Amicus Curiae Brief — DeFunis v. Odegaard

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SUPREME COURT, U. B.

ee a nl i a

JAR 28 1974

MICHAEL RODAK, JR..CLERK

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1973.

No. 73-235

MARCO DE FUNIS, et al.,

Petitioners,

vs.

CHARLES ODEGAARD, et al.,

Respondents.

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH AMICUS CURIAE.

ALEXANDER M. BICKEL,

261 St. Ronan Street,

New Haven, Connecticut 06511,

Puitip B. KURLAND,

Two First National Plaza,

Chicago, Illinois 60670,

Attorneys for Amicus Curiae.

LaRRY M. LAVINSKY,

300 Park Avenue,

New York, New York 10022,

ARNOLD FORSTER,

315 Lexington Avenue,

New York, New York 10016,

Of Counsel.

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The

University of the State of Washington Is a Violation

Racial Quota Utilized by the Law School of the

of the Equal Protection Clause of the Fourteenth

PI SSS Fee SEs ON ESR oo ck

I.

II.

IV.

Any Racial Classification by a State Is Presump-

tively Invalid Under the Equal Protection Clause

of the Fourteenth Amendment..............

A Racial Classification by a State Is Invalid Under

the Equal Protection Clause Except as a Specific

Remedy for Specific Unconstitutional or [legal

Racial Discrimination .......... ele 8 ik ick

. The “Benign” Intent of the Framers of the Racial

Quota Here Cannot Save It. The Validity of

State Racial Discrimination Is Measured by Effect

a CTE ET ee Py Rae

There Are No “Compelling State Interests” to

Justify the Racial Quotas Used by the Respond-

ents to Determine Admission to the State’s Law

sng OL Ee CLP dig Sere Bh pe Cid

17

19

21

23

TABLE OF CASES AND OTHER AUTHORITIES.

Cases.

Bolling v. Sharpe, 347 U. S. 497 (1954)............. 28

Brown v. Board of Education, 347 U. S. 483 (1954)... .2, 18

Burton v. Wilmington Parking Authority, 365 U. S. 715

CEPR Swale thd imei eed eNGdbehes cea hae ot 23

Carrington v, Rash, 380 U. S. 89 (1965)............ 28

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

cert. denied, 416 U. S. 950 (1972). .......00 ee 14, 22

Colorado Anti-Discrimination Commission v, Continental

Airlines, Inc., 372 U.S. 714 (1963).......c.cc0008 2

Contractors Association of Eastern Pennsylvania v. Sec-

retary of Labor, 442 F, 2d 159 (3d Cir. 1971), cert.

es Pe as OE CTE ork voce caancécecuaae 14

Dunn v. Blumstein, 405 U. S, 330 (1972)........... 28, 29

Graham v. Richardson, 403 U. S. 365 (1971)......... 28

Griggs v. Duke Power Co., 401 U. S. 424 (1971)...11, 21, 23

Harper v. State Board of Elections, 383 U. S. 663 (1966) 28

Hirabayashi v. United States, 320 U. S. 81 (1943). .21, 26, 28

Hunter v. Erickson, 393 U. S. 385 (1969)............ 28

James v. Valtierra, 402 U. S. 137 (1971)............ 26

Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968).... 2

Korematsu v. United States, 323 U. S. 214 (1944)......

ome ethinatinlatd otek’. cpeblacalitn Bi a8 oiiele ate 21, 25, 26, 28

“Kraemer v. Union Free School District, 395 U. S. 621

CE catakeeee hi noel eeehsecas tk cedaauas sé: 28

Loving v. Virginia, 388 U. S. 1 (1967)........ 19-20, 23, 28

McLaughlin v. Florida, 379 U. S. 184 (1964)......... 28

Oyama v. California, 332 U. S. 633 (1948)........... 28

ii

Porcelli v. Titus, 431 F. 2d 1254 (3d Cir. 1970), cert.

denied, 402 U. $. 948 CIGTE} occ cc ccccse 14, 22

Reitman v. Mulkey, 387 U. S. 369 (1967}............ 26

San Antonio Independent School District v. Rodriguez,

BUDE TY CTE. FT PE aS oh 4

Shelley v. Kramer, 334 U. S. 1 (1948)............... 2, 20

Slaughterhousé Cases, 16 Wall. 36 (1870)............ 28

Strauder v. West Virginia, 100 U. S, 303 (1880)........ 28

Sullivan v. Little Hunting Park, Inc., 396 U. S, 229 (1969) 2-3

Swann v. Charlotte-Mecklenburg Bd. of Education, 402

iy SUED can eb hus sade bee Besos 14, 21, 22

Sweatt v. Painter, 339 U. S, 629 (1950)............5. 2,19

Ex Parte Virginia, 100 U. S. 339 (1880)............. 28

Williams v. Rhodes, 393 U. S. 23 (1968)............ 28

Winston-Salem/Forsyth County Board of Education v.

Boat, 406. UB 122) CAGTA) A oso casein svn ceadial 22

Wright v. Council of City of Emporia, 407 U. S. 451, 462

CERTE nnn nssrcceacenceroch ska) 194 QAReA, 23

Constitutional and Statutory Provisions.

Fourteenth Amendment to the Constitution of the United

WOMNND: ev bes eeueeassiereiesarebanceeusan ioe 2

iv

Other Authorities.

S. Baron, The Russian Jew Under Tsars and Soviets 57

SRR SONS pea aha pe gy eon ee RP ee

Graglia, Special Admission of the “Culturally Deprived”

to Law School, 119 U. Pa. L. Rev. 351, 353-59 (1970)

Higher Education for American Democracy, a Report of

the President's Commission on Higher Education 35

GUE RaWWUGs CUUN GH e Tae ree US bss dcebiicees

SPUD CUE des ere oe he ee rele fie the il

G. Kisch, The Jews in Medieval Germany: A Study of

Their Legal and Social Status (2d ed. 1970).........

L. Kochan, ed., The Jews in Soviet Russia Since 1971

1-2, 17, 90, 91, 92, 94, 146 (2d ed. 1972).........

Kramer, What Lowell Said, The American Hebrew 394

Se eee e eda clslok web codec ee Uebel cis

McPherson, The Black Law Student: A Problem of Fideli-

ties, Atlantic 88 (April 1970) ..................

Ce, Diyeme, Bigntty (26 of: 1960) i... kee ees

S. Segal, The New Poland and the Jews 197 (1938).....

Sowell, Black Education, Myths and Tragedies 292

NR ied baila te ss iee'wigin Gre a eid @ w Gp 0's 0 xtc

Steinberg, How Jewish Quotas Began, 52 Commentary 72

RRM ESSE IRA TERE iy ht UPA See Cee Gs AT

United States Bureau of the Census, Census of Population:

1970, General Population Characteristics, Washington,

Final Report PC(1)-B49, Table 18; Idaho Final Re-

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

EE TD Wak ws 0 4k v'n 6:0 0 00 kee x wank s

24

23

25

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1973.

