Amicus Curiae Brief — DeFunis v. Odegaard

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Text

No. 73-235

Marco DeF unis, ET AL., Petitioners,

CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITY OF

WASHINGTON, ET AL., Respondents.

On Writ of Certiorari to the Supreme Court of Washington

BRIEF AMICI CURIAE

For the National Council of Jewish Women: the Union of

American Hebrew Commission

Marian Wricut EDELMAN

Children’s Defense Fund

1746 Cambridge Street

Cambridge, Mass. 02138

Of Counsel: Attorney for Amici

JosePH L. Ravu, JR.

1001 Connecticut Ave., N.W.

Washington, D. C. 20036

A ST I I TET. LER:

Passes or Brron S. Apams Puurrinc, Inc., Wasmmneron, D. C.

TABLE OF CONTENTS

Page

TWTRODUGTBIOM 6... ce ic cvedecccctoccesedecsvevesocos 1

QUESTION PRESENTED ...-.2+---seccceeceseecereeees 2

INTEREST OF AMIOL ........ ec cc cc ccccnccecnccceeeese 2

STATEMENT OF THE CASE ......... ccs cece nceseesecese 10

SuMMARY OF ARGUMENT .........csscescecereccccens 20

AROUMBINE ii 66k cc BRESCCES FAs Ws RDA cvs CARER PAs 8 22

I. The Applicable Law: A Test of ‘‘Reasonable-

es Gk wed wna eas RS ae eRe 22

A. This case presents a new issue in the law of

‘‘racial classifications.’? A new issue should

be considered anew: broad language in past

decisions should be applied only if it is appli-

OOM 55 is Caines MERE HAI Ses 22

B. The key to the past cases, in which the Court

struck down racial classifications and pre-

sumed them unconstitutional, has been an ele-

ment of inferior treatment or stigmatization

of a racial minority by the majority. The

sweep of those decisions, therefore, is of

limited scope—falling short of the present pa

C. The theory of ‘‘suspectness,’’ that shifts the

presumption against the constitutionality of a

classification, applies only to classifications

used to burden ‘‘insular’’ and victimi

minorities. Thus the classification in the

present case, not so used, need not be pre-

sumed unconstitutional ..........--...+e0+- 32

seeking more than a token

rity students was not unrea-

B. The Law School's affirmative policy to seek

minority students was not unreasonable in

initiate

number

¥ 3.4

éé

igs

a: 2

TABLE OF AUTHORITIES

Caszs: Page

Addabbo v. Donovan, 16 N.Y. 24 619, 209 N.E. 24.112 45

Anderson v. Martin, 375 U.S. B99 2.0.00. cece ccc cecee

Anderson v. San Francisco Unified School District, 357

Aaua gt Pa pee At pen ne Thgg | F

General Contractors of Massachusetts v.

P step ake py “= S acien tacnmieeinee = 5

v. ; ee eee eee eee weenenenaeneaaeene

Brown v. fom of Education, 347 U.S. 483 .......... 27

Buchanan v. W. Sa > cccedhesdnenssnneiee 27

Cassell v. Texas SN nulhooudebaesdanaia dan

Carter v. Gallagher, 452 F.2d 315 (CA 8), cert. denied,

8 A PRE AE pew the gdge.

Castro v. Beecher, 459 F 247% Ne tle Ppl me tay. 42, 43

Contractors Ass'n of Eastern v. Seore-

tary of Labor, F.2d 159 (CA 3), cert. denied,

SP OR Ree eee |. 42

Frontiero v. RS ta uw

Gaston County v Usiied Borage GO ti tae

on County v. United States, 395 U.S. 285 ...... ,

vM MRI oo os Seseccccccccce 22

Graham +. XY > § 9 eRpaRIRe - &

Green v. County School Board, 391 U.S. 430 ........ 40

Griggs v. Duke Power Co., 401 U8. 424.............. 57

Guinn ¥. United States, 238 US. 347... 6

Harris v. New York, 401 U.S. 222..................-.

Heat and Frost Workers, Local 63 ¥. Vogler, 407 F 24

SR Si ee 41

Hirabayashi v. United States, 320U.S8.81.......... 37

Hunter v, Erickson, 393 U.S. 385 .................. 29

Jackson v. Indiana, 406 U.S. 715 ................... 36

James v. Strange, 407 U.8.128 oo. een n nee

James +. Valti Oo oo Lage uh cele.

