Amicus Curiae Brief — DeFunis v. Odegaard

TABLE OF CONTENTS

Page

Nation for: Leave to File iii. csnescdae ito’ ede 2

Opltet Beles ei isis See AIN ROO ROR 4

ee OR EE oe Oy Be Smee eRe ere 5

Cesta Peanatiet iis. HWA Ce euter seals FOR 5

Seahanant of he Cane 556. TAR iN 5

Summary of the Argument..................0.0000008 7

RONG IE ONO SCN BOR EE 10

THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION DOES NOT FORBID COM.-

PENSATORY PROGRAMS THAT AID IN THE ACCESS OF

MINORITY GROUPS TO HIGH EDUCATION AND

PROFESSIONAL CAREERS WHERE A COMPELLING

STATE NEED IS DEMONSTRATED .....................8

A.

1. Pre-law preparation for minority students ............... -10

2. Historical state commitment to legal education for black

GOIN so oincsocirneebighistisads adie’ aieleeuaed i2

3. Unequal access to job opportunities for black lawyers ..... 15

B. Utilization of compensatory programs are permissible when

related to a valid state interest ................c0cccceeeuees 16

1. The classification in Defunis is not invidious

2. There is a compelling state interest

3. The state has adopted a rational means of implementation

4. Necessity for and rationale behind racial classification.

C. Whereas this national issue evolved from a history of state

action, governments have accepted their responsibility to act

SI oo er TES ee ?

TABLE OF AUTHORITIES

CASES PAGE

Associated General Contractors of Massachusetts, Inc. 8. 17, 16,

v. Altshuler, 73-1250, (ist Cir. Nov. 30, 1973)...... 19, 21, 22. 26

Bowman v. County School Board, 362 F.24 326 (4th Cir.

nie tg ng si sdasaahadetecsiccoess ay |

Brooks v. Beto, 336 F.24 1 (Sth Cir. 1966)... 2. me 17,19

Brown v. Board of Education, 347 U.S. 463(1954) ...... 9, 10, %

Contractors Association of Eastern Pennsylvania v.

of Labor, 311 F. 1002(E.D. Pa. 1970) ....... 19

EL SS A OREEED 5 ced encedes sds ccccccccees 10

v. Odegaard, 62 Wash. 24 11, 507 P.24 1169(1973) ..14, 17

Evers v. Jackson Separate School District, 23, %

EE ME cccbeccbencdepposccccccceccccs 22

Plorida ex rel Hawkins v. Board of Control of Florida,

Ji neddiédsodusocupeeaeseniccccces 9, 13

Florida ex rel Hawkins v. Board of Control, 93 So.24

i LRG cals cSivcdacendbsupéscesoccoccccces 9,13

Green v. County School Board, 391 U.S. 430(1968)............. 21

Griffin v. County School Board of Prince Edward County,

INL. se obbccdeshcoe dodetceccceccccecss 10

] Power Co., 401 U.S. 424 (1971) . 2.0.6 eee om iS

Heart of Motel, Inc. v. United States, 379 U.S.

vhs aceite whhs boSbpeeece 600s nbecccececcccce 2»

Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967)......... 15, 16

Lockett v. Board of Education of Muskogee County School

District, 342 F.24 225 (Sth Cir. 1965) .. «2.60 eeee 23

McLaughlin v. Florida, 379 U.S. 184 (1964)... 00.0 eee eee 19

Missouri ex rel Gaines v. Canada, 305 U.S. 337(1958) ........ .. 9

Norwalk CORE v. Norwalk Board of Education, 296 F. Supp.

I NS RE TIS FELT PPOTEEETELT EEE 22

Norwalk CORE v. Norwalk Redevelopmen' Agency, 395 F.2d

SOE dba bonccednn debs cbevddseecocccccos 16,19

Offerman +. Nitkowski, 246 F. 29(W.D.NLY. 1965) ..... 18

Otero v. New York City Housing , A P26

iD i iidsel diem dabsebeodseoesoccces 16,19

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

gies Shemeen eke Lee 6 tle obhasode poops dee 17, 22

ee eee eee en

oP eee eee eee eee eee eee ere err errrre

teats. Board of Regents of Oklahoma, 332 U.S. 631 (1948). ..4

Springfield Community v. Barksdale, 348 F.2d 261

Chat Cle, 19GB ooo ccccccccccccccscccccccccccescesoscess 21

Swann vy. Charlotte-Mecklenburg Board of Education,

4B UG. UOT) . oc cccccccccccccccccccces 9, 10, 17, 16, 2

Sweatt v. Painter, 399 U.S. 629 (1950)... ee ene eer enene

United States v. Board of Public Instruction of Polk County,

395 F.2d 66 (Sth Cir. 1968) ewww nw nnnnne 16

United States v. Guest, 363 U.S. 745 (1966) ... «cence eens 20

United States v. Jefferson County Board of Education, 372

F246 B96 (Sthe Cle. 1966) .. 2 ccc ccccccccccccccccccccseeses 16

United States v. Parish School Board, 291 F. Supp.

O64 GRD. Ba BOBTD ncn cccccevccccccccconsopevedeceocos 16

Wanner v. School Board of Arlington County, 357 F.2d

GREG, BOGE. 2 oc cccccccccccccccccsecesossesccnses 16

Constitutional Provision

United States Constitution Amendment Fourteen............. 4

United States Statute

28 United States Code, Section 125713)... +++ ee eereereeeree 4

M iecellaneous:

Atwood, James and Long, Survey of Black Law Student

Enrollment, 16 Student Lawyer 18(1971)... 0.0.00. 060000. 13, 15

Bell, In Defense of Minority ee Oa

to Professor Gaglia, 119 U. oUPaL Rov. DIA GGID 0 oc ccdidcases

Bell, School Strategies for the 1970's: New Phases in

for Quality Schools, (1970) Wise. L. Rev.

Tree eee ee ee ee eee eee eee eee eee

B. Bittker, The Case for Black Reparations (1973) .............

M. Davie, Negroes in American Society (1949)................

L. Ehrman, G. Omen and E. Caspari, Genetics, Environment

and Behavior: Implications for Educational Policy (1972) ....... 12

Franklin, History of Racial Segregation in the United States, 34

Annals Amer. Aca. of Pol. and Soc. Sci. (Mar. 1956)........... 4

Gelthorn, The Law Schools and the Negro (1968)

Set BEET As le cons ahabacdcooseoanaedses ann 7, 11, 13, 17

J. Good, A History of American Education (1956) ............... 10

Haynes, The Federal Government Worker, 3 Howard

Univ. Studies in mb adedeghbarcesesvontssé 9

Henderson, NewRoles for the Legal Profession in Race, Change

and Urban Society 463 (P. Orleans and W. Ellis ed. 1971) ...... 9

Joint Economic Commission, 1964 Joint Eesneute Report No.

931, 88th Cong., 2d Sess. 61(1965) . 2.2.2.0... ccc cceeeecees 16

J. Kozol, Death at an Early Age (1967) ................... 10, 11

Leflar, Legal Education: Desegregation in Law Schools, 43

A.B.A. Jo. 145 (1957) 13

Legal Education Advance Planning, An Introductory a of

Minority Law Student Development Potentials (Dec. 1971) ... 9, 1

L. Litwaock, North of Slavery (1961)... 00... eee 9

Morris, Equal Protection, Affirmative Action and Racial

Preferences in Law Admissions DeFunis v. Odegaard, 49 Wash.

