it did not impinge upon or displace any rights of others.

13

As the Court said in North Carolina State Board of

Education v. Swann, 402 U.S. 43, 45 (1971): “Just as the

race of students must be considered in determining whether

a constitutional violation has occurred, so also must race

be considered in formulating a remedy.” The accision in

Swann vy. Charlotte-Mecklenburg Bd. of Education, supra,

was based on findings of “a long history of maintaining

two sets of scaools in a single school system deliberately —

operated to carry out a governmental policy to separate

pupils in schools solely on the basis of race.” 402 U.S.

at 5-6. And this Covrt repeatedly emphasized in the course

of its opinion that its focus was on state-imposed segre-

gation. See, e.g., 402 U.S. at 7, 11, 15, 18, 21. The same is

equally true, with equal emphasis, of such earlier cases

as Green v. County School Board, 391 U.S. 430 (1968);

and United States v. Montgomery County Board of Edu-

cation, 395 U.S. 225 (1969), and of cases concerning the

right to vote, e.g., Louisiana v. United States, 380 US.

145 (1965).

Nor was any deprivation of which legal cognizance can

be taken imposed on anyone ir these cases. Children have

no legal right, certainly no constitutional right, to be zoned

into one school rather than another, or to be bused only

for purposes of remaining segregated but not for purposes

of desegregation. Desegregation of faculties, as in United

States v. Montgomery County Board of Education, supra,

was not remotely shown to necessitate the loss of position

on the part of any teacher for racial reasons, and if re-

assignment based on race was involved, it impinged on

no cognizable rights, since a teacher has no more a legal,

let alone a constitutional, right to be assigned to a given

school than does a pupil. Again, adding to the lists voters

14

who had been discriminatorily kept off before obviously

deprives no other voter of any recognizable right.

By contrast, the record in this case contains no evidence

whatever of prior discrimination by the University of

Washington, by its Law School, or by the State of Wash-

ington. The record does show that for 1969-70, the Uni-

versity of Washington Law School reported an enrollment

of 8 black students out of a total of 356. (Defendant's

Exhibit 7) That comes to approximately 2.2 percent, and

compares favorably with the percentge of blacks in the

population of the State of Washington, which is 2.1, and

in the populations of the neighboring states of Oregon,

Idaho and Montana, from which perhaps the University

of Washington may be presumed also to draw students.

See United States Bureau of the Census, Census of Popu-

lation: 1970, General Population Characteristics, Wash-

ington, Final Report PC(1)-B49, Table 18; Oregon, Final

Report PC(1)-B39, Table 18; Idaho, Final Report PC(1)-

B14, Table 18; Montana, Final Report PC(1)-B28, Table

18; ef. Swain v. Alabama, 380 U.S. 202, 208-09 (1965).

On this record, there is also no showing of any sort

that the criteria used for admission, which are summarized

in the predicted first-year average, are not probative of

qualification and operate or have operated so as to dis-

criminate against certain racial or ethnic groups. There

was testimony, see supra, p. 8, entirely impressionistic

in nature, that these criteria might be somewhat unsuited

to culturally and otherwise deprived persons, although not

to any racial group as such. But there was no testimony

indicating any doubt that the criteria reliably predicted

law school performance for everyone, including by and

large the culturally deprived, and there was no thought

15

of abandoning them. There was thus not the slightest hint

that the criteria were discriminatory in the sense of oper-

ating to exclude racial groups for reasons unrelated to

true qualifications. On the contrary, it was conceded that

the result of diluting these criteria was the admiszion of

relatively less qualified applicants. This result is wholly

different from that involved in Griggs v. Duke Power Co.,

401 U.S. 424 (1971) ; indeed the decision in the instant case

is at odds with Griggs. Speaking of Title VII of the Civil

Rights Act of 1964, under which Griggs arose, the Court

said:

“Congress has not commanded that the less qualified

be preferred over the better qualified simply because

of minority origins. Far from disparaging job qualifi-

cations as such, Congress has made such qualifications

the controlling factor, so that race, religion, national-

ity, and sex become irrelevant.” 401 U.S. at 436.

