Amicus Curiae Brief — DeFunis v. Odegaard

GROUP OF LAW SCHOOL DEANS AS AMICUS CURIAE

Tuomas Wetpow Cunistoruzr, Dean, University of Ala

bama School of Law

Gonpow A. Cunusrewson, Dean, American University Law

Evosn 8. Canm, Co-Dean, Antioch School of Law

Juan Camrzn Canx, Co-Dean, Antioch School of Law

Wuszsep H. Pevaicx, Dean, Arizona State University

College of Law

Ricnazp G. Huse, Dean, Boston College of Law

Pavt M. Suwxurp, Dean, Boston University School of Law

Eowanp C. Hatsacn, Jn., Dean, University of California

School of Law, Berkeley

Dawret J. Drxerns, Dean, University of California School

of Law, Davis

Mazviw J. Ampenson, Dean, University of California,

Hastings College of Law, San Francisco

Muxaay L. Scuwanrz, Dean, University of California, Los

Angeles, School of Law

Laxspery Cowex, Dean, Case Western Reserve University,

Franklin T. Bacus Law School

E. Cumwtox Bamernozn, Jn, Dean, Catholic University of

America School of Law

Axtuun H. Travens, Jn., Acting Dean, University of Colo-

rado School of Law

Fraxcws C. Capy, Acting Dean, University of Connecticut

School of Law

Roozs C. Onamtonx, Dean, Cornell Law School

Romer B..Faem, Deon, Uahreeliy st Srapan Sree

w

aan 7 Ray Parrensox, Dean, Emory University School of

w

Joouva M. Monaz, III, Dean, Florida State University Col-

lege of Law

Avan Sanrvoup Fisuzn, Dean, Georgetown University Law

eS ee ce ae See University

National Law Center

J. Lawt Baven, Dean, Golden Gate College School of Law

Tux Reverery Faarcis J. Conxiusn, 8.J., Dean, Gonzaga

University School of Law

— Fazevmax, Dean, Hofstra University School

w

—, Mewanp, Jn., Dean, University of Idaho College

w

Warne BR. LaFave, Acting Dean, University of Illinois Col-

lege of Law

Dovo.tase G. Bosuxorr, Dean, Indiana University School

of Law

i 5 Dean, University of Louisville School

w

Faeventcx J. Lowen, Jz., Dean, Loyola University School

of Law, Los Angeles

Mazcet Garsaup, Jz., Dean, Loyola University School of

Law, New Orleans

Goxzpox D. Scuaszn, Dean, McGeorge School of Law, Uni-

versity of the Pacific

Tuxzovons J. Sr. Antoun, Dean, University of Michigan

Law School

Camu A. Avensacn, Dean, University of Minnesota Law

Fasvenicn M. Hart, Dean, University of New Mexico

School of Law

Ricuaxzp D. Scuwanrz, Dean, State University of New York

at Buffalo School of Law

Roszet B. McKay, Dean, New York University School of

Law

LeManquis DeJanmon, Dean, North Carolina Central Uni-

versity School of Law

Dicxsow Puussrs, Dean, University of North Carolina

School of Law

ee 5 Rant, Dean, Northwestern University School of

panes fe Suarren, Dean, University of Notre Dame Law

se ca Jn., Dean, Ohio State University College

a Scores, Dean, University of Oregon School of

Berwanp Woirman, Dean, University of Pennsylvania Law

School

Wuisen Hecxer, Acting Dean, Rutgers, The State Uni-

versity of New Jersey School of Law, Newark

Ricnanp Jzvrensox Cunoness, Dean, St. Louis University

School of Law

Dowatp T. Wecxererm, Dean, University of San Diego

School of Law

C. Detos Putz, Jz, Dean, University of San Francisco

School of Law

Guonoz J. Atzxanven, Dean, University of Santa Clara

School of Law

Rowext W. Foorzn, Dean, University of South Carolina

School of Law

Donorny W. Netson, Dean, University of Southern Cali-

fornia Law Center

—_— —_ Iaacovunas, Dean, Temple University School

w

ee Krxo, Dean, Texas Southern University School of

w

Ricuarp B. Amanpzs, Dean, Texas Tech University School

of Law

Samvuzt D. Tuurmay, Dean, University of Utah College of

Law

Aurzep W. Merve, Dean, Valparaiso University School of

Law

Rosert L. Kxavss, Dean, Vanderbilt University School of

Law

Wrap D. Lorensen, Dean, West Virginia University

College of Law

Laney K. Harvey, Dean, Willamette University College of

Law

Gzorce Bux, Dean, University of Wisconsin Law School

E. Geoncz Rupoirx, Dean, University of Wyoming College

of Law

(The institutional association of the signers of this brief

is provided for identification purposes. The signers do not

necessarily represent the view of their institutions. )

_

TABLE OF CONTENTS

Page

Interest of the Amici .......cccccccccccscvcccvccsees 1

Consent of the Parties ........ccsccccsccccccccsves 2

Question Pronsabed vices cccdcedcccvcsvsctvccescoes 2

Summary of Argument ...........ssceccsssccessees 2

Argument ooo cccccccccccccvccccescccvccccescceveee 3

The admissions policy of the University of ee yp tc

School of law the aasdes of

administrative j Rai dévcectedédusvessesoun

L Determining whom to admit to a law school class

involves weighing a myriad of factors, both sub-

jective and objective ............sceseeeesees

II. The racial and ethnic background of applicants

is an appropriate factor to consider in determin-

ing admissions to law school ................-

A. Purely mechanical criteria are an inadequate

basis for determining the composition of «

Ror welneek GANGS 550i. 8 8606S das éwbedbed dee

B. The desirability of a heterogeneous student

body is an appropriate element of a law

school’s admission policy ...............+.