ST PPE Wc doe be Se sUks JEbe cc cdscecvoccécebcstects 7,4

OPO eee

Note, The Negro Lawyer in Virginia: A Survey, 51 Va. L. Rev.

SE EE Sus Ob bee CEN eee is conetes bies éseécwes bbesbese 9

O'Neil, Preferential Admissions: Equalizing the Access of

Minority Groups to Higher Education, 80 Yale L. Jo. 699(1971). 12, 21, 23

Schrader and Pitcher, Predicting Law School Grades for Black

American Law Students, LSAC Annual Report (1973) ........-------- Dw

U.S. Department of Commerce Bureau of Census, General

Population, Characteristics of the State of Washington Tables

SPD GO ogc souk by coebeiseovss taste ens cinco eke 14

U.S. Riot Commission, Report of The National Advisory

Commission on Civil Disorders (1968)....................... 9, 16, 20

pA pan eat cet sitscmss 5 aay tenia hep nagta ad 9

BIS] « occvccddtscccrdevossdeb scons bedeeles sub Uda bcencceaeeenes

Wright, The Role of the Supreme Court in a Democratic

——— siltemenrali: apap lect ane siithesnetscee sins

{ D cvcdccccccccedsosgccssodeberacdissséaboahbhcobipsusasnvin

es aR ENTER OT TTT TE 27

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.73-235

Marco DeFunis and Betty DeFunis, his wife

Marco DeFunis, Jr. and Lucia DeFunis, his wife

Petitioners

v

Charles Odegaard, President of the University of Washington;

Richard L. Roddis, Dean of the University of Washington Law

School; Richard Kummert, Robert T. Hunt and Richard L.

Roddis, Admissions Committee of the University of W.

Law School; Harold S. Shefelman, James R. Ellis, R. Mort

Frayn, Robert L. Flennaugh, Jack G. Newpert, Robert F. Philip

and George B. Powell, Regents of the University of Washington;

Respondents

On Writ of Certiorari to the Supreme Court

of the State of Washington

nl

BRIEF OF THE AMERICAN BAR ASSOCIATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

ES

NEY ES RL OT IT I TE a TEE a a aaa

MOTION FOR LEAVE TO FILE

respondent has consented to allowing the American Bar

Association to file an Amicus Curiae brief in the instant case.

It is respectfully sequested that this court grant this motion to

allow the American Bar Association to submit its brief amicus

curiae in support of the respondent Charles Odegaard et al. The

American Bar Association (ABA) is an unincorporated,

voluntary association the members of which are members of the

bar of the states, territories, and possessions of the United States.

It is the largest organization of the legal profession in the United

States, having over 170,000 members. Its purposes include the

maintenance of representative government, the promotion of the

administration of justice, the application of the knowledge and

experience of the profession to the promotion of the public good,

and the ion of activities of bar organizations in the

country in the interests of the profession and the public.

In 1967, the Association endorsed in principle the develop-

ment of a national program to encourage and assist qualified but

underprivileged persons from minority groups, such as Negro,

Indian, and Spanish speaking citizens, to enter law school and

the legal profession. This action was taken because, although

the above minority groups comprise a significant part of our

population, they comprise only about 1 per cent to 2 per cent of

the legal profession. The Association recognized that lawyers

have traditionally played a leading role in the political,

economic, and social development of our country and that more

lawyers from minority groups are needed to enlarge the

availability of legal services to members of those groups and to

guide and assist those groups in becoming more a part of

American life and society. Without an affirmative program of

concern and assistance, they are not in the forseeable future

likely to achieve greater representation in the profession.

To that end, the Association became one of the sponsors and

constituent members of the Council on Legal Education Op-

portunity. The American Bar Endowment is one of the

organizations which has provided substantial funds to CLEO to

make its purpose a reality. The Association itself has con-

siderable expense in administering CLEO funds and assisting in

its programs and funding.

ee ee ee ac

3

Three of the twenty-two sections of the Association have given

their attention to the trial court’s decision in the DeFunis case

and have asked the Association to participate in an amicus brief

on appeal, in support of the position of the University of

Washington. One, the Section on Legal Education and Ad-

missions to the Bar, is the part of the Association most directly

interested in the field of legal education. Another, the Section on

Individual Rights and Responsibilities, has expressed the view

that the position of special concern in the admission of

heretofore underrepresented minorities, such as that espoused by

CLEO, is fully defensible and wholly necessary in the context of

American legal education.

Third, the Association’s Law Student Division expressly urged

participation in this litigation in support of the University of

Washington’s position. The Law Student Division consists of

some 16,000 dues-paying law students attending law schools

throughout the country, including 120 within the State of

Washington.

As recently as February 7, 1972, the Association’s House of

Delegates reaffirmed its previous expressions by adopting the

following resolution:

Resolved, that the American Bar Association encourages

programs at law schools having as their purpose the admission to

law school and ultimately to the legal profession of greater

numbers of interested but disadvantaged members of minority

groups who are capable of successful completion of law school.

Further Resolved that the Association encourages the Law

Student Division of the Association, as well as law student bar

associations throughout the nation, to work with and assist the

administration and faculties of law schools to this end.

For the foregoing reasons, the Association believes that

programs encompassed by the above resolution, of which that in

issue in this appeal is but one of many, are in the best interests of

the legal profession as well as our nation. It believes that the

Constitution permits such programs. If, as the trial court has

held, the Constitution does not, the basis for the Association’s

encouragement of and participation in such programs will

seriously be jeopardized, if not nullified altogether.

OPINION BELOW

The opinion of the Supreme Court of Washington is reported

in 82 Wash. 2d 11; S07 P.2d 1169 (1973).

JURISDICTION

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

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

QUESTION PRESENTED

Whether a state can take affirmative steps to remedy past

discriminatory practices against black people that have resulted

in an imbalance in the legal profession, an imbalance demon-

strated by the fact that black American comprise only one per

cent of the practicing Bar.

STATEMENT OF THE CASE

Petitioners in the instant case are, Marco DeFunis and his

wife, Betty DeFunis, and their son, Marco DeFunis, Jr. and his

wife, Lucia DeFunis, residents of Seattle, Washington.

Marco DeFunis, Jr. applied for admission to the University of

Washington School of Law after his graduation from the

University Washington in 1970. He was not accepted, but was

placed on a waiting list. On August 2, 1971 he received his

second notice of denial.

Plaintiff brought suit against the University of Washington, an

agency of the State of Washington, the President of the

University, Charles Odegaard and members of the Board of

Regents, challenging the constitutionality of the admissions

procedure employed by the School of Law.

The admissions committee primarily utilized a formula to

derive the Predicted First Year Average. This formula is based

upon the Law School Admissions Test score and undergraduate

gtade point average. Certain other applicants possessing special

characteristics were admitted not strictly based upon their

PFYA.

Such special characteristics included military applicants

(those deferred from attending law school because of induction

into the armed services), students engaged in an outstanding

number and quality of extra-curricular activities, students who

are members of minority groups, and students who attended

schools of exceptionally high academic standards.