The racial classification adopted by the University of

Washington Law School was no remedy for a definable

wrong within the meaning of this Court’s cases discussed

above. Rather the racial classification was aimed at achiev-

ing certain objectives of social policy, the desirability of

which was in turn derived from an assessment of historic

nation-wide practices and their present consequences. And

the classification did assuredly impinge on the rights of

others. The grievance is not that De Funis or anyone else

has a right to be admitted to a state law school or to

have his application considered in accordance with any

given set of mechanical, numerical or other criteria. The

point, which hardly requires argument, is that De Funis

no less than anyone else has a right to be considered for

admission at a state law school by a method, however dis-

16

cretionary, that does not discriminate against him on the

ground of his race or ethnic origin. The system of racial

classification imposed by the University of Washington

Law School operated to deprive De Funis of this right.*

In this respect, again, this racial classification is critically

unlike any sanctioned in this Court’s cases discussed above.

The conclusion to be drawn frem this Court’s decisions

—with which the decision below necessarily clashes—is

that a compelling state interest sufficient to justify a

racial classification can be shown only if the classification

is undertaken in the course of administering a remedy

for proven prior discrimination, or at least if, while serv-

ing an allowable state purpose, it imposes no deprivation

on anyone. Prior decisions of other courts, cited but in-

adequately analyzed by the Supreme Court of Washington,

are in accord with this conclusion, and equally clash with

the decision of the Supreme Court of Washington.

Thus Carter v. Gallagher, supra, rested on an express

finding of past racial discrimination. The case concerned

employment of firemen, and although a decree ordering

the hiring of minority persons was affirmed, the court

reversed an order of the district court requiring absolute

preference for qualified minority persons in filling first

vacancies. “The absolute preference ordered by the trial

court,” the Court of Appeals held, “would operate as a

present infringement on those non-minority group persons

who are equally or superiorly qualified for the fire fighter’s

positions; and we hesitate to advocate implementation of

* This is the foundation of standing in this case. Cf. Peters vy.

Kiff, 407 U.S. 493 (1972) ; Trafficante v. Metropolitan Life Ins. Co.,

409 U.S. 205 (1972).

a tet

17

one constitutional guarantee by the outright denial of an-

other.” 452 F.2d at 330.

Contractors Association of Eastern Pennsylvania v. Sec-

retary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404

U.S. 584 (1971), another employment case, similarly rested

on a specific finding of prior discriminatory exclusionary

practices. An order establishing goals for minority hiring

was approved, but it plainly provided that there was to

be no discrimination “against any qualified applicant or

employee,” 442 F.2d at 164. Elaborate findings demon-

strated, the court held, that this intention to impose no

deprivation on anyone else could be realistically carried

out. The labor force in question was essentially transitory

and often in short supply in key trades. The findings,

said the court, “disclose that the specific goals may be

met, considering normal employee attrition and anticipated

growth in the industry, without adverse effects on the

existing labor force.” 442 F.2d at 176. “Some minority

tradesmen could be recruited, in other words, without elim-

inating job opportunities for white tradesmen.” 442 F.2d

at 173. That is altogether different from a situation, as

in this case, where 145 or so places are to be filled, and

no more, and the acceptance of any less qualified applicant

necessarily deprives a better qualified one of a place.

Again in Porcelli v. Titus, supra, the suspension of one

method of promoting school administrators and the sub-

stitution of another was upheld in light of striking statis-

tical evidence tending to show that the suspended method

had the effect of discriminating against qualified blacks,

Moreover, the trial court had found that the substituted

method would not exclude anyone from consideration for

18

administrative positions on account of race. It was show

that “despite a desire to provide an avenue for the appoint-

ment of more Negro administrators, the ultimate objective

of the Board was to promote those persons most quali-

fied. ...” 431 F.2d at 1257, n. 4. Compare Anderson v.

