# Amicus Curiae Brief — DeFunis v. Odegaard

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1598%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 312

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1598%3A17. Public record. Not legal advice.