The plaintiff, had a PFYA of 76.23 (GPA--3.6, and average

LSAT score 582). Seventy-four of the 155 applicants accepted

for the Fall of 1971 had PFYA’s lower than plaintiffs. Thirty-six

of these were representatives of minority groups.

In selecting applicants the admissions committee did study

and consider all qualities of the individual applicants to

determine not only the potential ability to perform in law school

but also, the ability to significantly contribute to the community

and legal profession as a whole.

One of the several factors given consideration in evaluating the

potential of the applicant was the racial characteristic of the

student. The Superior Court upheld the plaintiff's claim of

racial discrimination.

While the university enrolled plaintiff in compliance with the

Superior Court order, it appealed the trial court’s decision to the

Supreme Court of Washington.

6

On March 8, 1973, that court in a 6-2 decision reversed the

Superior Court ruling and upheld the right of the University to

consider race as a factor in selecting students for its law school.

On June 5, 1973, enforcement of the judgment of the Supreme

Court of Washington was stayed by Justice Douglas pending the

disposition of this petition for a writ of certiorari in this court.

On November 19, 1973, this court agreed to review the case.

—

SUMMARY OF ARGUMENT

Affirmative action are valid where they are used to

redress the negative of past racial discrimination and to

correct present racial imbalance. Morris, Equal Protection,

DeFunis v. Odegaard, 49 Wash. L. Rev. 1 (1973).

The argument for affirmative action programs is especially

compelling in the case of law schools and the legal

While blacks make up approximately 12.5 per cent of the

population they only comprise about 1 per cent of the practicing

bar.

With the advent of the age of mobility, coupled with state bar

examinations taking on a national character through adoption of

the multi-state examination, it becomes incumbent upon the

legal profession to insure and support programs that present

opportunities. Opportunities heretofore have been denied a large

segment of the American population solely because of the color

of their skin. Gellhorn, The Law Schools and The Negro, (1968)

Duke L. Jo. 1069. States taking affirmative steps to remedy the

long standing injustice do not violate current equal protection

precedents and are constitutionally within traditional bounds of

state police power. To award a racially conditioned preference in

law admissions so long as the state does so within carefully

constructed affirmative action programs in valid and not in

violation of the Equal Protection Clause of the Fourteenth

Amendment. Similar practices are in existence throughout

federal and state housing and work programs.

It is submitted that the states’ need for curing an imbalance in

the legal profession is short-termed, and if this nation is to

develop a colorblind society in the long run it must ‘refuse to be

color-blind in the short run’ B. Bittker, The Case for Biack

Reparations 120 (1973).

The State of Washington has presented a valid state interest in

establishing its compensatory program at the University of

Washington School of Law. This Court should pay deference to

the legislative intent, needs, and rational behind its com-

pensatory programs and affirm the decision of the Supreme

Court of Washington.

ARGUMENT

THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION DOES NOT FORBID

EQUALIZING THE ACCESS OF MINORITY GROUPS TO

HIGHER EDUCATION AND PROFESSIONAL CAREERS

WHERE A COMPELLING STATE NEED IS DEMON.

STRATED.

The instant case presents this Court with issues that far exceed

the boundaries of the State of Washington. The State in good

faith is attempting to remedy past national discriminatory

practices. It is not only the compensatory program of the

University of Washington that is at issue, but also a national

policy of corrective programs aimed at de facto and de jure

discrimination. The American Bar Association’s concern is with

the national impact that would result from this Court over-

turning the decision of the Supreme Court of Washington.

Instead of being limited to the status of one individual in the

system of legal education, the case thrusts upon this Court the

responsibility of determing the validity of compensatory

programs in all aspects of American life.

Compensatory programs similar to the one at issue in De

Funis v. Odegaard are being implemented not only in higher

education but in business and professional communities as well.

See Associated General Contractors of Massachusetts Inc. v.

Altshuler, (1st Cir., Nov. 30, 1973). See also B. Bittker, The

Case for Black Reparations 120 (1973). De Funis, therefore,

deals not only with the validity of ameliorative or compensatory

admission policies in higher education, it also pertains to the

problem of determining reasonable methods to be employed by

the state in achieving a necessary goal. That goal is not only an

increase in minority representation in the legal field but also an

integration of these presently alienated and estranged culture

groups into the mainstream of American society in order to

promote the general welfare of the entire population. See Bell,

School Litigation Strategies for the 1970's; New Phases in the

Continuing Quest for Quality Schools, (1970) Wise, L. Rev. 257.

Many of the minority groups in the United States have been

and are experiencing antisocial feelings of hostility and

separateness toward American society. Studies by the National

Advisory Commission on Civil Disorders report the explosive

7

SUMMARY OF ARGUMENT

Affirmative action are valid where they are used to

redress the negative results of past racial discrimination and to

correct present racial imbalance. Morris, Equal Protection,

Affirmative Action and Racial Preferences in Law Admissions,

DeFunis v. Odegaard, 49 Wash. L. Rev. 1 (1973).

The argument for affirmative action programs is especially

compelling in the case of law schools and the legal profession.

While blacks make up approximately 12.5 per cent of the

population they only comprise about 1 per cent of the practicing

bar.

With the advent of the age of mobility, coupled with state bar

examinations taking on a national character through adoption of

_the multi-state examination, it becomes incumbent upon the

legal profession to insure and support programs that present

opportunities. Opportunities heretofore have been denied a large

segment of the American population solely because of the color

of their skin. Gellhorn, The Law Schools and The Negro, (1968)

Duke L. Jo. 1069. States taking affirmative steps to remedy t

long standing injustice do not violate current equal protection

precedents and are constitutionally within traditional bounds of

state police power. To award a racially conditioned preference in

law admissions so long as the state does so within carefully

constructed affirmative action programs in valid and not in

violation of the Equal Protection Clause of the Fourteenth

Amendment. Similar practices are in existence throughout

federal and state housing and work programs.

It is submitted that the states’ need for curing an imbalance in

the legal profession is short-termed, and if this nation is to

develop a colorblind society in the long run it must ‘refuse to be

color-blind in the short run’ B. Bittker, The Case for Black

Reparations 120 (1973).

The State of Washington has presented a valid state interest in

establishing its compensatory program at the University of

Washington School of Law. This Court should pay deference to

the legislative intent, needs, and rational behind its com-

pensatory programs and affirm the decision of the Supreme

Court of Washington.

ARGUMENT

THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION DOES NOT FORBID

EQUALIZING THE ACCESS OF MINORITY GROUPS TO

HIGHER EDUCATION AND PROFESSIONAL CAREERS

WHERE A COMPELLING STATE NEED IS DEMON.

STRATED.

The instant case presents this Court with issues that far exceed

the boundaries of the State of Washington. The State in good

faith is attempting to remedy past national discriminatory

practices. It is not only the compensatory program of the

University of Washington that is at issue, but also a national

policy of corrective programs aimed at de facto and de jure

discrimination. The American Bar Association's concern is with

the national impact that would result from this Court over-

turning the decision of the Sug :me Court of Washington.

Instead of being limited to the status of one individual in the

system of legal education, the case thrusts upon this Court the

responsibility of determing the validity of compensatory

programs in all aspects of American life.