C. The nature of legal services required by the

pu ublic is an appropriate consideration for a

w school in constituting its student body ..

D. It is appropriate for a law school’s admis-

sion layed to be sensitive to the pivotal role

by the legal profession in our national

ee)

10

11

13

Table of Contents Continued

Page

E. It is appropriate for the admissions policy of

a public law school to be sensitive to the need

to overcome the effects of past and present

illegal discrimination suffered by minority

i | PIO PTT OTTeT COTEL TT CTT Te 16

1. The paucity of minority lawyers is the re-

sult of discrimination ....... siighiig ties 16

2. Voluntary remedial action is not depend-

ent upon a finding of discrimination ..... 19

3. Remedial action may impinge on the ex-

pectations of others ........--...--++++. 21

Dg ee ALT FEELERS TE Fae ey Pee POET OPT TESTE 24

INDEX OF CITATIONS

Cases:

Addabbo v. Donovan, 16 N.Y.2d 619, 209 N.E.2d 112,

261 N.Y.S8.2d 68 (1965), cert. denied, 382 U.S. 905

SND: WG esdido cbt cater Eli aees SosGseceiwss... 19

Associated General Contractors of Massachusetts, Inc.

v. Altshuler, 6 EPD { 8993 (C.A. 1, 1973) ....... 9, 22

Balaban v. Rubin, 14 N.Y.2d 193, 199 N.E.2d 375, 250

N.Y.8.2d 281, cert. denied, 379 U.S. 881 (1964) .. 19

Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972) 19

Booker v. Board of Education, 45 N.J. 161, 212 A.2d 1

ES t.ceehShnstak 0Get'e abthes tahdKsoges «sso > 19

Brooks v. Beto, 366 F.2d 1 (C.A. 5, 1966) ........... 10

Brown v. Board of Education, 347 U.S. 483 (1954) .. 17

Carter v. Gallagher, 452 F.2d 315, modified en banc,

452 F.2d 327 (C.A. 8, 1972), cert. denied, 406 U.S.

a La eae d saaee oe cenas ses 0

CnetTa) Board of Examiners, 458 F.2d 1167 (C.A. 2,

Contractors Association of Eastern Pennsylvania v.

Secretary of Labor, 442 F.2d 159 (C.A. 3, 1971),

cert. denied, 404 U.S. 854 (1971) .............. 20, 22

Deal v. Cincinnati Board of Education, 369 F.2d 55

(C.A. 6, 1966), cert. denied, 389 U.S. 847 (1967). .7,19

Index of Citations Continued

Page

DeFunis v. Odegaard, 82 Wn.2d 11, 507 P.2d 1169

COUR ei eae coktne sek casa nesd ected thade bot 4,13

Fuller v. Volk, 230 F. Supp. 25 (D.N.J. 1964), vacated

on other grounds, 351 F.2d 323 (C.A. 3, 1965),

00: to on the merits, 250 F. Supp. 81 (D.N.J.

eonuvodide ccui ined WCcetsabstie et indienne 19

Gaston County v. United States, 395 U.S. 285 (1969).. 21

Guida v. Board of Education, 26 Conn. Supp. 121, 213

A3a 843 (Super. Ct. 1960). soc ne ves ccee cose sces 19

Guinn v. United States, 238 U.S. 347 (1915) ......... 6

Johnson v. Pike Corporation of America, 332 F. Supp.

GBD COLD, Cab RTA oie i 5 ein heels csc ee esas 21

Keyes v. School District No. 1, Denver, Colorado, 413

if Me Fs | OR ae eee rere eS 17

Local 189, United Papermakers and Paperworkers,

AFL-CIO v. United States, 416 F.2d 980 (C.A. 5,

1969), cert. denied, 397 U.S. 919 (1970) ......... 20

McDaniel v. Barresi, 402 U.S. 39 CREE anise d anton 18

Meredith v. Fair, 298 F.2d 696 (C.A. 5, 1962) ....... 6

Morean v. Board of Education, 42 N.J. 237, 200 A.2d 97

CR: 0 circic chp Wis OW 6. 0c nndass bods Kunaane cei 19

North Carolina State Board of Education v. Swann,

i Bie Re Fe) ee ae remy 19

Norwalk CORE v. Norwalk Redevelopment Agency,

906. F°.2d G90. (OA: S, 1968). vicinivnesc -ccveee 18, wus

Offerman v. Nitowski, 378 F.2d 22 (C.A. 2, 1967) . 19

Oregon v. Mitchell, 400 U.S. 112 (1970) ............ 21

Poreelli v. Titus, 431 F.2d 1254 (C.A. 3, 1970), cert.