No. 73-235,

MARCO DE FUNIS, et al.,

Petitioners,

vs.

CHARLES ODEGAARD, ei al.,

Respondents.

BRIEF OF THE ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH AMICUS CURIAE,

OPINIONS BELOW.

The opinions of the Supreme Court of Washington are re-

ported at 82 Wn. 2d 11, 507 P. 2d 1169, and are reprinted as

Appendix A to the petitioner’s Jurisdictional Statement or in the

Alternative Petition for Certiorari.

JURISDICTION.

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

§ 1257(3). Certiorari was granted on 19 November 1973.

CONSENT OF THE PARTIES.

Both petitioners and respondents have graciously consented to

the delayed filing of this brief, and their letters of consent are

on file with the Clerk of this Court.

QUESTIONS PRESENTED.

The questions presented in this case are two:

1. May a State establish racial quotas for the admission of

students to its law school?

2. May a State, which cannot constitutionally discriminate

on racial grounds against black applicants to its law school, con-

stitutionally discriminate on racial grounds against white ap-

plicants to its law school?

CONSTITUTIONAL PROVISION.

The Fourteenth Amendment to the Constitution of the United

States provides:

“... 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 CURIAE.

B'nai B'rith, founded in 1843, is the oldest civic service

organization of American Jews. The Anti-Defamation League

was organized in 1913 as a section of B’nai B'rith to advance

good will and mutual understanding among Americans of all

creeds and races, and to combat 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 amicus briefs in

this Court urging the unconstitutionality or illegality of racially

discriminatory laws and practices in such cases as, ¢.g., Shelley

v. Kraemer, 334 U. S. 1 (1948); Sweatt v. Painter, 339 U. S.

629 (1950); Brown vy. Board of Education, 347 U. S. 483

(1954); Colorado Anti-Discrimination Commission yv. Con-

tinental Airlines, Inc., 372 U. S. 714 (1963); Jones v. Alfred

H. Mayer Co., 392 U. S. 409 (1968); Sullivan v. Little Hunt-

3

ing Park, Inc., 396 U. S. 229 (1969); San Antonio Inde-

pendent School District v. Rodriguez, 441 U. S. 1 (1973).

The “numerus clausus,” the racial quota that is involved in

this case, is of particular concern to the Jewish minority in this

country because of the long history of discrimination against

Jews by the use of quotas, both in Europe and in the United

States. See, ¢.g., HIGHER EDUCATION FOR AMERICAN De-

MOCRACY, A REPORT OF THE PRESIDENT’s COMMISSION ON

HiGHER EpucaTion 35 (1947); S. Kennepy, Jim Crow Guipe

To THE U. S. A. 92 (1959; 1973); Steinberg, How Jewish

Quotas Began, 52 COMMENTARY 72 (1971). See also G.

Kiscu, THe Jews in MepievaL Germany: A Stupy or THEIR

LEGAL AND SociaL Status (2d ed. 1970); J. Marcus, Tue

RIsE ANE Destiny OF THE GERMAN Jew 11 (1934); S. SEGAL,

THE NEW POLAND AND THE Jews 197 (1938); L. KocHan,

ed., THE Jews in Soviet Russia since 1971 1-2, 17, 90, 91, 92,

94, 146 (2d ed. 1972); S. Baron, THe Russian Jew UNDER

Tsars AND Soviets 57 (1964). Because of the importance to

all groups within the American society of the questions presented

by this case, an argument on behalf of any one group would be

inappropriate. It may, nevertheless, be noted that after only 30

or 40 years of open admissions, the universities which, for cen-

turies, set the style in excluding or restricting Jewish students,

may, again be able to do so, again in the name of enlightenment,

if the Washington decision is not reversed. See, ¢.g., Steinberg,

How Jewish Quotas Began, 52 CommENTARY 72 (1971);

Kramer, What Lowell Said, Tut American Hesrew 394

(1923).

STATEMENT.

Petitioner Marco DeFunis, applied for and was denied ad-

mission to the 1974 class commencing September, 1971 of the

University of Washington Law School, the only law school

4

operated by the State of Washington. (Rev. Code of Washington,

Ch. 28B.20) Thereupon DeFunis, his wife, and his parents

brought suit in the Superior Court of the State of Washington,

seeking an order that DeFunis be admitted on the ground that

the procedures by which he was excluded were racially dis-

criminatory. Following trial, the Superior Court ordered the

admission of DeFunis. Pursuant to the court's order, he was

enrolled as of September 22, 1971. The University appealed.

On March 8, 1973, the Supreme Court of Washington reversed

the order to admit DeFunis. On June 5, 1973, Mr. Justice

Douglas stayed execution and enforcement of the judgment of

the Washington Supreme Court pending 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 size of the entering class

is dependent on the residual number 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 a

maximum of 150. There were 1,601 applications.(St. 33-35.) *

The task of filling the places available in the first-year class

was assigned to an admissions committee consisting of five facul-

ty members and two students. (St. 330.) A “Guide for Appli-

cants” issued by the law school described the admissions process

that had been applied the previous year and announced that the

law school anticipated it would “be applied in determining

membership in the [entering] class of 1971.” The Guide stated:

In assessing applications, we began by trying to identify

applicants who had the potential for outstanding perform-

ance in law school. We attempted to select applicants

for admission from that group on the basis of their ability to

to make significant contributions to law school classes and

to the community at large.

We gauged the potential for outstanding performance in

law school not only from the existence of high test scores

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

contains the transcript of testimony.

5

and grade point averages, but also from careful analysis

of recommendations, the quality of work in difficult analyti-

cal seminars, courses, and writing programs, the academic

standards of the school attended by the applicant, the ap-

plicant’s graduate work (if any), and the nature of the

applicant's employment (if any), since graduation.

An applicant's ability to make significant contributions

to law school classes and the community at large was as-

sessed from such factors as his extracurricular and com-

munity activities, employment, and general background.

We gave no preference to, but did not discriminate

against, either Washington residents or women in making

our determinations. An applicant's racial or ethnic back-

ground was considered as one factor in our general attempt

to convert formal credentials into realistic predictions.

( Defendants’ Exh. 45.)

While two general, non-racial factors in the admissions

process were thus announced: (1) “potential for outstanding

performance,” and (2) “ability to make significant contribu-

tions to law school classes and to the community at large,”

testimony by the chairman of the admissions committee made

it clear that the second factor was definitely subordinate, if

indeed it had any substantial weight at all. The committee, its

chairman explained, “proceeded in a fashion of trying to identify

those individuals that it thought had the highest probability

of success in law school with a possible secondary qualifica-

tion of selecting from among those individuals on the basis

of people who might make outstanding contributions to the

law school classes under the law school community.” (St. 360.)