Compensatory programs similar to the one at issue in De

Funis v. Odegaard are being implemented not only in higher

education but in business and professional communities as well.

See Associated General Contractors of Massachusetts Inc. y.

Altshuler, (1st Cir., Nov. 30, 1973). See also B. Bittker, The

Case for Black Reparations 120 (1973). De Funis, therefore,

deals not only with the validity of ameliorative or compensatory

admission policies in higher education, it also pertains to the

problem of determining reasonable methods to be employed by

the state in achieving a necessary goal. That goal is not only an

increase in minority representation in the legal field but also an

integration of these presently alienated and estranged culture

groups into the mainstream of American society in order to

promote the general welfare of the entire population. See Bell,

School Litigation Strategies for the 1970's; New Phases in the

Continuing Quest for Quality Schools, (1970) Wise, L. Rev. 257.

Many of the minority groups in the United States have been

and are experiencing antisocial feelings of hostility and

separateness toward American society. Studies by the National

Advisory Commission on Civil Disorders report the explosive

9

quality of the alienation and indifference towards the institutions

of law and government and the white society that controls them.

U.S. Riot Commission Report of the National Advisory Com-

mission on Civil Disorders (1968).

Social scientists recognize that most social change takes

definitive form through the rule and operation of law. Hen-

derson, New Roles for the Legal Profession in Race, Change and

Urban Society, 483 (Orleans and Ellis ed. 1971). Unfortunately,

in regard to the minority population, the legal profession itself

has in the past failed to effectuate necessary changes. Some law

schools have been especially slow in opening their doors to the

minority student. Legal Education Advance Planning, An In-

troductory Study of Minority Law Student Development

Potentials (Dec. 1971). A history of racial discrimination has

resulted in underrepresentation of a substantial minority

population. See Franklin, History of Racial Segregation in the

United States, 34 Annals Amer. Aca. of Pol. and Soc. Sci. 1-5

(Mar. 1956); L. Litwaock, North of Slavery 113-117 (1961): See,

e.g., Missouri ex rel Gaines v. Canada, WS U.S. 337 (1958).

There exists, then, a legacy of past governmental and societal

discriminatory practices establishing a compelling need for

affirmative action. These discriminatory practices revolve

around three manifestations of state action:

1. Failure to adequately prepare minority students to compete

for matriculation positions in law schools. Brown v. Board of

Education, 347 U.S. 483 (1954); Swann vy. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1 (1971).

2. Failure to provide minority students with a sound legal

education. Missouri ex rel Gaines v. Canada, supra; Sipuel v.

Board of Regents of Oklahoma, 332 U.S. 631 (1948; Sweatt v.

Painter, 339 U.S. 629 (1950; Florida ex rel Hawkins v. Board of

Control of Florida, 350 U.S. 413 (1956).

3. Failure to provide opportunities for admission into law

school results in a lack of equal access to job opportunities for

minority group law graduates. Note, The Negro Lawyer in

Virginia: A Survey, 51 Va. L. Rev. 521 (1965); C. Woodson, The

Negro Professional Man and the Community (1934); Haynes,

The Negro Federal Government Worker, 3 Howard Univ.

Studies in Soc. Sci. (1941).

10

1 - PRE-LAW PREPARATION FOR MINORITY STUDENTS

Minority students are unable to successfully compete for

admission to law schools because of the inadequacy of the

elementary and secondary education which they have received.

Good, A History of American Education (1956).

In the segregated Southern system and in the residentially

separate Northern system blacks suffered from a public which

saw little value in educating blacks in other than vocational

fields. The expectation level for blacks was several notches below

the white ‘norm’. Research has shown the self fulfilling prophecy

of expectation, particularly in the educational setting. Good, A

. History of American Education 267 (1956).

In 1965 it was reported that children in the Massachusetts de

facto segregated schools were as much as three years behind

children in other schools in the city. In Atlanta, Georgia

children in black schools were reading three grade levels below

children in white schools. J. Kozol in his book Death at an Early

Age described the harsh realities of the dual color system in the

1960's.

“One of the saddest things on earth is the sight of a young

person already becoming adolescent, who has lost about

five years in the chaos and oblivion of a school system

and who still not only wants to but plans to learn.”

J. Kozol, Death at an Early Age, 45-46 (1967).

Educators and social scientists have produced large bodies of

evidence documenting the conclusion that racial separation has a

powerful and injurious impact on the self image, confidence,

motivation, and school achievement of Negro children. In Brown

v. Board of Education, supra, this Court pointed to the

inherently adverse effects of racially imbalanced school systems

upon the class being discriminated against. Until very recently,

and despite the mandate of Brown, some states openly and

directly continued to maintain separate school systems for

majority and minority races. See, e.g., Cooper v. Aaron, 358 U.S.

1 (1958); Griffin v. County School Board of Prince Edward

County, 377 U.S. 218 (1964) and Swann v. Charlotte-

Mecklenburg, supra. A glaring disparity existed between the

quality of education afforded the Negro and that granted the

white. See, e.g., Serrano v. Priest, % Cal. Rep. 601; 487 P.2d

11

1241 (1971). The curriculum varied greatly between the white

high school and the black high school. Kirp, The Poor, The

Schools and Equal Protection, Educational and Legal Structure,

Harvard Educational Review (Reprint 6 1971). Where there was

one high school, there was always the possibility of a tracking

system where blacks could be programmed into the vocational

areas. See Kozol, Death at an Early Age, supra.

One teacher in a black Massachusetts school asked the

students to write an essay about their school. This exerpt reflects

the student’s attitudes toward the facilities or lack of facilities:

“The room is dirty. The auditorium is dirty, the seats are

dirty. The light in the auditorium is broke. The curtains

in auditorium are ragged. They took the curtains down

because they was so ragged. The bathroom is dirty. The

cellar is dirty.” Kozol, Death at an Early Age, Supra, at

133.

When students emerge from such school systems they are not

able to perform on the same level as their white counterparts. If

they attend integrated universities for their baccalaureate

degree, their grade point average is not as high as that of the

average white student. Gellhorn, The Law Schools and The

Negro, supra at 1089-1092. Their admission test scores for

prefessional schools are not as high as those of the average white

student. There have been many criticisms of the nationwide tests,

particularly of the entrance examinations used for college and

professional sckool admissions. Attempts have been made to

create culture fair tests. However, the tests may not be the bias,

the key may lie more in the posture of test taking.

The average child on a low income level has been shown

to approach any kind of test negatively since he believes

that it will only expose his shortcomings and remind him

that he is at the end of the procession. To shorten the

period of discomfort he usually spends little time on

difficult items and makes haphazard guesses instead of

thinking things through. The middle class child, on the

other hand, has been taught to do his best on all tests and

is accustomed to meeting the challenge with all the

mental equipment he has at his command.”

Goldensen, The Encyclopedia of Human Behavior 284 (1969).

12

The disparities in grade point average and test scores do not,

however, prove that the black student lacks potential ability.

See, L. Ehrman, G. Omen, and E. Caspari, Genetics, En-

vironment and Behavior: Implications for Educational Policy

(1972); O'Neil, Preferential Admissions, 80 Yale L. Jo. 699

(1971), and Legal Education Advance Planning, An Introductory

Study of ifinority Law Student Development Potentials, supra.