denied, 402 U.S. 944 CRUE) onc nese dsyevebnse 20, 22

School Committee of Boston v. Board of Education,

352 Mass. 693, 227 N.E.2d 729 (1967), appeal dis-

missed, 389 US. 572 CIRO): aivierctiaeddben ede 19

Sobol v. Perez, 289 F.Supp. 392 (E.D. La. 1968)...... 14

Springfield School Committee v. Barksdale, 348 F.2d

SR COs 3 TR) 3s asd NE A A 8, 20

Swann v. Charlotte-Mecklenburg Board of Education,

GG UF BARD) 656 oi Ce 8, 12, 19, 23

Sweatt v. Painter, 339 U.S. 629 (1950) ............ 12,17

Tometz v. Board of Education, Waukegan City, 39 IIL

2d 593, 237 N.E.2d 498 (1968) ...............06. 19

United States v. Bethlehem Steel Corporation, 446 F.2d

GOR COA: BL DITE) Siri 5S ek Fee ea wd hee 22

iv Index of Citations Continued

Page

United States v. Jefferson County Board of Education,

372 F.2d 836 (C.A. 5, 1966), cert. denied sub nom.

Board of Education of Bessemer v. United States,

S05 IM OO CAINE) on si lh. okies e. Sevens 9

United States v. Louisiana, 252 F.Supp. 353 (E.D. La.

1963), aff’d, 380 U.S. 145 (1965) .......-..--+.+- 9

United States v. Wood, Wire and Metal Lathers In-

ternational Union, Local Union 46, 341 F.Supp.

694, (S.D.N.Y. 1972), aff’d, 471 F.2d. 408 (C.A. 2,

1973), cert. denied, 412 U.S. 939 (1973) ......... 22

Wanner v. County School Board of Arlington County,

Virginia, 357 F.2d 452 (C.A. 4, 1966) .......... 8, 19

STATUTES:

5 U.G.C. $6 S000, S312... cc wcrccecvccccsveveves 5

38 U.S.C. §§ 1681, 1801-27 .........- ee eee eee eee ees 5

Pik Cae Bl. - eer Pre rrr rrr re er er te 5

42 U.S.C. §§ 2000e ef seq. ....... cece cece ccevepeeees 22

Po > Tele)! ee mr re rr ee ree eee 5

50 U.S.C. App. §§ 459, 1884 ......... eee eeeeeeeeee 5

CoNSTITUTIONAL PROVISION:

Fourteenth Amendment ..........--+eeeeceeeeeeees 2

MISCELLANEOUS:

Minority Student, 1970 Toledo L. Rev. 501 ...... 6,7

Gellhorn, The Law School and the Negro, 1968 Duke

Bie SO Ho iow Oa cae addce ds eden Kes on 6 13, 17

(ROTO). ions ced cisigsn cc nsvcsevecercsoussvede soe 14

Lasswell & McDougal, Legal Education and Public

Policy: Professional Training in the Public In-

terest, 52 Yale L.J. 203 (1943). ......-..-+--++ 15

Index of Citations Continued

Page

Morris, Equal Protection, Affirmative Action and

Racial Preferences in Law School Admissions, 49

Wash. L. Rev. 1 (1973). ........--.- peeeeeevers 14

O’Neil, Preferential Admissions: Equalizing the Ac-

cess of Minority Groups to Higher Education, 80

Yale L.J. 699 (1971). .......2ccccccccvvecccces 6, 14

O’Neil, Preferential Admissions: Equalizing Access to

Legal Education, 1970 Toledo L. Rev. 281. ...... 12

Oppenheim, The Abdication of the Southern Bar in L.

Friedman, ed., Southern Justice 127 (1965)...... 14

Pinderhughes, Increasing Minority Group Students in

Law Schools: The Rationale and the Critical Is-

sues, 20 Buf. L. Rev. 447 (1971). ......-.--++-- 10, 16

Reynoso et al., La Raza, the Law, and the Law

Schools, 1970 Toledo L. Rev 809. .........+-+. 14, 17

Strickland, Redeeming Centuries of Dishonor: Legal

Education and the American Indian, 1970 Toledo

Ri BOO, WEN. cceesccvnsacivecivessecuessanea® 14,17

Twentieth Century Fund, Administration of Justice

in the South 3 (1967) .........-csceccccccseess 14

U.S. Bureau of the Census BLS Report No. 394, Series

P-23, No. 38, Table 67 .........-cccccsccsssccee 17

U.S. Bureau of the Census, Current Population Re-

ports, Series P-23, No. 46, Table 7 (1972) ....... 18

U.S. Bureau of the Census, 1970 Census of Popula-

tion, PC(2)1e, PC(2)1f, PC(2)1g .............. 17

1972 Proceedings of the Association of American Law

ee EPR ee ee sie bee ey YO pa, ee 12

IN THE

Supreme Court of the United States

OctroBeR TERM, 1973

No. 73-235

Marco DeF unis, ET AL., Petitioners,

v.

CHARLES ODEGAARD, ET AL., Respondents.

On Writ of Certiorari to the Supreme Court of the

State of Washington

BRIEF OF A GROUP OF LAW SCHOOL DEANS

AS AMICI CURIAE

INTEREST OF THE AMICI

The amici are deans of law schools located through-

out the United States who are concerned with the effect

a decision reversing the Supreme Court of Washington

would have on the admission policies and student com-

position of law schools throughout the nation. The

deans believe that law schools must retain the adminis-

trative flexibility and discretion to employ a wide

range of criteria, both subjective and objective, in

selecting those students who can best contribute to their

law school and to the legal profession. The deans

believe that it is equally imperative that law schools

continue to be permitted to consider the minority status

of an applicant as one criterion in the admissions

process so that they can effectively fulfill their obli-

gation to take affirmative steps to overcome the con-

tinuing effects of past discrimination in law schools

and in the legal profession.