Joyce ¥. McCrane, 320 F. . 1284 (D.NJ.) ........ 42

Keyes v. Denver School — No. 1,413 U.S. 189 .. =

PPO OEE

McLaughlin v. Florida, 379 U.S. 184........ 23, 29,

Monroe v. Board of Commissioners, 391 U.S. 450......

iv Table of Authorities Continued

Page

Morean v. Board of Education 42 N.J. 237,200 A.2497 4%

NAACP v. Allen, 340 F. 703 (N.D. Ala.) .......- 42

Nizon v. Herndon, 273 U.S. 596 2.00 cece cece cceene 26

Offermann v. Nitkowski, 378 F.2d 22 (CA 2) .......-- 45

Officers for Justice v. Civil Service Comm. of San Fran-

cisco, 42 U.S.L.W. 2308 (D.N.CaL) .......-+++-- 42

Oregon v. Mitchell, 400 U.S. 112 «200.0 e cece eens 36, 56, 67

v. California, 332 U.S. 633 .......2-eeeeeeee of

v. Ferguson, 163 U.S. 537 22... cee cee cceee 22, 27

Porcelli v. Titus, 431 F.2d 1254 (CA 3) ....---+-+---- 5

San Antonio School District v. Rodriguez, 411 U.S. 1. . 32-33

hter-House Cases, 83 US. WG oo. occ cece ccc eenee 33

v. Massachusetts, 291 U.S. 97 00. e eee ee cees 2}

South Caroline v. Katzenbach, 383 U.S. 901 ........ 56-57

Southern Illinois Builders Ass’n v. Ogilvie, 471 F.2d

GE TERA FD oo ins dvcetctecostecivecceocctecevane 42

Sprt pes Committee v. Barksdale, 348 ¥.2d

( D oclccccdcccnercnvecccedececsbecccece

CPOE EEE EEE EEE HEHEHE HEHEHE

ich. 42

Steele v. Louisville & Nashville R.R. Co., 323 US8.192. 26

Strauder v. West Virginia, 100 U.S. 203 .......... 26, 33

Swann v. Charlotte-Mecklenburg Board of Education,

Ge MRC Ea cece dans dbcdeens coscsccecse 39-44, 55, 57

Sweatt ¢. Painter, 339 U.S. 629.0... cece cece eeeeeeee 52

Tancil v. Woolls, 379 U.S. 19 2.00.6 e cece cee ccccrees

——— Br Board of Education, 39 Ill. 2d 593, 237 N.E.

United States +. Carolene Products Co.,W4US8.144.. %

United States v. lron Workers, Local 86, 443 F.2d 544

(CA 9), cert. denied, 404 U.S. 984 .........-.. 41, 43

United States v. Jefferson County Board of Education,

372 F.2d 836 be 7} ah aden aaanadsae ee ¢

United States v. nion No. 212, Int’l Brother-

hood of Electrical Workers,472¥.24634(CA ). 42

United States v. Montgomery County Board of Educa-

SD GE cliehoedcnrbens tcener> evenee 39-44

United States v. Sheet Metal Workers International

Ass'n, Local No. 36,416 F.2d 123 (CA 8) ........ 41

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

national Union, Local No. 46, 471 F.2d 408 (CA 2),

cert. denied, 41 U.S.L.W. 3645 ..... 0.0 c cece ccee 42

Table of Authorities Continued v

Page

Wanner v.C School Board, 357 ¥.2d 452(CA4). 45

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164... 37

Weiner v. Cuyahoga Community College District, 19

2d 9, 249 N.E.

Ohio ~ PTs co ceed cWHRKE 42

Yick Wo v. Hopkins, 118 US. 356 ............+-. 26, 34, 58

Younger v. Harris, 401 U.S. 37.0... cece cece e cece eens 43

Statutes awp Ouvers:

Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000(d).. 2

Civil Rights Act of 1964, Title VII, 42 U.S.C. mer

Wah, Calin, SE, BROe cc cccccasdocaccvsossssiasen 36

Presidential Executive Order 11246, 30 F.R. 12319, as

amended, 32 F.R. 14303; 34 F.R. 12985 ...... 41-43, 60

Ornuern AUTHORITIES :