In practice, the admissions process worked as follows. The

committee had before it transcripts from all schools and col-

leges previously attended by the applicant, his score on the

law school admissions test, which is nationally administered,

letters of recommendation, and a statement by the applicant

himself. (St. 338; 22.) By means of a formula combining the

applicant's score in the law school admissions test and his

junior and senior year college grade averages, a law school

6

predicted first-year average was established. (St. 360; 56; 181;

357.) All applicants whose predicted first-year average was 78

or above (the highest was 81), and a very high percentage

(93 out of 105) of applicants with a predicted first year average

between 77 and 78 were admitted. (Defendants’ Answers to

Interrogatories, Tr. 44.*)

Applications showing a score above 77 were thus treated

almost automatically, on the basis simply of the numerical

score. The same automatic treatment was afforded applica-

tions showing a score of 74.5 or below, but only if they were not

applications of black Americans, Chicano Americans, native

American Indians, or Philippine Americans. If not coming from

these four groups, applications with a score of 74.5 or below

were examined by the chairman of the admissions committee

alone. Except in the case of applications of returning military

veterans who had been admitted in earlier years, and with the

exception also, as he testified, of “maybe one or two cases

outside of the military area,” the chairman of the admissions

committee rejected all these low-score applications out of hand.

Thus, as of August 1971, when the admissions process was

virtually complete and some 275 acceptances had been sent out

(allowing for non-acceptance among those invited), only nine

applicants who were not Chicano, Indian, or Philippine and

who had scores of 74.5 or below had been admitted, and these

were overwhelmingly cases of returning veterans. (St. 340-41;

Defendants’ Answers to Interrogatories, Schedule A, Tr. 48-52.)

There was thus left a residual category of applications,

which was divided into two groups. The first was the group of

applications showing predicted first-year averages below 77

(with a few 77’s included during the latter part of the process)

(St. 340), but above 74.5, where the applicant was not black

American, Chicano American, native American Indian, or

Philippine American. This was the group that included DuFunis,

whose score was 76.23. The second group consisted of ap-

* “Tr.” refers to the Transcript of Record on Appeal to the

Supreme Court of Washington.

a

plications of black Americans, Chicano Americans, native

American Indians, or Philippine Americans regardless of the

predicted first-year average so long as it was below 77, which

included all but possibly one such application.* If it qualified

on the basis of race, it did not matter that an application

showed a score of 74.5 or below. It was put in this second

group, rather than being consigned to the chairman of the

admissions committee for summary disposition. Actually, 30

minority-group applications showing a score of 74.5 or below

were eventually accepted. (St. 340-42, 351; Defendants’ Exh.

44, p. 2; Defendants’ Answers to Interrogatories, Schedule A,

Tr. 48-52.)

Files in the first of these two residual groups—applicants

who were not b! ~k, Chicano, Indian, or Philippine but whose

averages fell between 77 and 74.5—-were assigned to committee

members at random for examination and report to the full com-

mittee, where they were acted upon. The second group, con-

sisting of all but possibly one of the black American, Chicano

American, native American Indian, and Philippine American

applicants, were treated distinctly and separately. Having ex-

plained that two groups were left over after the virtually auto-

matic admission of the high-score applicants and the virtually

automatic exclusion of non-minrity applicants with a score

of 74.5 and below, and that these :we ‘ps formed a residual

category, the chairman of the admissix is committee testified:

“The residual category, and let me segregate—segregate is the

wrong word, but minorities were put aside for separate con-

* Defendants’ Exh. 44, . 2, shows that one black applicant (and

no Chicano, Indian, or Philippine applicant) had a score

than DeFunis’s 76.23. But we are Bot told whether this

AB Bio gen md iain that, a ‘i (Tr. 48-53), with

sideration.” (St. 344.) Files of black applicants were sent to

a sub-committee consisting of a black law student and a faculty

member who had worked during the previous summer with a

special federally-funded program for training disadvantaged

college graduates interested in a career in law. (St. 359.) Files of

Chicano Americans, native American Indians, and Philippine

Americans were sent to an associate dean for review. The sub-

committe for black applicants and the associate dean who re-

viewed other minority files reported back to the full admissions

committee with recommendations for acceptance and rejection.

(St. 352, 121-26.)

Files in this separately treated group of black Americans,

Chicano Americans, native American Indians, and Philippine

Americans were compared only with each other and not with

the other applications passed upon by the committee or by its

chairman individually. “Our notion in separating that category,”

the chairman of the admissions committee testified, “was an

attempt to try to compare, to the extent we could, applications

that were essentially comparable, that is, we wish to treat and

consider the minority applications in the context of examining

minority applications rather than sprinkled throughout a group

of simply.the entire group of applications to the law school.”

(St. 351; St. 399.) The effort was to find “within the minority

category, those persons who we thought had the highest prob-

ability of succeeding on law school.” (St. 353.) The reason for

including a black student in the sub-committee to which files

of black applicants were assigned was the admissions commit-

tee’s “assumption . . . that a black person can better interpret

the experiences and background and educational opportunities

that a black has been exposed to than a white person can.” (St.

402.)

By the method described, 37 black American, Chicano

American, native American Indian and Philippine American

applicants were offered admission to the law school.* Of the

* The trial court found that 44 Afro-American, Asian-American,

Chicano-American, and American Indian applicants were admitted

9

37, one had a predicted first-year average higher than peti-

tioner De Funis’s 76.23. Thirty-six had predicted first-year

averages below De Funis’s. Thirty of them, as already noted,

had averages below 74.5, and but for their racial classification

would have been summarily rejected. There were other ap-

plicants also who were admitted with first-year predicted aver-

ages below that of petitioner De Funis, 23 of them as return-

ing veterans who had previously been admitted, and 25 for

other reasons that commended themselves to the discretion of

the admissions committee. The lowest score for a non-minority

group applicant who was admitted was 72.72. Twenty-four

minority applicants were admitted with scores below that. (De-

fendants’ Exh. 44; Defendants’ Answers to Interrogatories,

Schedule A, Tr. 48-52.)

The predicted first-year average was not the sole admissions

criterion employed by the law school, but the record is clear

that taking all criteria into account, in the law school’s own

judgment, its minority-preference program resulted in the ad-

mission, in the aggregate, of students acknowledged to be less

qualified than others who were not members of the designated

minority groups and who were, therefore, 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 proba-

ble likelihood of having a chance of succeeding in the study of

law with such academic supportive 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 ma-

as “minority” students, and we referred to this finding at p. 6 of

our Brief as Amicus Curiae in “Catiorsri, The figure Statement or

in the Alternative Petition for The used by the

trial court includes Asian Americans other than Ameri-

cans who were in fact subjected to no special or separate admis-

sions process but were treated in ordinary fashion in common with

non-minority applicants. (St. 352; Defendants’ Exhibit 44.)