2

CONSENT OF THE PARTIES

Marco DeF unis, et al., and Charles Odegaard, e¢ al.,

by their attorneys, have consented to the filing of this

brief. Their letters of consent are on file with the

Clerk of this Court.

QUESTION PRESENTED

Does a state supported school of law violate the

Equal Protection clauxe of the Fourteenth Amendment

when, in endeavoring to overcome the effects of past

discrimination, it considers an applicant’s racial or

ethnic background among the many factors it weighs

in determining whom to admit?

SUMMARY OF ARGUMENT

The University of Washington Law School, like

most law schools, employs a wide range of criteria in

selecting students for admission who can best con-

tribute to the law school and to the legal profession.

These Jaw schools have found that many of the goals

they hope to accomplish through their admission poli-

cies would go unrealized were they mechanically and

uncritically to accept candidates solely on the basis

of college grade averages and LSAT scores. Several

of the most important of these admission policies re-

quire the law schools to consider the race and ethnic

background of the applicant as one of the many factors

that are examined in reaching a decision. These poli-

cies include the desire to insure a representative

student body, the desire to help overcome the critical

shortage of minority group lawyers so that all groups

are represented in the profession so influential in both

public and private policy decisions in the United States,

and, most important of all, the desire to remedy the

continuing effects of racial and ethnic discrimination

3

which has for so long denied minority groups their

rightful place of equality in American society. Such

voluntary efforts to overcome our nation’s legacy of

slavery and discrimination are constitutionally permis-

sible and should be encouraged.

ARGUMENT

The Admissions Policy of the University of Washington

School of Law Represented the Exercise of Sound

Administrative Judgment.

I. DETERMINING WHOM TO ADMIT TO A LAW SCHOOL

CLASS INVOLVES WEIGHING A MYRIAD OF FAC-

TORS, BOTH SUBJECTIVE AND OBJECTIVE.

Choices among different people are generally dif-

ficult. Choosing among applicants for a law school

class is no exception. Indeed, in the case of the Uni-

versity of Washington Law School in its selection of

the class entering in the fall of 1971 the difficulties

were staggering. There were 1601 applications for

no more than 150 positions in the class. (Finding X,

A. 48)* Since most of the applicants were considered

capable of doing the work which is required in law

school, the school faced two difficult questions: What

criteria were to be used to choose among capable ap-

plicants? How can those criteria be applied within

the limits of the manpower available to review the

applications and the time available for this process?

The school found appropriate and workable answers

to both questions. In selecting applicants for ad-

mission the admissions committee followed this

standard:

‘In assessing applications, we began by trying to

identify applicants who had the potential for out-

1 References to material in the Single Appendix are denoted

herein as ‘‘A.’’

first year average (PFYA) was caleulated based on

college grades, the LSAT aptitude score, and the

LSAT writing score, and this figure was used to

separate the applications into three groups, which re-

ceived different levels of attention. Secondly, appli-

cations from minority group members were considered

separately. These steps were taken in order to es-

tablish general criteria applicable to all candidates

and to insure that special factors relevant to minority

candidates were taken into consideration. No appli-

cant was either accepted or rejected solely on the basis

of his or her PFYA. No applicant was either ac-

cepted or rejected solely on the basis of his or her race

or ethnic background. DeFunis v. Odegaard, 82

Wn. 2d at 17, 19, 20, 3940, 507 P. 2d at 1173, 1174,

1175, 1185-86.

The PFYA, based upon the LSAT score - 4 college

grades, was only one part of the decision-making

process. It stands ont because it is the only factor

which is quantifiable, but this should not lead to an

pEEEELS

i

|

:

been admitted in the past but had been unable to at-

tend the law school because of the draft. These ap-

plicants were admitted automatically. (A. 31) In

some cases these veterans could not meet current

standards. Though one could argue that

such a veteran deprives a better qualified applicant of

and of national policy make this preference unobjec-

tionable. *

Some state universities and law schools give pref-

erence to residents of the state, though no claim is

made that residents of the particular state are better

students. In fact, petitioner argued unsuccessfully

below that the University of Washington was required

* Preference for veterans is a common feature of many of our

laws. See, ¢9.,5 U.S.C. §§ 3309, 3312; 38 U.S.C. §§ 1681, 1801-27;

42 U.S.C. § 1477; 43 U.S.C. § 186; 50 UBC. App. §§ 459, 1884.

to give such a preference under state law. Other

schools give preference to nonresidents.

Preference is sometimes given to children of alumni,

even though at most schools this would work to the

disadvantage of minorities, as does a preference for

those applicants who have famous or parents.

Cf. Guinn v. United States, 238 U.S. 347 (1915);

Meredith v. Fair, 298 F. 2d 696 (C.A. 5, 1962). See

O’Neil, Preferential Admissions: Equalizing the Ac-

cess of Minority Groups to Higher Education, 80 Yaz

L. J. 699, 703-05 (1971).

The LSAT score is more closely related to academic

competence, but it is both an attractive and a

criterion. It is attractive because it is the sole com-

7

students are considered. For example, if one is com-

paring a student with a 600 to one with a 500 one must

realize that there are many factors which might lead

the 500 student to perform as well as the 600 student.

Motivation, financial problems, family problems, self-

confidence, ability to get along with other students

and with members of the faculty, interest in the

courses, the possibility of illness—these are not meas-

ured on the LSAT. See Consalus, supra at 513.