2 - HISTORICAL STATE COMMITMENT TO LEGAL

EDUCATION FOR BLACK STUDENTS

Just as minority students have not had an equal chance to

compete for admission to law schools, they have likewise been

been denied an equal opportunity to participate in a legal

education. This is caused, first of all, by societal pressures which

disincline minority youths from aspiring to a legal career. Legal

Education Advance Planning, supra. The most highly qualified

Blacks have gone into medicine, teaching, and social work.

Interest in the legal field has been limited for the following

reasons, among others, contends Gellhorn:

1. Belief that there is a dual justice system with lack of justice

or injustice the rule for minorities,

2. Limited financial potential for minority lawyers

3. The great gulf between the expenses for a legal education

and the money in hand

4. Inadequately developed communication skills

5. Ignorance of professional opportunities in the law

6. Failure to understand the scope of the legal system

In addition, the process of vocational goal setting, of acquiring

roles, is partly dependent on the individual's early opportunities

to observe the activities of those in the roles and to role play.

However, many minority children have had little or no op-

portunity to observe the activities of the lawyer or the judge or

the law enforcer from a positive perspective. These have been

foreign roles with little role playing appeal. The concept of the

role expectation - the rights and obligations of the individual in

relation to the law did not develop. The lack of models con-

tributed to the void in knowledge about the legal profession.

13

Furthermore, until the very recent past, the legal system has

often had no place for many minority students. Gellhorn, The

Law Schools and the Negro, supra 1069. Although the first black

graduated from an American law school (Harvard) in 1869, there

were law schools in 1971 which never had black graduates.

Atwood, James and Long, Survey of Black Law School

Enrollment 16 Student Law, 18, 36-38 (1971). In most Southern

states, law schoo’s and bar associations completely denied en-

trance to minority students until the late 1950's, even after the

decision in Sweatt v. Painter, 399 U.S. 629 (1950) and Florida ex

rel Hawkins v. Board of Control, 350 U.S. 413 (1956). The

situation has not greatly improved since then. The University of

Alabama, for instance, as of 1968, had no blacks in the law

school and had not graduated a single black lawyer. Outside of

the South the situation is almost as acute. In many

predominantly white universities and law schools, blacks were

often rarly seen. Leflar, Legal Education: Desegregation in Law

Schools, 43 A.B.A. Jo. 145 (1957) and M. Davie, Negroes in

American Society 163 (1949). Indiana University, for instance,

had 27,000 undergraduates in 1968. Included in that number

were some 1,700 blacks, the largest number of black students on

any Big Ten campus. Yet Indiana had only three black law

students enrolled during the 1967-1968 academic year. Gellhorn,

The Law School and the Negro, supra, 1069, 1081. Not until 1965

were all member institutions of the Association of American Law

Schools able to assert that admission was denied to no applicant

on the ground of race or color. Until 1968, there were 200 blacks

among the 10,000 graduating annually from the nation’s law

schools. Gellhorn, The Law School and the Negro, supra at 1077-

1080.

The result of these discriminatory practices has been a dearth

of black attorneys. Nationally, as of 1968, the legal profession

numbered some 3,000 black attorneys among the more than

300,000 lawyers in the United States. Although blacks con-

stitute in excess of 12.5 per cent of the nation’s population, they

were constituting less than | per cent of the attorneys. Whereas

in 1970 there was one lawyer for every 637 persons in the United

States, there was only one black lawyer for every 7,000 blacks

and 14 American Indian lawyers to service 800,000 Indians.

Legal Education Advance Planning, supra at 65.

Va

The State of Washington mirrors the national figures. In 1970

the population of the state of Washington was 3,409,169. Black

Americans counted for 71,308 or 2.1 per cent; American Indians

made up | per cent of the population. U.S. Dept. of Commerce

Bureau of Census, General Population Characteristics of the

State of Washington Tables 17-18 (1973). In 1970 there were

approximately 4,550 active members of the Washington State

Bar Association. Only twenty of these members were black. In

1970 there was one white lawyer for every 720 whites; there was

only one black lawyer for every 4,195 blacks and only one

American Indian lawyer for every 6,677 American Indians in the

state. See generall, Morris, Equal Protection, A ffirmative Action

and Racial Preferences in Law Admissions, DeFunis vy.

Odegaard 49 Wash. L. Rev. 1, 35-41 (1973).

As the court below observed, “minorities have been, and are,

grossly underrepresented in the law schools—and consequently

in the legal profession—of this state and this nation.”” DeFunis v.

Odegaard, supra at 82 Wash. 2d 32-33; 507 P. 2d 1182 (emphasis

added).

As Professor Arval A. Morris of the University of Washington

School of Law noted:

“The State of Washington has a deep and abiding in-

terest in correcting these disparities and in making sure

that legal education is in fact made equally available.

While the state voluntarily undertook to provide a

corrective program of law school admission it may ac-

tually have been under a constitutional duty to have done

so.

That access to legal education has effectively been denied

to minority group members in the State of Washington is

only too painfully evident from these statistics. Yet,

minority group members pay state taxes, a pert of which

go to support the University of Washington and its law

school. In fact, since minority groups in the state are

found disproportionately in the lowest income classes,

and since Washington’s tax structure is highly regressive,

minority groups tend to incur a disproportionately heavy

State tax burden.

eae: npn tee

13

Furthermore, until the very recent past, the legal system has

often had no place for many minority students. Gellhorn, The

Law Schools and the Negro, supra 1069. Although the first black

graduated from an American law school (Harvard) in 1869, there

were law schools in 1971 which never had black graduates.

Atwood, James and Long, Survey of Black Law School

Enrollment 16 Student Law, 18, 36-38 (1971). In most Southern

states, law schools and bar associations completely denied en-

trance to minority students until the late 1950’s, even after the

decision in Sweatt v. Painter, 399 U.S. 629 (1950) and Florida ex

rel Hawkins v. Board of Control, 350 U.S. 413 (1956). The

situation has not greatly improved since then. The University of

Alabama, for instance, as of 1968, had no blacks in the law

school and had not graduated a single black lawyer. Outside of

the South the situation is almost as acute. In many

predominantly white universities and law schools, blacks were

often rarly seen. Leflar, Legal Education: Desegregation in Law

Schools, 43 A.B.A. Jo. 145 (1957) and M. Davie, Negroes in

American Society. 163 (1949). Indiana University, for instance,

had 27,000 undergraduates in 1968. Included in that number

were some 1,700 blacks, the largest number of black students on

any Big Ten campus. Yet Indiana had only three black law

students enrolled during the 1967-1968 academic year. Gellhorn,

The Law School and the Negro, supra, 1069, 1081. Not until 1965

were all member institutions of the Association of American Law

Schools able to assert that admission was denied to no applicant

on the ground of race or color. Until 1968, there were 200 blacks

among the 10,000 graduating annually from the nation’s law

schools. Gellhorn, The Law School and the Negro, supra at 1077-

1080.