10

jority students who are not admitted.” (St. 418.) And defining

the term “qualified” as indicating “the likelihood or proba-

bility [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 students who

at least, viewed as a group, have a less such likelihood than

the majority student group taken as a whole.” (St. 423.) There

followed this colloquy: :

Q. Of these 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 this definition, yes. (St. 423-24.)

The chairman of the admissions committee testified that

there was no fixed quota determining the number of minority

students to be admitted by the special, separate process adopted

by the law school. (St. 353.) But there was, if not a precise

number, then a zone or an order of magnitude. As indicated

above, the policy was not to take applicants who were unquali-

fied in the absolute sense that they had no reasonable chance

of succeeding, even with supportive assistance. It was in that

sense, in the sense of resisting the temptation to “say we are

going to take X number of black students no matter what,”

that the dean testified: “We do not have a quota... .” But

at this point also he added: “We want a reasonable representa-

tion. We will go down to reach it if we can,” without “taking

people who are unqualified in an absolute sense. . . .” (St.

420.)

The stated rationale for the minority-preference policy was

that the minority racial and ethnic groups whom the law school

now sought to provide with a “reasonable representation” were

those which had been “historically suppressed 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.) But there is no evidence in this

il

record, or in any materials outside the record we have been

able to find that might be suitable for judicial notice, of dis-

crimination against the four groups in question by the Univer-

sity of Washington. The President of the University, pledging

in a speech to students that the University would make “special

provision for disadvantaged black Americans,” gave as the

reasons for the policy the existence of slavery in the United

States until the Civil War and “the history after slavery of a

hundred years of separate and unequal treatment,” which he

said would have to be “matched by at least some years of sepa-

rate and unequal treatment the other way if the situation is

to be remedied.” (Defendants’ Exh. 13.) There is thus no indi-

cation of consciousness on the part of officials of the University

of separate and unequal or otherwise discriminatory treatment

of the groups in question at the University of Washington or

in the State of Washington. The record shows only that for

the year 1969-70, the University of Washington Law School

reported an enrollment of eight black students out of a total

of 356. (Defendants’ Exh. 7.) That comes to approximately

2.2%, and compares favorably with a percentage 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. See United States Bureau of the Census,

Census of Population: 1970, General Population Characteristics,

Washington, Final Report PC (1)-B49, Table 18; Idaho Final

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

(1)-B29, Table 18.

Nor is there any showing in this record that the criteria

used for admission, and particularly the first-year average,

are not probative of qualification and therefore operate to

discriminate against certain groups on the basis of race or

ethnic origin. Cf. Griggs v. Duke Power Co., 401 U. S. 424

(1971). On the contrary, as noted earlier, it was conceded that

the result of diluting these criteria was the admission of rela-

tively less qualified applicants. There is testimony in the record

—opinion evidence—that groups that have been ha:dicapped

12

over a long period of time “by virtue of economic and other

circumstances” and that have not had “the educational con-

dition and economic advantages for education [of] members

of other groups” are in a different position from those other

groups because: (1) they “may not [have been] exposed to the

same kind of emphasis on certain skill developments and so

on,” and (2) “our usual methods for evaluating applicants are

not particularly accurate” as to them. Some of the indicators

used, said the dean of the law school, “have a margin of error

even as to students from the major culture, and we know that as

to students from these minority cultures, they may be even

less reliable.” (St. 416-17; see also St. 73-74.)

This assumption, it is clear, underlay the minority-preference

policy. But it is equally clear on this record that this assumption

amounted to absolutely nothing more than the judgment,

acknowledged by the dean of the law school as noted above,

that applicants admitted under the special minority-preference

program were in the aggregate less qualified than other ap-

plicants admitted in the regular course, and than some ap-

plicants who were rejected. The law school neither abandoned

the criteria by which it judged qualifications, however imper-

fect, nor so far as this record shows evolved and applied any

special criteria, specially suitable to the groups in question

and capable of assessing their qualifications as rigorously as

those of other applicants were assessed. The assumption that

the criteria normally used were less than usually accurate with

respect to the groups in questions turns out on this record

to be nothing more than an assumption that owing to various

conditions of deprivation applicants admitted under the minority-

preference policy were less qualified than other applicants.

Moreover, there is no pretense in this record that the as-

sumption of cultural and economic disadvantage as applied to

any particular individual applicant 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

13

rested on anything but the applicant’s race. Nothing in this

record indicates that membership in one of the four racial

groups that received preferential treatment correlates with cul-

tural and economic deprivation, or that any effort was made

to find such a correlation. And the evidence is clear that no

effort was made to examine the mass of applications for in-

dications of cultural or economic deprivation, whatever the race

of the applicant.

The dean of the law school 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 candid 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 applica-

tions. On this record, therefore, the assumption of economic

and cultural disadvantage, as a rationale for the minority-

preference policy merges into the rationale of historic conditions

of oppression and discrimination.

An alternate and broader possible rationale is explicitly dis-

avowed in this record. The law school, the chairman of the

admissions committee testified, did not pursue a general policy

of trying to achieve a balanced class. “About. the only thing,

I suppose,” he said, “that can be said in this direction is, of

course, the policy with respect to the representation within the

law school community of minority students, if that, in some

sense, can be considered an issue of class balance; negatively, I

suppose, in negating the general overtones of class balance, the

committee did not proceed to, with respect to any stated policy,

certainly with the view of trying to procure certain numbers of

individuals from various parts of the United States, from various

employment skills, from various undergraduate majors, or any

of the other numerous possible means that one could have for

saying a class has balance.” (St. 360.)

14

On this record, the trial court ordered DeFunis’s admission

on the ground that he had been excluded only by reason of his

race.

The Supreme Court of Washington reversed the judgment of

the trial court. The Supreme Court held that plaintiff had stand-

ing to raise the issues presented, and that the case was not

moot. 507 P. 2d at 1177, n. 6. Coming to the merits, the

court held that the law school’s admissions policy did

not constitute invidious and _ stigmatizing discrimination

any more than did the color-conscious policies mandated,

and in a dictum permitted, by this Court in Swann v. Charlotte-

Mecklenburg Bd. of Education, 402 U. S. 1, 16 (1971), or

by certain decisions of lower federal courts such as Carter v.

Gallagher, 452 F. 2d 315 (8th Cir. 1971), cert. denied, 416

U. S. 950 (1972); Porcelli v. Titus, 431 F. 2d 1254 (3d Cir.

1970), cert. denied, 402 U. S. 944 (1971); Contractors Asso-

ciation of Eastern Pennsylvania v. Secretary of Labor, 442 F.

2d 159 (3d Cir. 1971)), cert. denied, 404 U. S. 584 (1971).

Nevertheless, the Washington Supreme Court held, a compelling

state interest must be shown in order to justify classifications

based on ‘race. It found such compelling state interests in: (1)

The elimination of “racial imbalance within public legal educa-

tion,” 507 P. 2d at 1182, having regard to the fact that racial

minorities are as fully taxed as anyone else for the support of

public education, including public legal education; (2) The

production of “a racially balanced student body at the law

school,” 507 P. 2d at 1184, which may be considered necessary

by educational authorities in order to train lawyers fully com-

petent to practice in the American multi-racial society;

(3) The alleviation of a nation-wide “shortage of minority

attorneys.” 507 P. 2d at 1184.