San Francisco Unified School District, 357 F.Supp. 248

(N.D. Cal. 1972), where the contrary was shown, and the

court, in consequence, struck down a racial balance plan

as applied also to school administrators. Moreover, to the

extent that race may have been a factor in Porcelli v. Titus,

there was a solid basis in the record for finding that in

the school system of N ewark, New Jersey in 1969, race

was a job-related factor. See Porcelli v. Titus, 302 F.Supp.

726, 732-33 (D.N.J. 1969).

Finally, cases such as Offermann v. Nitkowski, 378 F.2d

22 (2d Cir. 1967), upheld school board policies aimed at

achieving racial balance, which imposed no legally cog-

nizable deprivation on anyone, since they closed off no

one’s access to a school, and no one has a right to be zoned

into a particular school.

2 ee

AA Nt ARE OS EI a BB att

19

II.

The decision below distorts the remedial device of

“affirmative action” which is of increasingly critical im-

portance to the achievement of social justice and the

development of harmonious race relations under law

in our country. By so distorting the remedy of “affirma-

tive action,” the decision below threatens to destroy its

utility.

Equality of opportunity, this Court has suggested, com-

merting approvingly on the purposes of Title VII of the

Civil Rights Act of 1964, must not be provided “only in the

sense of the fabied offer of milk to the stork and the fox.”

Griggs v. Duke Power Co., supra, 401 U.S. at 431. To the

end of avoiding the fabled perversity, legislatures and

courts have evolved the remedy of affirmative action. It

is, and increasingly so, a device of great importance in the

developing law of race relations. It is a flexible remedy,

whose application will vary with circumstances, and it is

race-conscious.*

Whatever the varying circumstances of its application,

however, the limits of the affirmative action remedy must

* There may even be circumstances when it might be permissible

to take race or ethnic origin into account for job- or function-

related reasons, as anti-discrimination legislation may also some-

times do. See, e.g., Porcelli v. Titus, supra, 302 F. Supp. at 732-33;

Freeman v. Morton, Civ. No. 327-71 (U.S. District Court for the

District of Columbia, 1973); Mancari v. Morton, Civ. No. 9626

(U.S. District Court for the District of New Mexico, 1973) ; ef.

B.P.O.E. Lodge No. 2043 of Brunswick v. Ingraham, 297 A.2d 607

(Sup. Ct. Me, 1972), appeal dismissed, 93 Sup. Ct. 1893 (1973).

Cases arising in such circumstances present a wholly different

problem from the affirmative action and preferential treatment

issues discussed in the text above.

be clearly established to be those set by the leading cases

discussed in the previous section of this brief, else the

remedy will end up destroying itself. Without these essen-

tial limits, the remedy of affirmative action will collapse

into the very evil it seeks to cure; and then surely the

impulse to abandon it altogether will be irresistable. In

the instant case, those limits have been plainly trans-

gressed. This is a polar case. The lines of distinction in

this area are often thin and can often be perceived with

assurance only in the light of experience. The instant case,

however, stands at an extremity, well outside a clearly

defined line. It calls for a firm assertion of the limits indi-

cated in prior decisions of this Court and in other leading

eases. Only thus can the future utility of the remedy of

affirmative action be ensured.

The importance and pervasiveness of the problem are

demonstrated by the volume of litigation, and the need for

guidance is shown by the occasional tone of groping un-

certainty that is evident in some of the decisions, although

we have found no case of the extremity of the instant

one.* For illustration of the significance and magnitude

of the problem in the field of higher education, in which

the instant case arises, see the article by President John H.

Bunzel of California State University at San Jose, The

Politics of Quotas, Cuaxce, October, 1972, p. 25.

sor Tino.7in Rddition to cases cited in the previous section of this

brief, United States v. Georgia Power Co., 474 F.2d 906 (5th Cir.