In short, the selection of students for admission to

law school involves the exercise of informed judgment.

A mechanistic ranking of candidates is not necessarily

in the interest of the law school, the legal profession

or society. Here the University of Washington

weighed a multiplicity of factors, and no one factor

was the sole basis for granting or denying admission

to the law school. Accordingly, courts should be very

reluctant to interfere with the difficult exercise of dis-

cretion which is required by the law school admissions

process. A law school can be compared to a school

board trying to devise an educationally sound remedy

for racial imbalance and the problems resulting from

unequal education:

“The School Board, in the operation of the public

schools, acts in much the same manner as an ad-

exercising its accumulated

Accord, Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971); Wanner v. County

School Board of Arlington County, Virginia, 357 F.2d

452 (C.A. 4, 1966).

IL THE RACIAL AND ETHNIC BACKGROUND OF APPLI-

CANTS IS AN APPROPRIATE FACTOR TO CONSIDER

IN DETERMINING ADMISSIONS TO LAW SCHOOL.

We contend that race and ethnic background is an

appropriate factor to consider in determining who is

or is not admitted to a law school. The consideration

given to race and ethnic background is included as part

of the admission formula not because it per se is a

test of the qualifications of an applicant to law school,

but because race and ethnic background represents a

congery of factors—discussed below—that a law

school is justified in taking into account.* Since these

interrelated factors, unlike race and ethnicity, are not

immutable, we can expect them to disappear eventu-

ally. At such time, the consideration of race and

ethnicity qua race and ethnicity no longer will be ap-

propriate.’ But ‘(t]he promise of even handed jus-

* Cf. Springfield School Committee v. Barksdale, 348 F.2d 261,

266 (C.A. 1, 1965) : ‘‘The defendants’ proposed action [eliminat-

ing racial concentrations in schools] does not concern race except

insofar as race correlates with proven deprivation of educational

opportunity .... It would seem no more unconstitutional to

take into account plaintiffs’ special characteristics end circum-

stances that have been found to be occasioned by their color than

*For example although Asian-Americans, Jewish-Americans,

and Italian-Americans all have been subject to discrimination,

this discrimination and its effects appear not to present a barrier

to their admission to the University of Washington Law School.

ee wert ae caceeensiemeemeseneneemeteenseeemmenneeensenentaeieeateameeeneneaiennnion

tice in the future does not bind our hands in undoing

past injustices.’’ Umnited States v. Louisiana, 252 F.

Supp. 353, 396 (E. D. La. 1963), aff’d, 380 U.S. 145

(1965).

It is unrealistic to suggest that at this time color

blindness is possible in the evaluation of applications

for law school admission. The history of discrimi-

nation in the United States based on color, culture,

and language is too long, and the continuing effect of

that discrimination is too clear in the low educational

and economic status of victimized minority groups to

allow color blindness. ‘‘After centuries of viewing

through colored lenses, eyes do not adjust when the

lenses are removed.”’ Associated General Contractors

of Massachusetts, Inc. v. Altshuler, 6 EPD 18993

(C.A. 1, 1973). See also, United States v. Jefferson

County Board of Education, 372 F. 2d 836, 876 (C. A.

5, 1966), cert. denied sub nom. Board of Education of

Bessemer v. United States, 389 U.S. 840 (1967).

An admissions committee would face an intractable

task in evaluating the potential of a minority appli-

cant if it could not consider the obstacles which the

applicant has had to overcome in his or her academic

and personal development. How can an admissions

committee evaluate in a color blind way the handicap

of a segregated elementary or secondary education,

how can it evaluate the effect on an applicant of being

placed in a class for the mentally retarded in elemen-

tary school merely because the student’s

language was not English, or how can it evaluate the

effect of attending boarding school hundreds of miles

from home where the student’s language and culture

were systematically denied? These judgments can

not be made without considering the status of the ap-

=—-

10

as a member of a victimized minority. As the

Court of Appeals for the Fifth Circuit noted:

‘How then is this constitutional imperative to be

achieved in a society that still bears the ugly

sears of decades of racial segregation with all of

its discriminations? For it is in this social struc-

ture that the problem arises. And it is in this

social structure—not that of the hoped for idyllic

state when the last vestige of this invidious dis-

tinction has gone away—that the constitutional

ideal must be made to work.’’ Brooks v. Beto,

366 F.2d 1, 22-23 (C.A. 5, 1966). °

A. Purely mechanical criteria are an inadequate basis for

determining the composition of a law school class.

While there are problems present in the interpreta-

tion of the grades and the LSAT scores of any appli-

cant, with minority applicants these problems are mul-

tiplied. With white applicants law schools have had

years of experience in evaluating the significance of

LSAT scores. With minority applicants there is little

experience either at the University of Washington or

at other law schools. The problems peculiarly related

to race with which minorities must cope at all levels

of education can affect college grade averages and re-

sults on standardized tests.

The law school had reason to believe that a low score

by a minority applicant on the LSAT might not be

a bar to acceptable performance in law school. Stu-

dents who must cope with racially related disadvan-

tages throughout their educational careers cannot be

expected to perform as well on the LSAT as other

students but still might have the underlying ability

* See Pinderhughes, Increasing Minority Group Students in Law

Schools: The Rationale and the Critical Issues, 20 Bur. L. Rev.

447, 454 (1971).