The result of these discriminatory practices has been a dearth

of black attorneys. Nationally, as of 1968, the legal profession

numbered some 3,000 black attorneys among the more than

300,000 lawyers in the United States. Although blacks con-

stitute in excess of 12.5 per cent of the nation’s population, they

were constituting less than | per cent of the attorneys. Whereas

in 1970 there was one lawyer for every 637 persons in the United

States, there was only one black lawyer for every 7,000 blacks

and 14 American Indian lawyers to service 800,000 Indians.

Legal Education Advance Planning, supra at 65.

4

The State of Washington mirrors the national figures. In 1970

the population of the state of Washington was 3,409,169. Black

Americans counted for 71,308 or 2.1 per cent; American Indians

made up | per eent of the population. U.S. Dept. of Commerce

Bureau of Census, General Population Characteristics of the

State of Washington Tables 17-18 (1973). In 1970 there were

approximately 4,550 active members of the Washington State

Bar Association. Only twenty of these members were black. In

1970 there was one white lawyer for every 720 whites; there was

only one black lawyer for every 4,195 blacks and only one

American Indian lawyer for every 6,677 American Indians in the

state. See generall, Morris, Equal Protection, Affirmative Action

and Racial Preferences in Law Admissions, DeFunis v.

Odegaard 49 Wash. L. Rev. 1, 35-41 (1973).

As the court below observed, “minorities have been, and are,

grossly underrepresented in the law schools—and consequently

in the legal profession—of this state and this nation.” DeFunis v.

Odegaard, supra at 82 Wash. 2d 32-33; 507 P. 2d 1182 (emphasis

added).

As Professor Arval A. Morris of the University of Washington

School of Law noted:

~

“The State of Washington has a deep and abiding in-

terest in correcting these disparities and in making sure

that legal education is in fact mad’. equally available.-

While the state voluntarily undertook to provide a

corrective program of law school admission it may ac-

tually have been under a constitutional duty to have done

so.

That access to legal education has effectively been denied

to minority group members in the State of Washington is

only too painfully evident from these statistics. Yet,

minority group members pay state taxes, a part of which

go to support the University of Washington and its law

school. In fact, since minority groups in the state are

found disproportionately in the lowest income classes,

and since Washington's tax structure is highly regressive,

minority groups tend to incur a disproportionately heavy

state tax burden.

iy

1S

Given that Washington’s minority groups have not

enjoyed an equal share of public legal education and that

they pay state taxes, part of which support the law

school, it is obvious that the state has a compelling and

overriding interest in effectively making public legal

education equally available to minority group for the

simple reason that under the equal protection clause a

state is obligated to provide equal opportunity to all its

citizens. The state’s law school may fulfill that obligation

voluntarily by using a racially conditioned preferential

admissions policy.”

Morris, Equal Protection, Affirmative Action and Racial

Preferences in Law Admissions, Defunis v. Odegaard,

supra at 37-40.

3 - UNEQUAL ACCESS TO JOB OPPORTUNITIES FOR

BLACK LAWYERS

The third manifestation of state action has been the absence of

equal job opportunities for minority lawyers. This has resulted

from the failure to provide opportunities for admission into law

schools. Compare Hobson v. Hansen, 269 F. Supp. 401 (D.D.C.

1967); Griggs v. Duke Power Co., 401 U.S. 424 (1971). See also,

Morris, Equal Protection, Affirmative Action and Racial

Preferences in Law Admissions De Funis v. Odegaard, supra at S

aq 7 ~.

Since it is clear that minorities have not had equal access to a

legal education, and consequently, the opportunity to become

lawyers, the question arises as to why it is important that

minority groups enter the legal profession. The question is dealt

with quite adequately in Atwood, James, and Long, Survey of

Black Law Student Enrollment, supra.

“First, the leadership of our country at every level of

government is largely dominated by lawyers. Yet within

the black community two traditional avenues to relative

success have been through social work and the ministry.

Tea?

ae

16

Black ieadership, as a result, has often arisen from these

professions. However, as the struggle for equal op-

portunities has moved from the streets to the courts and

ballot box, it has been the black lawyer whose leadership

qualities have increasingly been sought, especially for

elective office. And who in the black community, other

than the lawyer, is best able to effectively deal with in-

stitutions of power in our society -- legislative bodies,

conte. administrative agencies, business and labor?” Jd '

at

The objectives of the University of Washington School of Law

are similar to most other law schools: 1. prepare the student for

public service, 2. prepare the student for the practice of law,

3. prepare the student for law teaching, and 4. to prepare the

student for legal research. It is the special role of the state

supported law school to supply the state as well as the nation

with social inventors and social mechanics. From the University

of Washington School of Law emerge the main body of political

leadership in the state. See Morris, Equal Protection Affirmative

Action and Racial Preferences in Law Admissions, Defunis v.

Odegaard, supra at 41-42. The situation existing in Washington

is reflected and magnified at the national level.

As long as minority groups remain underrepresented in the

legal field, in excess if 12.5 per cent of the nation’s population

will likewise be underrepresented in positions of power. They

will continue to suffer disillusionment with and alienation from

the legal system through which the organization and main-

tenance of law and order is procured. They will seek other

means, possibly violent ones, to meet their needs. See generally,

U.S. Riot Commission Report, supra. See also Joint Economic

Commission, 1964 Joint Economic Report No. 931, 88th Cong.,

2d Sess. 61 (1965).

There is, then, an evil to be cured. Minority groups are denied

both access to a legal education and equal representation in the

legal profession. Morris, Equal Protection, Affirmative Action

and Racial Preferences in Law Admissions, supra at 5. There is,

furthermore, a compelling state interest in curing this evil. As

long as it exists, a significant portion of our population is denied

the opporunity to participate in the affairs of government, and

the serious possibility of social unrest, if not upheaval, exists. We

must ask, then, what steps can be taken to compensate for the

discriminatory practices which have led to the evil which exists?

ce ot:

SER. Fk a me ay DE ONT

17

The policy followed in good faith by the University of

Washington School of Law, at issue in the instant case, is one

such step, and it is the only kind of policy that can be used at the

present time. The simple fact is that nationally, it works.

Gellhorn, The Law School and the Negro, supre at 1081-1085.

Before compensatory programs began, minority groups were

denied admission to law schools. Jd. at 107S. Until 1968 there

were about 200 _ Blacks out of a total of 10,000 graduating from

American law schools annually. Jd. at 1077. In the past three

years, since the advent of compensatory programs, black student

enrollment has increased more than 200 per cent.

UTILIZATION OF COMPENSATORY PROGRAMS ARE

PERMISSIBLE WHEN RELATED TO A VALID STATE

INTEREST

The University of Washington utilized race as one factor in

selecting students for law school admission. Until the decision of

the court below, De Funis v. Odegaard, 82 Wash. 2d 11, 507 P.2d

1169 (1973), lower courts had not yet squarely faced the issue of

whether the ameliorative racial classification for academic

admission was highly suspect, thus being subject to rigid

scrutiny, or whether the university speaking for the state could

demonstrate that the use of its policy was essential to the

achievement of a compelling governmental objective. Ordinarily

racial classifications were inherently devisive; they tended to

involve a certain degree of prejudice toward persons on both

sides. Thus, as the petitioner points out, the power to classify on

the basis of race could be dangerous. See also Associated Gen.

Contractors of Massachusetts v. Altshuler, supra at 13-14.