1973) ; National Labor Relations Board v. Mansion House Center

Management Corporation, 473 F.2d 471 (8th Cir. 1973) ; Southern

Illinois Builders Association v. Ogilvie, 471 F.2d 680 (7th Cir.

1972) ; Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); NAACP.

v. 340 F. Supp. 703 (ND. Ala. 1972); Pennsylvania v.

O'Neill, 348 F. Supp. 1084 (E.D. Pa. 1972), modified, 473 F.2d

1029 (3d Cir. 1973) ; Erie Human Relations Commission v. Tullio,

357 F. Supp. 422 (W.D. Pa. 1973).

— ee ee

21

It is proper and may be necessary to follow the specific

proven wrong of prior discrimination—not, as noted,

shown in this case—with an equally specific remedy,

which might include a race ratio as a starting point.

Even so, as the Court pointed out in Swann"y. Charlotte-

Mecklenburg Board of Education, supra, 402 U.S. at

24, the Constitution requires no “particular degree of

racial balance or mixing,” and “that approach would be

disapproved. ...” Again, it may be proper for school

authorities to conclude that “in a pluralistic society each

school should have a prescribed ratio of Negro to white

students reflecting the proportion for the district as a

whole.” Swann v. Charlotte-Mecklenburg Board of Edu-

cation, supra, 402 U.S. at 16. That is not to justify, how-

ever, imposition of such a ratio as a means of excluding

better qualified applicants from admission to a limited

number of places in a state school, rather than as an as-

signment policy. Similarly, even in the absence of proof

of prior discrimination, it is proper and may be necessary

to require an employer or a university to cast a wider

recruiting net than in the past, and to set a goal for minor-

ity recruitment which may act as a spur. But it is one thing

to enforce such a policy on the basis of a finding that there

is an adequate existing pool of qualified minority persons

and that the new recruitment policy will not exclude any

qualified candidates for reasons of race. It is quite another

thing, without any pretense at remedying proven prior dis-

crimination, and even when such past discrimination

can be shown to have existed, to require the employment

or the admission to a school or to any other position

of unqualified or less qualified persons solely on the basis

of their race. When this is done, a cost is paid in loss of

efficiency and in injustice.

Loss of efficiency and produetivity is no help to anyone.

And in a society in which men and women expect to sueceed

by hard work and to better themselves by making them-

selves better. it is no trivial moral wrong to proceed sys-

tematically to defeat this expectation; the more so as for

some groups that do not now benefit from affirmative action

programs prejudice has only recently been overcome, and

the expectation that members of such groups might rise

by merit has just begun to be fully met. In many employ-

ments artificial qualifications have been erected, or wrong

ones, unduly bound to middle-class culture and insufficiently

related to true efficiency, and these ought properly to be

reexamined. But to reject an applicant who meets estab-

lished, realistic and unchanged qualifications in favor of a

less qualified candidate is morally wrong, and in the ag-

gregate, practically disastrous.

The bright line between a beneficent policy of affirmative

action and a policy that is a moral wrong and a practical

disaster is starkly illustrated by the record in the instant

case. With the best will in the world, no doubt, the Uni.

versity of Washington Law School instituted a policy that

amounted to the establishment of a quota, no matter what

“cieak of language” was ingenously used by the Law

School to disguise the fact from itself as well as from

others. The size of the Law School entering class was fixed

to within approximately five places, and there was never

any consideration given to expanding it. (St. 115, 333-34)

Minority and non-minority applicants went, as we have

shown, through separate evaluative procedures. The most

desirable students were chosen from both the minority and

the non-minority groups, but the candidates in one group

were never compared with candidates in the other. The

admissions committee was therefore faced with two groups

of students it wished to accept, and one class in which to

put them, Somehow a decision had to be reached to appor-

tion some part of the fixed number of places in the class

to one group, and the remainder to the other. Undoubtedly

the number of places allotted to minority applicants was

not exactly the same from year to year, and undoubtedly

the decision was made as loosely and implicitly as possible.