11

to succeed in law school. Even with lower scores or

grades, the minority students accepted at the Wash-

ington Law School were found to be qualified. Es-

pecially if the student attends a summer session prior

to law school to improve his basic skills and to famil-

iarize himself with the study of law and if the faculty

is willing to give extra attention to the needs of minor-

ity students, there is a good likelihood that such stu-

dents will succeed in law school despite relatively low

PFYAs. Thus to require the school to consider white

and minority applicants together on the basis of their

PFYAs is to require it to do something which would

prevent its taking account of other highly legitimate

considerations discussed herein.

The LSAT is designed to predict first year averages.

More important ultimately, however, is the capability

of the law student at the end of his law school career.

For whites, first year grades generally are a good in-

dicator of how well the student will do in the second

and third years. For minorities they may be a less

accurate predictor. Adjusting socially and academic-

ally to the demands of law school can be the primary

activity of the first year. Overcoming educational de-

ficiencies and gaining needed self-confidence takes

B. The desirability of a heterogeneous student body is an

appropriate element of a law school’s admission policy.

The University of Washington had sound educa-

tional reasons for wanting a multi-racial student

body.’ Many of the most serious legal and public pol-

* Until the last few years the number of minority law students

in the entire country as well as at the University of Washington

was extremely low. In the 1964-65 school year there were ap-

proximately 700 black law students, including 267 in predom-

12

icy issues that the lawyer will face in his career are

related to the issues of race and poverty. All students

will gain from having students of different racial and

ethnic backgrounds participate in in-class and out-of-

class discussions of these issues and from learning to

live in a multi-racial community.*

Success in law school cannot be viewed as an end

in itself. A law school is a professional school, train-

ing men and women to go out into the world and act

as lawyers. The wisdom of Sweatt v. Painter, 339

US. 629, 634 (1950), is as relevant today as it was

a generation ago:

“TA]lthough the law is a highly learned pro-

fession, we are well aware that it is an intensely

practical one. The law school, the proving ground

for legal learning and practice, cannot be effective

inantly black schools in the South. This represents only 1.3

percent of the total law school enrollment, barely enough for

blacks to maintain their proportion of the legal profession. O’Neil,

Preferential Admissions: Equalizing Access to Legal Education,

1970 Totzpo L. Rev. 281, 300. In the 1967-68 school year, after

many law schools had begun to recruit minority students, there

were only 180 Mexican Americans and 32 American Indians en-

rolled in law school. Id. at 301 n. 58. Enrollment figures for

subsequent years are as follows: 1969-70: black, 2128; Mexican

American, 412; American Indian, 72. 1971-72: black, 3732;

Mexican American, 881; American Indian, 140. 1971 Survey of

Minority Group Students in Legal Education, quoted in 1 1972

PROCEEDINGS OF THE ASSOCIATION OF AMERICAN Law Scuoors 74.

* See Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. at 16: ‘‘School authorities are traditionally charged with

broad power to formulate and implement educational policy and

might well conclude, for example, that in order to prepare

students to live in a pluralistic society each school should have a

prescribed ratio of Negro to white students reflecting the propor-

tion for the district as a whole. To do this as an educational

policy is within the broad discretionary powers of school authori-

We eur

Se

13

in isolation from the individuals and institutions

with which the law interacts. Few students and

no one who has practiced law would choose to

study in an academic vacuum, removed from the

interplay of ideas and the exchange of views with

which the law is concerned.’’

The great increase in the number of qualified appli-

eants to law school,’ coupled with a mechanical use

of the PFYA, threatened to make the University of

Washington Law School into just such an ‘‘academic

vacuum.”’

C. The nature of legal services required by the public is an

appropriate consideration for a law school in constituting

its student body.

The greatest shortage of legal services is in minor-

ity communities—ghettos, barrios, reservations. Mem-

bers of these communities have been denied an ade-

quate number of qualified lawyers and judges who

understand from firsthand experience the seriousness

of the many problems facing these communities and

the urgent need to find both short-range and long-

range solutions. While some white lawyers will prac-

tice in these communities and be as effective as a mi-

nority lawyer, minority lawyers are more likely to

serve minority communities and in some instances will

be able to provide better service:° They have greater

° In the past three years the number of applications had gone

from 704 to 1601. DeFunis vy. Odegaard, 82 Wn. 2d at 15, 507

P.2d at 1172-73.

°Few of the nation’s lawyers are minority group members.

In 1966 only about one percent was black. Gellhorn, The Law

School and the Negro, 1968 Duke L.J. 1068, 1073. Even if the

size of the legal profession could be kept constant, an additional

30,000 black attorneys would need to be trained before blacks

would achieve parity in the legal profession. Gellhorn, id. at

14

familiarity with the community and its problems, they

are able to communicate more effectively with the

residents and gain their trust, and—in the case of the

Spanish-speaking community—their ability to speak

the same language is indispensable." In some in-

stances, the interests of a minority group and those of

whites will be adverse. In such a case the minority

group might be better served by a lawyer who shared

the same interests.

This is not meant to imply that minority law stu-

dents should be only trained to and should be ex-

1073. Nationwide figures for Mexican Americans do not appear

to be available. Data from specific areas are suggestive of the

problem, however. In Denver, for example, about nine percent

of the population is Mexican American, yet only 10 of the city’s

2,000 attorneys (one half of one percent) have Spanish surnames.