It had been suggested, the court said, that these compelling

state purposes could be served by improving elementary and

secondary education of minority students so that they could

15

secure equal representation by having their applications to

law school considered competitively, with no need for prefer-

ential consideration. Such a program, the court went on, would

not work effectively in the foreseeable future. Consequently

there were no less restrictive means available that would serve

the state’s compelling interest as effectively as a preferential

minority admissions policy.

The court noted that underlying the law school’s admissions

policy was the assumption that certain racial groups had been

historically suppressed and disadvantaged. But the court did

not appear to view this assumption, which it shared, as in itself

constituting a compelling state interest. The court also set

aside as not relevant for purposes of decision of the case

questions whether de jure or de facto discrimination had existed

at the University of Washington.

The court held further that there was no denial of equal

protection in that feature of the law school’s policy which

singled out only certain racial groups, since in light of the

purpose of the policy the racial classification did not need to

include all racial minority groups. Finally the court held that

the law school’s admissions procedures and their application

did not constitute arbitrary and capricious administrative action.

Predetermined standards and procedures were used, but a

numerical criterion was not the only one that was employed.

The numerical criterion was departed from for reasons having

to do with race, but in other cases for other reasons as well,

including the likelihood that an applicant would make a con-

tribution to the law school and to the community at large

following graduation. ‘

Justice Wright, while joining the majority opinion, filed

brief concurrence emphasizing the point that a “law school

admissions program should not and need not be based upon

purely mathematical factors.” 507 P. 2d at 1188. Justice Finley

and Stafford, who had also joined in the opinion of the court,

joined in Justice Wright’s concurrence as well.

Chief Justice Hale, with whom Justice Hunter joined, filed

a dissent. The law school’s admissions program violated the

14th Amendment, Chief Justice Hale maintained, and could

not be sanctioned by the holdings of any of the cases relied

upon by the majority. “The circle of inequality cannot be

broken,” said the Chief Justice, “by shifting the inequities from

one man to his neighbor.” 507 P. 2d at 1189. The Chief

Justice also regarded the administration of the law school’s

SUMMARY OF ARGUMENT.

Marco DeFunis was not permitted to compete for all of the

places in the entering class of the University of Washington

Law School. He was excluded solely because of his race from

a significant number of places which were set aside and reserved

for other races. Had DeFunis been black, Indian, Chicano or

Philippine, such exclusion would have been unconstitutional. (In-

deed if DeFunis were any of these, most of those appearing

against him here would be his champions instead of his ad-

versaries.) If the Constitution prohibits exclusion of blacks and

other minorities on racial grounds, it cannot permit the exclusion

of whites on racial grounds. For it must be the exclusion on

racial grounds which offends the Constitution, and not the

particular skin color of the person excluded.

For at least a generation the lesson of the great decisions of

this Court and the lesson of contemporary history have been

the same: discrimination on the basis of race is illegal, immoral,

unconstitutional, inherently wrong and destructive of demo-

cratic society. Now this is to be unlearned and we are told that

this is not a matter of fundamental principle but only a matter of

whose ox is gored. Those for whom racial equality was de-

manded are now to be more equal than others. Having found

17

support in the Constitution for equality, they now claim support

for inequality under the same Constitution. This is the classic

hard case making very bad law.

A state-imposed racial quota is a per se violation of the

Equal Protection Clause because it utilizes a factor for measure-

ment that is necessarily irrelevant to any constitutionally ac-

ceptable legislative purpose. A racial quota is a device for

establishing a status, a caste, determining superiority or in-

feriority for a class measured by race without regard to in-

dividual merit.

There was a finding by both courts below that the State of

Washington used racial criteria to exclude DeFunis from ad-

mission to the State’s law school. Exclusion from a state law

school on the basis of race has long since been declared by this

Court to be unconstitutional.

The only justification for use by a state of a racial classifica-

tion is its use to cure or alleviate specific, illegal racial discrim-

ination. There is no basis in this record even to suggest earlier

illegal racial discrimination to be remedied by the racial quota

adopted by the law school here.

Even if a racial quota were not, per se, a violation of the

Equal Protection Clause, like any racial classification it was not

available for use by a state in the absence of a “compelling

state interest.” There is no “compelling state interest” shown

on this record.

The Racial Quota Utilized by the Law School of the University

of the State of Washington Is a Violation of the Equal

Protection Clause of the Fourteenth Amendment.

The facts have been set out in detail in the above Statement

in order to reveal the true nature of the racial quota system

for admissions adopted by the University of Washington Law

School. The size of the class was fixed within approximately

within each of the two groups. (St. 353; 420.) But the candi-

dates in one group were never considered in competition for the

places allotted to the other group. (St. 353; 399.) The number

of places allotted to minority applicants was changed from year

to year by as inconspicuous a decision as possible. But a quota

is no less a quota because it is not labelled as such or because

it is subject to annual adjustment. (St. 416; 420.)

The use of the quota system—the segregation of two groups

of applicants by race with admission for each group limited to its

assigned numbers—makes it clear that this is not simply a case

where race was used as one among many factors to determine

admission. Instead, the law school used race as the criterion for

imposing entirely separate admissions procedures. The class that

entered the University of Washington Law School in 1971 was in

fact two classes, distinguished in terms of racial attributes, one of

“minority” students and the other of “majority” students, recog-

nized and chosen as such by the University. To the extent that

a place was assigned to one group, it was inaccessible to a

student from the other group. What was demonstrated by the

law school here was not a form of integration of races but

rather a form of segregation of the races.

Never, since this Court struck down what Mr. Roy Wilkins

has called a “zero quota” (N. Y. Post, 3 March 1973) in

Brown ¥. Board of Education, 347 U. S. 483 (1954), has a

racial quota been approved by this Court. Both proponents and

opponents of integration have recognized such quotas as per se

19

violations of the Equal Protection Clause that cannot be justi-

fied. That is why respondents try to assert that what is in-

volved here is not a “quota.” For a quota is not merely a

racial classification. It is an attribution of status—of caste—

fixed by race. A quota necessarily legislates not equality, but

a governmental rule of racial differences without regard to an

individual’s attributes or merits.

This is made clear by the fact that the “minority” applicants

were not judged by different criteria for admission than were

applied to the “majority” candidates. The predictive factors

for measuring potential success in law school were the same for

both groups. What was different was the law school’s ruling

that “minority” candidates, because of their race, could not be

expected to meet the higher standards established for “majority”

students, without any regard to be given to individual capaci-

ties. Here lies the inherent evil of quotas that reverse the

objective of Anglo-American democracies to move toward free-

dom by the rejection of status, measured by immutable factors

like race, for assigning an individual his place in our society.

I. Amy Racial Classification by # State Is Presumptively Invalid

Under the Equal Protection Clause of the Fourteenth Amend-

ment.