Bickel, The Original Understanding and the Segrega-

tion Decision, 69 Harv.L.Rev.1.........-.++++.: 33

Rade MOOD. bvccic 0bbebbbho bbbswbssS S 1¢4bRdE sae 50

— ae In a 0 oe oor aval

a Changing Court: or a Newer

Protection, 8 Harv. L. Rev.1...............+.. 36

Morris, Equal Protection, Affirmative. Action and

Racial Preferences in Law Admissions: DeF unis v.

ry ee Oe We EG DEE Ob po deccoccccsebicss 51

O'Neil, Preferential Admissions: Equalizing Access to

Legal Education, 1970 U. Tol. L. Rev. 281 ........ 50

Rosen, Equalizing Access to Legal Education: Special

Programs for Law Students Who Are Not Admis-

fog by Traditional Criteria, 1970 U. Tol L. Rev.

D ce ccccnses cbeotedsbsssideberséndcteatinees 51

Thayer, The Origin and Scope of the American Doc-

trine of Constitutional Law,7 Harv. L. Rev.129.. 35

A. oo Democracy in America (Vintage

IN THE

Supreme Court of the United States

Ocroser TERM, 1973

No. 73-235

Mazco DeF unis, eT AL., Petitioners,

CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITY OF

WASHINGTON, ET AL., Respondents.

On Writ of Certiorari to the Supreme Court of Washington

BRIEF AMICI CURIAE

For the National Council of Jewish Women: the Union of

American Hebrew Commission on Social

the International Union, American Federation of State,

| versity of Notre Dame Center for Civil Rights: and

the Children’s Defense Fund of the Washington Re-

search Project, Inc.

INTRODUCTION

We present this brief in support of the respondents

with the consent of counsel for both the petitioners and

the respondents.

We rely on the respondents’ treatment of this Court’s

jurisdiction, of the opinions below and of the constitu-

tional and statutory provisions involved.

Whether the Fourteenth Amendment of the United

States Constitution forbids a discretionary admissions

process whereby a State University Law School affirm-

atively seeks qualified students from racial minority

groups, when such groups have long been victims of

racial discrimination and had only token membership

in the Law School and the legal profession.’

INTEREST OF AMICI

Amici—in the area of religious, labor union, univer-

sity affairs, and civil rights as well as in the area of

public policy—have a long standing involvement with

issues of equal opportunity.

The Commission on Social Action, long dedicated to

the promotion of equality of opportunity, is a joint

1 The constitutional question is the only one properly before this

Court. The question under Title 42, U.S.C. 2000(d) was not pre-

sented to the trial Court in this case; thus it was not considered

by the Supreme Court of Washington; and thus it may not be

considered by this Court. See the Respondents’ ‘‘ Motion of Dis-

missal of Appeal or, in the alternative, Affirmance of the Judg-

ment Below and Statement in Opposition to Certiorari,’’ at page

2, footnote *.

Even if the question under Title 42, U.S.C. 2000(d) were prop-

erly before this Court, the claim of petitioners would have no

merit. The statute must be interpreted in light of the Depart-

ment of Health, Education and Welfare Regulations drawn to

enforce it. Lau v. Nichols, 42 U.S.L.W. 4165. Those regulations

quite plainly approve aifirmative admissions policies such as that

adopted by the University of Washington Law School. See 38

F.Reg. 17,979; § 80.3(b) (6) (ii).

instrumentality of the institutions of Reform Judaism

in America, including the Union of American Hebrew

Congregations and the Central Conference of Amer-

ican Rabbis. The UAHC is the central body of Re-

form Judaism, serving 710 synagogues throughout the

country with a membership of approximately one mil-

lion persons.

The National Council of Jewish Women was estab-

lished in 1893 and has consistently maintained an in-

terest in civil rights. It is one of the organizations that

has strongly supported civil rights legislation and is

continuing to monitor the enforcement of the civil

rights laws.

The UAW is the largest industrial union in the

world, representing approximately a million and a half

workers and their families. Including wives and child-

ren, UAW represents more than 414 million persons

throughout the United States and Canada. The VAW,

which is deeply committed to equal opportunity and

anti-discrimination, does much more than bargain for

its members. It is active in civic affairs and citizen-

ship and legislative activities. It is by mandate of its

Constitution and tradition deeply involved in the

larger issues of the quality of life and the improvement

of democratic institutions. The questions presented by

this case vitally affect the UAW and its members.