However, when legislatures enacted laws based in part upon

racial distinction, but designed to eliminate racial inequality,

courts generally took the position that the classification could be

sustained if it was rationally related to an overriding govern-

mental purpose. The-classification must be established as not

invidious. It must also relate to a compelling state interest and

provide a rational means of implementing that interest. See,

e.g., Brooks v. Beto, 336 F.2d 1 (Sth Cir. 1966); Porcelli v. Titus.

431 F.2d 1254 (3rd Cir. 1970) and Swann v. Charlotte-

Mecklenburg Board of Education, supra.

1. The classification in De Funis is not invidious:

Case law has clearly established that preferential programs

enhancing minority access to the mainstream of American

society are not ‘invidious’ discrimination since the goal of

compensatory programs is not the separation of the races but the

equalization of two cultures within one society.

“(The function of equal protection...is to shield groups of

individuals from stigmatization by government.

Whetheror not particular legislation stigmatizes is

largely a sociological question requiring consideration of

the structure and history of our society as well as

examination of the statute itself. Legislation favoring

Negroes, then, would be constitutional because it is

rational and because in our society it would not

stigmatize whites.” Wright, The Role of the Supreme

Court in a Democratic Society - Judicial Activism or

Restraint? 54 Cornell L. Q. 1, 18 (1968) see also; Hobson

v. Hansen, 269 F. Supp. 401, 492-508 (D.D.C. 1967).

In accordance with these views, housing and employment

racial classification have been permissible.

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d,

920 (2d Cir. 1968); Otero v. New York City Housing Authority,

484 F.2d 1122 (2d Cir. 1973); Associated General Contractors of

Massachusetts v. Altshuller, supra. Likewise, in elementary and

secondary education, the goal of equal opportunity for all stands

so important that racial classifications are considered .

missible. Offermann v. Nitkowski, 248 F. Supp 129 (W.D.N_Y.

1965S), Wanner v. School Board of Arlington County, 357 F.2d

452 (4th Cir. 1966); United States v. Jefferson County Board of

Education, 372 F.2d 83% (Sth Cir. 1966); United States v.

Plaquemines Parish School Board, 291 F. Supp. 841 (E.D. La.

1967); Hobson v. Hansen, supra, and United States v. Board of

Public Instruction of Polk County, 395 F.2d 66 (Sth Cir. 1968).

School boards which have consciously utilized race in the past in

an effort to separate students must now use racially conscious

policies to bring students together. Swann v. Charlotte-

Mecklenburg Board of Education supra. Thus, racial

classifications are permissible when utilized to eradicate the

vestiges of dual society. Although most courts have held that a

a ei i Eel ee ee

ME ee

- a a A i ill i a i i

19

state need not afirmatively act to fd de facto segregation for

which it is not directly responsible, courts generally have per-

mitted governmental discretion in selecting and implementing

policies to overcome all forms of segregation. See, e¢.g.,

Associated General Contractors of Massachusetts v. Altshuler,

supra., and Otero v. New York City Housing Authority, supra.

One vestige of racial discrimination is the lack of minority access

to the political and legal machinery in this country. ‘ The

meagerness of such access affects the entire legal profession.

2. There is a compelling state interest.

This Court has held that racial classifications can be part of

programs that further overriding or compelling state interests.

See McLaughlin v. Florida, 379 U.S. 184, 192 (1964). See also

Brooks v. Beto, 3% F.2d 1 (Sth Cir. 1966). In McLaughlin, this

Court required proof that racial classification did indeed seek to

remedy effects of past racial discrimination. See also Norwalk

CORE v. Norwalk Redevelopment Agency, supra, and Asso.

General Contractors of Massachusetts v. Altshuler, supra.

Brooks illustrated that the intentional inclusion of blacks on a

grand jury was a permissible means of remedying the effects of

past racial discrimination. In Brooks, the community in

question supported a population of 10 per cent blacks, yet it had

not employed a black member on a grand jury. Likewise af-

firmative action requirements promulgated by federal agencies

have generally been upheld. For example, the Department of

Labor's affirmative action program insuring minority hiring on

federal construction projects was upheld in Contractors

Association of Eastern Pennsylvania v. Secretary of Labor, 311 F.

Supp. 1002, 1009 (E.D. Pa. 1970). See also, Morris, Equal

Protection, Affirmative Action and Racial Preferences in Law

Admissions, De Funis v. Odegaard. supra at 35-46.

3. The State has adopted a rational means of implementation.

The intentional use of racial classification by the state is a

reasonable means of implementing the compelling state interest

in having more minority representation in the legal profession.

Increasing the number of minority lawyers requires greater input

into the educational system of minorities who are currently

20

disproportionately underrepresented in the major academic

institutions in the United States.

NECESSITY FOR AND RATIONALE BEHIND RACIAL

CLASSIFICATION

It is respectfully submitted that these circumstances cannot be

artificially separated and dealt with in isolation as suggested by

petitioners. It is further submitted that these circumstances

present this Court with a pelling issue of national concern.

qualified minority students to have the Opportunity to qualify for

law school admission on a competitive bases. See generally

Schrader & Pitcher, Predicting Law School Grades for Black

American Students, LSAC Annual Report (1973), and Bell, In

Defense of Minority Admissions Programs: A Response to

Professor Gaglia, 119 U. Pa. L. Rev. 364 (1970). Consequently,

more than 12.5 per cent of the nation’s population experiences

disillusionment with the educational system as well as the legal

system through which the organization and maintenance of law

and order is procured. See, generally, U.S. Riot Commission

Report, supra. This cannot be viewed solely as an individual

state’s problem, because of the mobility which typifies the

American character and which is on the increase within the

academic andprofessional communities. Legal Education Ad-

vance Planning, supra at 125-128. Those receiving un-

dergraduate education in one state will often attend a

professional school in another state. hid. Many southern

blacks have been forced to gO east or west or north in order to

obtain a legal education. Couple this fact with the increased

emphasis upon the multi-state bar examination, ibid., and the

increased freedom of movement, Heart of Atlanta Motel, Inc. v.

benefits, Shapiro v. Thompson, 349 U.S. 618 (1969), and it

becomes clear that the issues involved in the instant case take on

national proportions.

ee

21

a .*

SINCE THIS NATIONAL ISSUE EVOLVED FROM A

HISTORY OF STATE ACTION, GOVERNMENTS HAVE

ACCEPTED THEIR RESPONSIBILITY TO ACT AF-

FIRMATIVELY

The First Circuit Court of Appeals in Altshuler stated that:

“|. discrimination has a way of perpetuating itself, albeit

unintentionally, because the resulting inequalities make

new opportunities less accessible. Preferential treatment

is one partial prescription to remedy our society's more

intransigent and deeply rooted inequalities. Intentional,

official recognition of race has been found necessary to

achieve fair and equal opportunity. . .” supra at 11-12.

Consequently, this Court and many of the lower federal and

state courts that have considered the issue make it clear that the

Constitution is color conscious where color is to be taken into

account to prevent perpetuation of a discrimination and to undo

the impact and effects of past segregated practices. See

collection of cases cited in O'Neil, Preferential Admissions

Equalizing the Accessof Minority Groups to Higher Education,

supra at 707-709. See, also, Associated General Contractors of

Massachusetts v. Altshuler and cases cited therein, supra at 11-

14.