A generation ago, this Court held that the exclusion of a

black applicant from a state university law school solely be-

cause of his race was a violation of the Equal Protection Clause.

Sweatt v. Painter, 339 U. S. 629 (1950). The Court is, never-

theless, asked here to hold that the exclusion of a non-black

applicant from the law school of the State of Washington, solely

because of his race, is a valid racial classification. We respect-

fully submit that the rule of equality mandated by this Court

in Sweatt v. Painter compels the reversal of the judgment of

the Supreme Court of Washington in this case.

It has long been established that a racial classification im-

posed by “official state sources,” Loving v. Virginia, 388 U. S.

20

1, 10 (1967), is presumed to be invalid under the Equal

Protection Clause.

[W]e deal here with a classification based upon the race

of the participants, which must be viewed in light of the

historical fact that the central purpose of the Fourteenth

Amendment was to eliminate racial discrimination ema-

nating from official sources in the States. This strong

policy renders racial classification “constitutionally sus-

pect,” Bolling v. Sharpe, 347 U. S. 497, 499; and subject

to the “most rigid scrutiny,” Korematsu v. United States,

323 U. S. 214, 216; and “in most circumstances irrele-

vant” to any constitutionally acceptable legislative purpose.

Hirabayashi v. United States, 320 U. S. 81, 100.

(McLaughlin v. Florida, 379 U. S. 184, 191, 192

(1964).)

Racial discrimination is not justified because the burden of

the state action falls on both races or all races so classified.

“Equal protection of the laws is not achieved through indis-

criminate imposition of inequalities.” Shelley v. Kraemer, 334

U. S. 1, 22 (1948).

There is no question here but that DeFunis’s exclusion from

the state law school was a result of a racial classification. The

trial court ordered DeFunis’s admission for that reason. Nor -

did the Supreme Court of Washington disagree with the lower

court that the law school had tised a racial classification to

exclude DeFunis. Rather, it announced that, in ostensible

conformity with the commands of this Court, “the burden is

upon the law school to show that its consideration of race in

admitting students is necessary to the accomplishment of a

compelling state interest.” (507 P. 2d at 1182.)

In short, the controversy in this Court is not over the ques-

tion whether a racial classification was used as the basis for

the exclusion of DeFunis, but whether that otherwise un-

constitutional racial classification was validated by “a com-

pelling state interest.”

21

It is our position that a racial classification that takes the

form of a racial quota, as in this case, is unconstitutional vel

non, because racial quotas are anathema to the concept of

individual freedom. But we submit that even if a racial quota

does not fall into a special invalid category of its own giving

rise to an irrebuttable presumption of violation of the Four-

teenth Amendment, the racial classification here cannot be

validly imposed within the limits of the Equal Protection Clause.

Il. A Racial Classification by a State Is Invalid Under the Equal

Protection Clause Except as a Specific Remedy for Specific

Unconstitutional or Iegal Racial Discrimination.

Not since Hirabayashi v. United States, 320 U. S. 81 (1943),

and Korematsu vy. United States, 323 U. S. 214 (1944), has

this Court permitted the use of race as a factor for classifica-

tion, except to cure an earlier illegally imposed racial dis-

crimination. And even in those cases in which this Court has

sanctioned such limited cognizance of a racial factor, the use

of the racial factor has been condoned only to assure the

elimination of the illegal discrimination and never as a tool

for “reverse discrimination” of the kind sought to be justified

by the Washington Supreme Court here. Cf. Griggs v. Duke

Power Co., 401 U. S. 424, 430-31 (1971).

The Washington Supreme Court rested heavily on a dictum

of this Court in Swann v. Charlotte-Mecklenburg Board of

Education, 402 U. S. 1, 16 (1971), which affords no support

for the conclusion reached by the state court. At most, Swann,

in its context of remedial litigation, suggested that a school

system might provide for the distribution of students already

in the system in the relative proportions of the races in the

school system as a whole.

Indeed, the Washington Supreme Court recognized that the

use of “race” in Swann was justified only “to prevent the per-

petuation of discrimination and to undo the effects of past

segregation.” (507 P. 2d at 1180.) But it failed to recognize

22

that there was no showing on the record in this case of any

pas discrimination by respondents that purported to be remedied

by tne law school’s use of a racial quota. Nor did it seem to

understand that Swann did not endorse a “fixed racial balance

or quota” even in the presence of a clear demonstration of

prior discrimination. Winston-Salem/Forsyth County Board of

Education v. Scott, 404 U. S. 1221, 1227 (1971).

It is equally important to sce that in Swann, and other cases

dealing with segregation in public schools, the contemplated

remedy—a remedy for specific racial discrimination—is a reas-

signment of students within the system. The “racial balances”

involved in those cases denied no white or black, Indian or

Asiatic, education at a state school. Here, however, the law

school’s admission process flatly denied access of white students,

including DeFunis, to state educational facilities in order to

make them available to others of different race, because of their

race.

Each of the cases cited by the Washington Supreme Court to

justify the racial discrimination indulged by the law school here,

e.g., Swann, supra; Porcelli v. Titus, 431 F. 24 1254 (3d Cir.,

1970); Carter v. Gallagher, 452 F. 2d 315 (8th Cir., 1971),

tolerates the use of a racial standard by the state, but only to

cure racial discrimination imposed by the party against whom

the remedy is ordererd. In this case, however, there is nothing

in the record on which to base a finding of unequal treatment by

race in the University of Washington, or, indeed, in the State

of Washington.

Generalized historical assertion about conditions somewhere

in the United States some time in the past is not the premise of

the remedial discrimination cases decided by this Court, nor

should it be. If such a predicate were allowed to replace care-

ful, specific findings of discrimination as the necessary condition

for sustaining reverse discrimination, such state racial preferences

would be constitutionally sanctioned in a wide range of cir-

cumstances that would denigrate if not destroy the concept of

23

racial equality specified in the Equal Protection Clause. Nor, in

the light of our history, see, ¢.g., G. MYERS, A History oF

BIGOTRY IN THE UNITED STATES (rev. ed. 1960), would such

“benevolence” be limited to those few “minorities” singled out

by the State of Washington here. “The clear and central pur-

pose of the Fourteenth Amendment was to eliminate all official

State sources of invidious racial discrimination in the States.”

Loving v. Virginia, 388 U. S. 1, 10 (1967).

We submit that the use of race as a standard for the elimina-

tion of specific prior racial discrimination permits only the

elimination of specific prior racial discrimination and not a sub-

stitution of racial discrimination against others.

Ii. The “Benign” Intent cf the Framers of the Racial Quota

Here Cannot Save It. The Validity of State Racial Discrimi-

nation Is Measured by Effect Not Motive.

It is argued that the racial quotas adopted by the law school

here are not “invidious” because their purpose was “benign.”

But respondents’ purpose in effecting its racial quota system is

irrelevant. It is not the purpose but the effect of a racial classifi-

cation that commands its invalidation. Cf. Griggs v. Duke Power

Co., 401 U. S. 424, 432 (1971). This is a lesson that this

Court has continuously declared. For example, in Wright v.