O’Neil, 80 Yate LJ. at 727. In 1968, less than one percent of

the attorneys in California had a Spanish surname, although 12

percent of the state’s population is of Spanish surname. Reynoso

et al., La Raza, the Law, and the Law Schools, 1970 TotEpo L. Rev.

809, 816. In 1968 there were almost no Indian lawyers in the

country. See discussion in Strickland, Redeeming Centuries of

Dishonor :-Legal Education and the American Indian, 1970 ToLEpo

L. Rev. 847, 861-66. With specific reference to the state of Wash-

ington, in 1970, of the 4,550 active lawyers, only 20 were blacks

(three of whom were judges), five were part or full-blooded Amer-

ican Indians and none was Mexican American. Thus, there was

one Anglo lawyer for approximately every 720 whites, one black

lawyer for approximately every 4,195 blacks, one American Indian

lawyer for approximately every 6,677 Indians and not one Mex-

ican American lawyer for the 70,734 Mexican Americans in th

state. Morris, Equal Protection, Affirmative Action and Racial

Preferences in Law Admissions, 49 Wasx. L. Rev. 1, 38 (1973).

1 Cf. Graglia, Special Admission of the ‘‘Culturally Deprived”’

to Law School, 119 U. Pa. L. Rev. 351, 354 (1970), with Twen-

TIETH CENTURY FUND, ADMINISTRATION OF JUSTICE IN THE SOUTH

3 (1967) and Oppenheim, The Abdication of the Southern Bar in

L. FRIEDMAN, ED., SOUTHERN JusTICE 127 (1965). See Sobol v.

Perez, 289 F. Supp. 392 (E.D. La. 1968).

15

pected to serve minority communities. On the con-

trary, they should receive the same training as every

other law student and should be free to practice what-

ever kind of law in whichever community they choose.”

In fact, there has been an increasing realization by

law firms, government agencies and corporations that

minority lawyers have a vital role to play in fulfilling

the responsibilities of the legal profession, and career

opportunities for minority lawyers outside the mi-

nority community are bright.

D. It is appropriate for a law school’s admissions policy to be

sensitive to the pivotal role played by the legal profession

in our national life.

Law firms have a leading role in our society, and

lawyers are well represented in public office at all levels

in the local, state, and federal governments, and in

private corporations. We are ‘‘a nation that professes

deep regard for the dignity of man and that in prac-

tice relies to an extraordinary degree upon the advice

of professional lawyers in the formation and execu-

tion of policy.’’ Lasswell & McDougal, Legal Educa-

tion and Public Policy: Professional Training in the

Public Interest, 52 Yate L.J. 203, 291 (1943). The

insight and particular sensitivity which minority

group lawyers and judges can bring to the law as an

institution has been lacking. Thus, if a racial or eth-

nic group is to share in the power, responsibility, and

benefits of society it must be well represented among

the legal profession. ,

The legal profession, moreover, has a special re-

sponsibility to set an example for the rest of the na-

12 See Bell, Black Students in White Law Schools: The Ordeal

and the Opportunity, 1970 Totzpo L. Rev. 539, 551-58.

16

tion for providing equal opportunity and overcoming

the effects of past discrimination, for lawyers have

a special duty to uphold the Constitution and the legal

system.

Minority lawyers also have an important role as

citizens in the minority community. Lawyers often

have leadership roles, and they provide an example to

young people, showing them that it is possible to have

a professional career despite their racial or ethnic

background.

*‘The most striking factors underlying motivation

to seek entry into law school may be related to

close personal association with a lawyer as a rela-

tive, or a friend, and to encouragement from fam-

ily, friends, or counsellors. These factors are too

often missing in law-deprived communities where

there is a lack of exposure to opportunities in

law, and inadequate information and counselling

at all school levels.’’ Pinderhughes, supra at 454.

E. It is appropriate for the admissions policy of a public law

schogl to be sensitive to the need to overcome the effects

of past and present illegal discrimination suffered by

minority group members.

1. The paucity of minority lawyers is the zesult of discrimination.

The factors which have led to the small number of

minority lawyers are many. They are ali the result—

direct or indirect—of discrimination and would con-

tinue unabated even with ‘‘color blind’’ treatment.

Accordingly, a significant increase in the number of

minority lawyers cannot be expected without color

conscious efforts.

While not the universal pattern, until recently many

law schools refused to admit blacks, and many blacks

who were able to attend law school could only do so at

17

all Negro institutions. Cf. Sweatt v. Painter, supra. See

Gellhorn, supra at 1069-70. As late as 1960 the Duke

University School of Law would not admit blacks,

and in 1962 the University of Richmond refused to ad-

mit two blacks because of their race. Gellhorn, id. at

1070 n. 12. If a black did manage to graduate from law

school he faced discrimination from bar associations,

law firms, and government agencies. See Gellhorn, id.

at 1070, 1093. Thus blacks were discouraged from going

to law school by their prospects after graduation, were

denied admission to law school if they nevertheless

applied, and were less likely to be able to practice law

if they graduated.”

Secondly, discrimination in elementary and sec-

ondary education throughout the country makes it

less likely that minorities will attend college and obtain

degrees than whites.** Since to be admitted to almost

all law schools one must have an undergraduate de-

gree, the pool of potential minority applicants to law

school is severely restricted compared to that of

whites. * |

%*For information concerning the participation of Mexican

Americans and American Indians in the legal profession see

Reynoso, et al., supra, and Strickland, supra.