As this Court noted in Green v. County School board, 391 U.S.

4H (1968), past state discriminatory practices have so diluted

educational programs for blacks that now the burden rests upon

school boards to come forward with plans that promise

realistically to work, and to work now. Judge Sobeloff added, in

Bowman v. County School Board, 382 F. 2a 326, 333 (4th Cir.

1967) (concurring opinion), that ‘the school officials have the

continuing duty to take whatever action may be necessary to

create a unitary non-racial system.’ In Springfield Community v.

Barksdale, 348 F. 2d 261 (ist Cir. 1965), the court noted:

“Racial imbalances disadvantage Negro students and

impair their educational opportunities as compared to

the other races to such a degree that they have a right to

insist that school authorities consider special problems

. along with all other relevant factors.

»

22

(Given a) racial group which has historically been the

object or victim of the state generated discrimination, the

selectors can perform their constitutionally prescribed

duty only by being conscious of that class. This means

they must be conscious of that race and be conscious that

the system constructed or followed by them has as its

conscious the supplying of that race for inclusion in the

universe.

Norwalk CORE v. Norwalk Board of Education added:

For this court to intervene in a case such as this (at-

tempt to overcome de facto segregation by busing) would

be to discourage voluntary action by enlightened public

pes Re pe to ee one of the underlying

ses of racial tension in this nation.” é ‘

226 (D. Conn. 1969). sical

But the problem at issue is not confined to the realm of school

admissions. Courts have supported similar programs in business

and professional arenas. In Porcelli v. Titus, 431 F.2d 1254 (3rd

Cir. 1970), cert. denied, 402 U.S. 944 (1971), white teachers

alleged that the local school board had bypassed them when it

abolished the regular promotion schedule for selecting principals

and vice principals and had instead given priority to black

candidates in order to increase the integration of the system's

facilities. In upholding the board’s judgment to eliminate the

ordinary promotion system, the court stated that state action

based partially on considerations of color is not necessarily a

violation of the Fourteenth Amendment when color is used in

furtherance of a proper governmental objective. The emphasis

rested upon the legitimate purpose, the valid state interest to be

achieved. The court further held that in some situations the

means of achieving the valid state interest may appear to be

administratively awkward, or inconvenient, or may even impose

burdens on some. However, awkwardness or inconvenience

cannot be avoided in an interim period when adjustments are

being made to eliminate dual school systems. Swann v.

Charlotte-Mecklenburg, supra; Associated Contractors of

Massachusetts v. Altshuler, supra at 11.

As noted in Evers v. Jackson Municipal Separate School

District, 328 F.2d 408 (Sth Cir. 1964), the time for footdragging is

over. Since the early 1950's, law schools have known that they

must open their doors to the minority student. In 1974, there are

still law schools that have failed to produce a black graduate.

Consequently, ‘the rule has become the later the start, the

eee

shorter the time allowed for transition.’ Lockett v. Board of

Education of Muskogee County School District, 342 F.2d 225

(Sth Cir. 1965). See, also, Singleton v. Jackson Municipal

Separate School District, 348 F.2d 729, 730 (Sth Cir. 1965).

As the Court below noted in De Funis, the shortage of

minority attorneys, resulting in the shortage of minority

prosecutors, judges, public officials, governors, and

the like, constitutes an undeniable, compelling state interest. If

minorities are to live within the rule of law, they must enjoy equal

representation within the legal system. De Funis v. Odegaard,

supra at 35. ;

There is a compelling need to insure proper representation of

attorneys within the minority community. This need must focus

upon and favor those racial minority groups not only un-

derrepresented but also disproportionately the:

23

“(a) victims of overt racial discrimination; (b)

socioeconomically disadvanted; (c) unfairly appraised by

standardized tests; and those who are (d) graduates of

overcrowded, rundown and badly staffed high schools.

Most black, Spanish-American and American Indian

applicants clearly meet these criteria and therefore

present the strongest claims for special consideration.’

O'Neil, Preferential Admissions: Equalizing the Access

of Minority Groups to Higher Education, supra at 750.

Thus, the consideration of race in the law school admissions

policies meets the test of valid state interest and necessity

because its goal is to alleviate the racial imbalance existing in the

legal profession. This goal can be achieved only by providing a

legal education to those minority groups which have been

historically deprived of equal educational opportunities.

The most compelling argument in favor of the test was stated

by the majority opinion in the Court below when the court noted:

‘It has been suggested that the minority admission’s

policy is not necessary, since the same objective could be

accomplished by improving the elementary and

secondary education of minority students to a point

where they could secure equal representation in law

school through direct competition with non-minority

applicants on the basis‘of the same academic criteria.

This could be highly desirable, but 18 years have passed

24

since the decision in Brown v. Board of Education, 347

U.S. 483 (1954), and minority groups are still grossly

underrepresented in law schools. If the law school is

forbidden from taking affirmative action, this un-

derrepresentation may be perpetuated indefinitely.” De

Funis v. Odegaard, supra at %

Twenty years have now passed since Brown, and minority groups

are still denied proportionate representation. The unfortunate

legacy of the past action continues.

Thus the case law is clear. The states may identify and correct

serious racial imbalance where the goal is to insur legal training

and to represent those who have in the past been systematically

shut out of the legal profession. Such action is permissible even

though it does not provide an immediate solution to the entire

problem of equal representation within the legal system.

It is a bold beginning that has, in the past three years, borne

the fruits of its efforts. For this Court to sustain the petitioner's

argument would be the equivalent of sustaining the segregation

of the past. The case law is clear that segregation cannot be

tolerated; remedial programs voluntarily entered into by state

and national governments aimed at ending segregation within

professions and within professional schools should be approved

as meeting a compelling state need.

“It is by now well understood, however, that our society

cannot be completely colorblind in the short term if we

are to have a colorblind society in the long term. After

centuries of viewing through colored lenses, eyes do not

quickly adjust when one’s lenses are removed.”

Associated General Contractors of Massachusetts v.

Altshuler, supra at 11.

CONCLUSION

For the reasons stated it is respectfully submitted that the

decision of the Supreme Court of Washington be affirmed.

Respectfully submitted,

Fletcher N. Baldwin, Jr.

1804 SW 43rd Avenue

Of Counsel Gainesville, Florida 32608

Chesterfield Smith

ident, American Bar Association

1155 East 60th Street

Chicago, Illinois 60637

February, 1974

25

PROOF OF SERVICE

I, Fletcher N. Baldwin, Jr., Attorney for the American Bar

Association as Amicus Curiae and a member of the Bar of the

Supreme Court of the United States, hereby certify that on the ae

day on January, 1974, I served copies of the foregoing Brief and

motion for leave to file on petitioners and respondents there in

named, by mailing copies in a duly addressed envelope, with

postage prepaid, to Josef Diamond, Esquire, 400 Hoge Building,

Seattle, Washington 98104 and James B. Wilson, Esquire, Senior

Assistant Attorney General, 112 Administration Building,

University of Washington 98195.

Fletcher N. Baldwin, Jr.

1804 S. W. 43rd Avenue

Gainesville, Florida 32608

Attorney for the

American Bar Association