Council of City of Emporia, 407 U. S. 451, 462 (1972), the

Court answered “Thus, we have focused upon the effect—not the

purpose or motivation—of a school board’s action in determining

whether it is a permissible method of dismantling a dual system.

The existence of a permissible purpose cannot sustain an action

that has an impermissible effect.” And in Burton v. Wilmington

Parking Authority, 365 U. S. 715, 725 (1961), the Court

said: “[N]o State may effectively abdicate its responsibilities

by either ignoring them or by merely failing to discharge them

whatever the motive may be. It is of no consolation to an in-

dividual denied the equal protection of the laws that it was

done in good faith.”

24

The Supreme Court of Washington conceded that “the

minority admissions policy is certainly not benign with respect to

nonminority students who are displaced by it.” (507 P. 2d

at 1182.) Since it is the “nonminority student” who is the

victim of this invalid racial classification, that should suffice

to dispose of the argument of the benign nature of the racial

classification. But there is even reason to doubt the State

court’s notion that the evil of a racial quota does not stigmatize

the “minority student” who gains admissions under such cir-

cumstances. For there is certainly the great possibility of that

consequence, especially where, as under the law school’s ad-

missions program, the lower admission standards for “minority

students” were such a well-publicized element. (St. 418; Exh.

45.) A recent black graduate of a law school put the problem

cogently:

Traditionally, first-year law students are supposed to be

afraid, or at least awed; but our fear was compounded by

the uncommunicated realization that perhaps we were not

authentic law students and the uneasy suspicion that our

classmates knew that we were not, and like certain members

of the faculty, had developed paternalistic attitudes toward

us: (McPherson, The Black Law Student: A Problem of

Fidelities, ATLANTIC 88 (April 1970).)

The quota system is admittedly not “benign” so far as the

excluded majority applicants are concerned. There is little or

no basis for suggesting that it is not “invidious” and “stigmatiz-

ing” for the category of applicant labelled by race as incapable

of meeting the standards applied to others. See Graglia, Spe-

cial Admission of the “Culturally Deprived” to Law School,

119 U. Pa. L. Rev. 351, 353-59 (1970).

Indeed, a racial quota is always stigmatizing and invidious,

particularly when it is applied to areas concerned with intel-

lectual competency and capacity.* This is so essentially for the

*It is suggested that such a statement lacks sincerity if

made by a non-black. And so we have attached as an Ap-

ix to this brief a copy of a nationally syndicated interview

with Dr. Kenneth Clark, no stranger to this Court’s decisions,

which confirms the position advanced by us here.

25

reasons stated by Professor Thomas Sowell in his book BLACK

EDUCATION, MYTHS AND TRAGEDIES 292 (1972):

[T]he actual harm done by quotas is far greater than

having a few incompetent people here and there—and

the harm that will actually be done will be harm primarily

to the black population. What all the arguments and cam-

paigns for quotas are really saying, loud and clear, is that

black people just don't have it, and that they will ha

to be given something in order to have something.

devastating impact of this message on

particularly black young people—will

extra jobs that may result from this strategy.

people who are already competent, and who

instrumental in producing more competence

rising generation, will be completely undermined,

becomes synonymous—in the minds of black and

alike—with incompetence, and black achievement be-

comes synonymous with charity or payoffs.

zs

if

eee

wi

The Washington Supreme Court announced that the law

school’s racial policies were on their face presumptively invalid

but might be justified on a showing of a “compelling state in-

terest.” It then examined the evidence and proceeded to vali-

date the racial quotas on what, at most, could be called a

“rational means” test. |

As we have already argued, there can be no “compelling state

interest” for racial classification by the state except for its use

to eliminate adverse racial classification theretofore imposed,

or perhaps where the nation’s security in time of war may be

thought to justify such classification. See Korematsu v. United

26

States, 323 U. S. 214 (1944); Hirabayashi v. United States,

320 U. S. 81 (1943). Assuming, however, that racial quotas

can be justified by some other “compelling state interest,” there

is no such interest justified in this record.

The record in this case is devoid of support for the conclu-

sion of “compelling state interest.” Indeed, there was no con-

scious effort by respondents at trial to demonstrate any com-

pelling state interest. Respondents’ case rested primarily on

“the cultural disadvantage” which the admissions committee

wished to take into account in awarding places in the class.

It was assumed, but not shown, that cultural disadvantage

could be correlated with the four minority groups whose mem-

bers were to be given preferential treatment. (St. 416; 73-74;

90; 108; 353; 400-01; 418-19; 424-25.) As one witness on

compensatory pre-law training put it: “In formal terms, we

articulate our concern for the economically and culturally dis-

advantaged. I suppose in practical terms our efforts have been

largely with the minority group student . . .” (St. 125.) The

equation between the “minority group students” and the cul-

turally deprived can no more be made to justify racial classifica-

tion than can the equation between minority groups and the

economically deprived in the political sphere. Compare Reit-

man Vv. Mulkey, 387 U. S. 369 (1967), with James v. Valtierra,

402 U. S. 137 (1971).

When asked to explain the law school’s race-based preferen-

tial treatment, respondents repeatedly claimed to be favoring

applicants from deprived cultural and educational backgrounds.

Those who offered this justification included the chairman of

the school’s admissions committee (St. 352; 402), the dean of

the law school (St. 416-18; 424-25), the president of the Uni-

versity (St. 225; 243-44), and the former chairman of the

board of trustees of the university (St. 108, 111). The evi-

dence is, however, clear that defendants did not give pref-

erential treatment to “deprived students” who were not blacks,

Re eR EIR Alt n ae meen

27

Chicanos, Indians, or Philippinos. (See, e.g., St. 344; 352;

399.)

There is nothing in this record that shows that membership

in one of the four minority races correlates with such depriva-

tion. Indeed, a member of one of the favored minorities was

to be treated as “culturally deprived” so far as the law school

was concerned, even if he came from a highly intellectual and

cultured family. Moreover, if a correlation could be made that

showed every member of the four racial minorities to fall into

the category of culturally and educationally deprived, the

classification would still be invalid for underinclusiveness be-

cause it would fail to include culturally and economically de-

prived persons who are not members of these four racial

minorities.

What the Constitution prohibits is ihat admissions be deter-

mined by race. Equal protection might not be offended by con-

sideration of cultural deprivation; it is offended by considera-

tions of race. If elimination of cultural deprivation were the

compelling principle, however, it was not the guide used for

special treatment for admissions to the law school here. The

rule established for the University of Washington School of

Law was simply that it was easier for a black, a Chicano, an

American Indian, or a Philippino to enter than for a white or

an Asian, without regard to the cultural deprivation from which

the applicant may or may not have suffered. (St. 108-09; 225;

243-44; 261; 418; 423-24; 431.)