The United Mine Workers of America is a labor or-

ganization representing coal miners. Throughout the

United States the UMWA haa historically been in the

forefront of the nation’s struggle for equal opportu-

nity employment and is dedicated to the principle of

equal opportunity in every walk of American life.

The International Union, American Federation of

State, County and Municipal Employees, AFL-CIO, is

a labor organization with a membership of more than

650,000 persons, almost all of whom are employed by

state and local governments throughout the nation.

AFSOME is deeply concerned about the achievement

of equality in America. Its members, as public em-

ployees both white and black, are committed to the

principle of affirmative action and are particularly

conscious of the importance of affirmative action to-

ward equal opportunity by public institutions.

The United Farm Workers of America is an unin-

corporated association which functions as a trade union

on behalf of farm workers. In addition to its interest

in wages, hours, and working conditions, it is vitally

interested in the social betterment of its members and

particularly in their obtaining higher educational op-

portunities.

As a means to assure the equality of opportunity in

the professions and career pursuits in our society, the

Massachusetts Institute of Technology is committed,

through its student recruitment policies and through

its educational program, to increasing the interest,

preparation and availability of minorities for careers

in seience and technology.

Robert C. Wood is President of the University of

Massachusetts, a public, state-supported educational

institution of 30,500 students with campuses at Am-

herst, Boston and Worcester, Massachusetts. Dr.

Wood was formerly Under Secretary and Secretary

of the United States Department of Housing and Ur-

ban Development, and was also Director of the Joint

Center for Urban Studies of M.I.T. and Harvard. As

a University President, Dr. Wood now has had special

experience with, and concern for, efforts to ensure

equal opportunity in the admissions process.

The United Negro College Fund, Inc., is an organ-

ization consisting of 41 member colleges, all but one of

them in the South, which was established in 1944 to

raise funds and provide other assistance to member

colleges. The Fund is vitally concerned to ensure

equality of opportunity in admissions to graduate and

professional schools.

The Americans for Democratic Action, founded in

1947, is an organization of individuals that has devoted

itself to the cause of civil rights for all. Over the past

two decades, it has worked for the enactment of civil

rights legislation and for the promotion of equal op-

portunity through every branch of government.

The Center for Community Change, incorporated in

1968, is a District of Columbia non-profit corporation.

Among its purposes are activities aimed at ‘‘improve-

ment of the condition of the poor, the underprivileged

and the alienated.’’ The Center’s work with dozens of

community organizations representing minorities has

made it aware of the effects of past discrimination and

the need for affirmative actions to aid its victims.

The Center for National Policy Review on race and

urban issues is a public interest law center located at

Catholic University Law School and supported by

foundation grants. Since 1970, the Center has pro-

vided assistance to civil rights and other public inter-

est organizations seeking fair and vigorous implemen-

tation of Federal laws designed to protect the rights

and interests of racial minorities. The Center’s help

takes the form of research, technical assistance and

legal representation in rule-making or other Federal

agency proceedings. In employment, education, hous-

ing and other areas the work of the Center has been

directed toward the adoption by Federal agencies of

affirmative action policies to undo the effects of past

racial discrimination. The Center also maintains a

legal intern program where students from several law

schools have an opportunity for practical as well as

academic involvement in civil rights issues. This pro-

gram and the overall objectives of the Center have

benefitted substantially from the participation of

minority law students.

The Japanese American Citizens League (JACI)

is a national organization comprised of 96 local

chapters with over 27,000 members in 32 states. Since

its official organization in 1930, JACL has been dedi-

cated to the promotion of the welfare of its members

and to the broader goal of the protection of the rights

of all Americans. Having suffered through one of

the most intense periods of discrimination in the mod-

ern history of the United States—the exclusion of

over 100,000 persons of Japanese ancestry from the

West Coast during World War II—Japanese Ameri-

cans are acutely aware of the potentially invidious

and unjust consequences of governmental programs

based exclusively upon race. However, JACL is

joining in this brief because it believes that it is im-

perative that affirmative efforts be made to increase

educational opportunities for individuals who are dis-

advantaged in our society because they are members

of minority races that have been traditionally dis-

criminated against and denied access to the advantages

of American society.

The National Urban Coalition is an organization

whose purpose is to improve opportunities and condi-

tions of life for citizens living in urban areas of the

nation. Founded in 1967, it has 32 affiliated local

coalitions and representation from corporations,

unions, religious, and civil rights organizations. The

improvement of educational opportunity is among its

prime purposes and to that end it has sponsored edu-

cational research and participated as amicus curiae

in cases involving the equal distribution of educational

resources.