But in the absence of any comparison between the two

groups of applicants, the decision had to be made. A

quota is no less a quota because it is undeclared and be-

cause it is subject to annual adjustment, or because it is

called “reasonable representation.”

‘t is true, as noted earlier, that the dean of the Law

School testified that the School would “go down to reach

{a reasonable representation] if we can, but we do not*

want to go to the point where we are taking people who

are unqualified in an absolute sense, and that is that they

have no reasonable probable likelihood of having a chance

of succeeding... .” (St. 420) But a quota is still a quota

even if occasionally there are not enough applicants to fill

it. An entirely separate admissions procedur: based on

race and leading to separate acceptances was used in this

case. In effect, the entering class at the University of

Washington Law School in the fall of 1971 was two classes,

one of minority students and one of majority students,

recognized and chosen as such.

If the School’s purpose had been to restrict the number

of minority students below the number who would be ad-

mitted in the absence of the quota, the practice would be

unconstitutional beyond question. This was not the pur-

pose, obviously. But a quota is a two-edged instrument.

24

It cannot help but be, regardless of the motive of its user.

The aims of the policy in this case, as the Supreme Court

of Washington approved them, were the achievement of a

racially balanced student body, and the alleviation of a

shortage of minority attorneys, which can certainly be read

as meaning the achievement of a racially balanced profes-

sion. Not dissimilar purposes were cited, in equally good

faith, no doubt, by President A. Lawrence Lowell of Har-

vard and others in the 1920’s, when a number of private

universities sought to impose quotas—restrictive ones, to

be sure—on the admission of Jewish students. See 74

Literary Digest 28, July 8, 1922; Yoemans, Assorr Law-

RENCE LoweLL 209-16 (1948).

Of course, the aims were different then. To recruit

is different than to restrict recruitment. But balance

and representation—concepts that abandon the cri-

terion of merit—cannot avoid restriction as well as re-

cruitment, so long as the number of places to be filled is

limited. The purpose of President Lowell of Harvard was

to restrict, and the purpose of the University of Washing-

ton Law School was to recruit, but the point is that re-

striction is inevitably implicit if the number of available

places remains stable and the criterion is not merit but

race or ethnic origin. And the point is that the same policy

objective of producing balance and representation, pursued

in equally good faith, supports the restriction as much as

it supports the recruitment.

It remains only to note a particular irony in the policy

of the University of Washington Law School. The policy

is based, as we have noted more than once, not on any

proven past discrimination, but on an assessment of his-

toric conditions of disadvantage prevailing as to certain

ee

25

groups. Yet despite this premise, the policy is applied to

only four racial groups. The irony of assuming in the

State of Washington that a history of discrimination and

disadvantage is an attribute only of these groups and not

of Asian-Americans will be pointed up by a glance at

Terrace v. Thompson, 263 U.S. 197 (1923), the land-owner-

ship restriction case, which arose in Washington, and by

the realization that Gordon Kiyoshi Hirabayashi was, in

1942, a student at the University of Washington. Hira-

bayashi v. United States, 320 U.S. 81, 84 (1943). The irony

is of constitutional dimension. Given the assumptions and

the purposes of the policy in question, there arises, to say

the least, a serious equal protection problem. See LHisen-

stadt v. Baird, 405 U.S. 438 (1972).

Respectfully submitted,

Avexanver M. BickeL

Attorney for Amicus Curiae

261 St. Ronan Street

New Haven, Conn. 06511

Of Counsel:

Larry M. Lavinsky

Proskauer Rose Goetz & Mendelsohn

300 Park Avenue

New York, N. Y. 10022

ARNOLD Forster

Anti-Defamation League of B’nai B’rith

315 Lexington Avenue

New York, N. Y. 10016