7 Nearly twenty year ago, in Brown v. Board of Education, 347

U.S. 483 (1954), this Court noted that school segregation ‘‘has

long been a nationwide problem, not merely one of sectional con-

cern.’’ Id. at 491 n. 6. It continues to be a nationwide problem.

See, e.g., Keyes v. School District No. 1, Denver, Colorado, 413

U.S. 189 (1978). :

For persons in the 25 to 34 year old bracket in 1970, 16.6

percent of whites had graduated from college, while only 6.1 percent

of blacks, 5.3 percent of persons of Spanish heritage, 1.1 percent

of Indians, and 3.6 percent of Philippine Americans. Bureau oF

THE Census BLS Reporr No. 394, Szrms P-23 No. 38, Table 67 ;

U. 8S. Bureau or tHe Census, 1970 Census or PopuLaTion, PC

(2)le, Table 6, PC(2)1f, Table 5, PC(2)1g, Table 35.

anes

z

ns bi

itll

i

+

S

5

ik

A

3

24

é

ili

ARES Hale 1

= afdle

Board of Arlington

454. Where courts have

for de facto segregation

6; North Carolina State

Swann, 402 U.S. 43, 45 (1971).

at 1

, Virginia, 357 F.2d at

declined to order a remedy

they

He

if

|

:

i

Accord, Wanner v. County School

Board of Education v.

Hie

Pe cli

permissible. 402 U.S.

C

States, 416 F.2d 980, 991 (C.A. 5, 1969), cert. denied,

397 U.8. 919 (1970). See also Contractors Associa-

at that time discrimination in the private housing

market was not considered illegal.

The situation of the law school is similar to that of

the school boards, the employers or unions, and the

redevelopment agency.

The law school can be viewed as the last step in

it is

US. 112, 133, 146-47, 216-17, 282-84 (1970); Gaston

County v. United States, 395 U.S. 285 (1969).

Although there has been no allegation that the Uni-

versity of Washington Law School or the state of

school in prior years might reasonably have led the

school to be concerned that its admissions policies had

in fact had a discriminatory effect.

In short, if courte have required governmental

agencies to remedy discrimination which they did not

cause, Norwalk CORE, supra, surely this Court should

allow the law school to remedy such discrimination.

3. Remedial action may impinge on the expectations of others.

Both governmental and private action in our so-

ciety typically disadvantages some people—either di-

rectly or incidentally—as it benefits others. This is as

true for actions taken to remedy racial inequalities as

it is in other areas.

In employment cases where affirmative action plans

are ordered or upheld there is generally some harm to

potential white employees. As Judge Marvin

Frankel said in discussing the remedies of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq.:

‘TT]t should be recognized . . . that the remedies

Con: ordered are not required to be utterly

i The court knows at least some of the

things the whole world knows. We are aware

that there is unemployment. We are even more

keenly aware that this case is launched by statu-

tory commands, rooted in deep constitutional

purposes, to attack the scourge of racial discrimi-

nation in employment.’’ Umited States v. Wood,

Wire and Metal Lathers International Union,

Local Union 46, 341 F. Supp. 694, 699 (S.D.N.Y.

1972), aff’d., 471 F.2d 408 (C.A. 2, 1973), cert.

denied, 412 U.S. 939 (1973).

In Porcelli v. Titus, supra, individual whites did not

receive the promotions which they thought they had

every reason to expect. While in most instances

there will be no identifiable whites who are deprived

of a job or a promotion, there will be a more or less

readily identifiable class of whites potentially eligible

for work or promotion. See Carter v. Gallagher, 452

F. 2d 315, modified en banc, 452 F.2d 327 (C.A. 8,

1972), cert. denied, 406 U.S. 950 (1972) ; Contractors

Association of Eastern Pennsylvania v. Secretary of

Labor, supra; United States v. Bethlehem Steel Corpo-

ration, 446 F. 2d 652, 663 (C.A. 2, 1971); Associated

General Contractors of Massachusetts, Inc. v. Alt-

shuler, supra.

Likewise the fact that whites (or blacks) might be

inconvenienced by steps taken to dismantle a dual

school system is not considered an argument with any

weight.

“The remedy for such segregation may be ad-

ministratively awkward, inconvenient, and even

bizaare in some situations and may im -

dens on some; but all awkwardness and en-

US. at 28.

In this case, as in cases remedying inequality in

employment and education, the remedial action had

an effect on who received the benefits of legal training

by the University of Washington Law School. The

remedy here was designed to eradicate the effects of

past discrimination. To the extent that there were

those whose expectations rested on the continuation of

a system which perpetuated discrimination, they were

likely to suffer some disappointment. But this dis-

appointment was mild in comparison to what courts

have allowed.”

18 Petitioner is not necessarily among those damaged by the

school’s action. Even if none of the 36 minority students had been

admitted, his position on the waiting list would not have given

him a position in the class. On the other hand, if the whole ad-

missions process were to be done over using new criteria or pro-

cedures, there is no guarantee that he would be admitted.

CONCLUSION

For all these reasons the University of Washington

Law School exercised proper discretion in admitting

students to the class entering in the fall of 1971, and

the judgment of the Washington Supreme Court

affirmed.

Center for Civil Rights

University of Notre Dame

Notre Dame, Indiana 46556

Davi H. Hunter

Washington, D.C.

Attorneys for Amici