To support the so-called state interest in discrimination on the

basis of race the Supreme Court of Washington relied only on

three bits of evidence: (1) a self-serving declaration by the

dean of the law school (St. 416); (2) the text of an impromptu

speech given by the president of the University to a group of

striking black students in 1968 during the time of the “univer-

sity troubles” (Exh. 13); and (3) a “Survey of Black Law

Student Enrollment” giving statistics for 125 law schools in-

cluding the University of Washington School of Law for the

28

year 1970-71 (Exh. 7). These three items are patently in-

adequate to carry the “heavy burden” of showing a compelling

State interest of the State of Washington in discriminating in

favor of four racial groups in filling its law school classes.

In this case the State, thus, made only a token effort to

shoulder the heavy burden of proving a compelling state interest

in racial discrimination. Even if the minimal proof accepted by

the Supreme Court of Washington could qualify under a ra-

tional means test, it cannot meet the compelling state interest

test. The substitution of the lower cuantum of proof is explicitly

forbidden by a consistent line of cases in this Court dealing

with racial classifications. Slaughterhouse Cases, 16 Wall. 36,

71 (1870: Strauder v. West Virginia, 100 U. S. 303, 307-08

(1880); Ex parte Virginia, 100 U. S. 339, 344-45 (1880);

Hirabayashi v. United States, 320 U. S. 81, 100 (1943);

Korematsu v. United States, 323 U. S. 214, 216 (1944); Oyama

V. California, 332 U. S. 633, 644-46 (1948); Bolling v. Sharpe,

347 U. S. 497, 499, (1954); McLaughlin v. Florida, 379 U. S.

184, 191-92 (1964); Loving v. Virginia, 388 U. S. 1, 10-11

(1967); Hunter v. Erickson, 393 U. S. 385, 392 (1969);

Graham Vv. Richardson, 403 U. S. 365, 372 (1971).

That the compelling state interest necessary to justify a racial

quota has not been established here may be quickly seen from

a glance at the decisions of this Court in recent years that have

applied that standard. Although none of them involved so patent

a violation of the Equal Protection Clause as a racial quota, in

each case this Court has ruled that the interest of the state was

not sufficient to override the prima facie violation of the Equal

Protection Clause. McLaughlin v. Florida, 379 U. S. 184

(1964); Carrington v. Rash, 380 U. S. 89 (1965); Harper v.

State Board of Elections, 383 U. S. 663 (1966); Williams v.

Rhodes, 393 U. S. 23 (1968); Kraemer v. Union Free School

District, 395 U. S. 621 (1969); Dunn v. Blumstein, 405 U. S.

330 (1972). Indeed, as the Chief Justice pointed out in his dis-

sent in Dunn v. Blumstein, “[No] state law has ever satisfied this

29

seemingly insurmountable standard.” (405 U. S. 330, 363-64

(1972).)

The “compelling interest” standard has another attribute that

was substantially ignored by the Washington Supreme Court

and that dictates the reversal of that court’s judgment. This

Court stated in Dunn v. Blumstein, supra, 405 U. S. at 343:

“Ulf there are other, reasonable ways to achieve those goals

with a lesser burden on constitutionally protected activity, a

State may not choose the way of greater interference. If it

acts at all, it must choose ‘less drastic means.’” There was in

this case no substantial undertan..:; to discover the feasibility

of means other than the utilization of a presumptively invalid

racial quota for admission to the law school to accomplish the

alleged state interests asserted here.

Obviously, as the compelling state interest cases already cited

reveal, this Court is not the place to examine the alternatives

that might permit. the State to bring more of the culturally

deprived members of racial minorities into the law school on

an equal footing with other students. Affirmative action pro-

grams, not quotas are the requirements of national policy.

(See our brief in support of the petition for certiorari in this

case at pp. 19 et seq.) An “open admission” policy without

racial standards might afford the answer. It might also be

possible to open more places in law schools at the University

of Washington or in other State university facilities where

admission would not depend on the racial characteristics of the

applicants. Special schooling might be afforded for preparation

for admission to law schools for those who cannot meet the

existent standards without such additional training, but again

only so long as that schooling is not afforded on a racial basis.

This case, however, involves no legitimate affirmative action,

but a racial quota. As our brief in support of the petition for

certiorari pointed out, so-called affirmative action programs that

are not circumscribed in terms consistent with the Equal Pro-

tection Clause collapse into the very evil they seek to cure.

The social problem that the Washington Supreme Court pur-

ported to address cannot properly be considered one of quantity

rather than quality. Even if it were legitimate to postulate,

as that court did, that a lawyer or doctor should be trained to

serve only persons of the same skin color or parental origins

—<4 proposition that itself is inconsistent with the doctrine of

equality underlying the Fourteenth Amendment—those doctors

and lawyers should have the same appropriate skills and capac-

ities as those practising their professions on behalf of others.

The answer to the problem cannot be, as the Washington court

would have it, a simple play on numbers. This we think should

be evident from the fact that the alleged compelling state in-

terest asserted by the Washington court here—providing train-

ing for black lawyers to serve black clients—would most easily

and readily be met by creation of additional separate law schools

for “minority” applicants who do not meet the standards for

admission to existent law schools. No one doubts that the

patent invalidity of such racial classification could not be over-

come by the “compelling state interest” asserted here. Neither

can the racial device actually used by the law school be justified

Supreme Court.

The most charitable reading of the Washington Supreme

Court's decision is that it has said that the alternative means for

reaching its goal are more difficult, more time-consuming, more

expensive. So long as the alternatives have the virtue of con-

stitutionality, however, the Equal Protection Clause commands

their use rather than the unconstitutional means that may be

quicker, or less difficult, or less expensive. If the goals attributed

to the state here are constitutionally valid, they he ac

complished by the unconstitutional means of that most in Ayhous

of discriminatory devices, the racial quota.

ee

31

The judgment below should be reversed because it condones

the use of a patently unconstitutional means to an invalid end.

A racial quota creates a status on the basis of factors that have

to be irrelevant to any objectives of a democratic society, the

factors of skin color or parental origin. A racial quota derogates

the human dignity and individuality of all to whom it is applied.

A racial quota is invidious in principle as well as in practice.

Though it may be thought here to help “minority” students, ‘it

can as easily be turned against those same or other minorities.

The history of the racial quota is a history of subjugation not

beneficence.

The evil of the racial quota lies not in its name but in its

effect. A quota by any other name is still a divider of society,

a creator of castes, and it is all the worse for its racial base,

especially in a society desperately striving for an equality that

will make race irrelevant, politically, economically, and socially.

Respectfully submitted,

ALEXANDER M. BICKEL,

261 St. Ronan Street,

New Haven, Connecticut 06511,

Pour B. KURLAND,

Two First National Plaza,

Chicago, Illinois 60670,

Attorneys for Amicus Curiae.

Larry M. Lavinsxy,

300 Park Avenue.

New York, New York 10022,

ARNOLD FORSTER,

315 Lexington Avenue,

New York, New York 10016,

Of Counsel.

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