The National Urban League, Inc., is a charitable

and educational organization organized as a not-for-

profit corporation under the laws of the State of New

York. For more than 63 years the League and its

predecessors have addressed themselves to the prob-

lems of disadvantaged minorities in the United States

by improving the working conditions of blacks and

other minorities, by fostering better race relations and

increased understanding among all persons, and by

implementing programs approved by the League’s

interracial board of trustees. The League has con-

cluded from its experience in manpower training,

placement of minority professionals, and other em-

ployment related programs that special measures are

usually required to overcome the damage done by

long-term racism and prejudice. The selection

process used by the University of Washington Law

School to ensure reasonable representation of minori-

ties among its students and, ultimately, the legal pro-

fession is consistent with the methods and goals of

the League to purge society of the effects of discrimi-

nation. The League joins in this brief in the belief

that it will further its long-standing goals.

The Southern Christian Leadership Conference

was established in 1958 by Dr. Martin Luthern King,

Jr. In the ensuing years, SCLC has taken a prom-

inent role in support of evil rights, both in the South

and throughout the nation. It is committed to equal

opportunity in education at all levels, including

graduate and professional schools.

The University of Notre Dame Center for Civil

Rights was established in 1973 to continue in the pri-

vate sector the commitment toward achieving equality

for all Americans which the Reverend Theodore M.

Hesburgh, ©.8.C., President of the University, pur-

sued for fifteen years as a member and then Chairman

of the United States Commission on Civil Rights.

The Center for Civil Rights is a resource for research

into the United States’ recent civil rights history; it

engages in analysis of current civil rights issues, and

it attempts to recommend viable solutions to civil

rights problems. The Center is intimately familiar

with the history and current extent of discrimination

in this country and the legal and moral issues involved

in eradicating this blight. The Center, moreover, is

associated with a major university and is directly in-

terested in ensuring that universities retain the ad-

ministrative flexibility to undertake effective affirma-

tive action to enroll and educate minority group stu-

dents. It regards this case as probably the most im-

portant civil rights case to reach this court since

Brown v. Board of Education. The following mem-

bers of the Advisory Council of the Center for Civil

Rights join in support of this brief: Reverend Theo-

dore M. Hesburgh, Chairman; Berl I. Bernhard,

partner in law firms in Washington, D.C., New York

and former Staff Director of the U.S. Commission on

Civil Rights; Marian Wright Edelman, Director of

the Children’s Defense Fund; Oscar Garcia-Rivera,

Professor, Hofstra Law School and Chairman of As-

pira of New York, Inc.; Earl G. Graves, Earl G.

Graves Publishing Company; M. Carl Holman, Presi-

dent, National Urban Ooalition; Kenneth Keniston,

Professor, Yale University; Burke Marshall, Deputy

Dean, Yale Law School; William May, Chairman of

the Board, American Can Company; Grace Olivarez,

Director, Institute for Social Research and Develop-

ment, University of New Mexico; William L. Taylor,

Center for National Policy Review and former Staff

Director, U.S. Commission on Civil Rights; Professor

Lester C. Thurow, Massachusetts Institute of Tech-

nology; Harris Wofford, President, Bryn Mawr Col-

lege; and Howard A. Glickstein, Director of the Cen-

ter, and former General Counsel and Staff Director of

the U.S. Commission on Civil Rights.

The Children’s Defense Fund of the Washington

Research Project, Inc., was established in 1968. Its

principal aim is to assist in achieving equality of op-

portunity for all citizens through litigation and

negotiation and monitoring of administrative agency

programs. The Project has long been deeply con-

cerned with educational issues, particularly with al-

leviating the continuing effects of racial discrimina-

tion in public schools. It has conducted a number of

studies of federal desegregation policies and the im-

pact of federal aid to education programs, relating to

higher education as well as primary and secondary

education, to ensure that the national commitment to

end discrimination is fulfilled. In 1973, the Project

complemented these efforts with a broader focus on

children’s rights, seeking systematic reforms on be-

half of all the nation’s children, but with special at-

tention to the special problems of minority and poor

children. The Project’s work to vindicate the rights

of all children depends, first, on eliminating the ves-

tiges of discrimination against particular children at

all levels of public education.

sv44i)e]

jena |

on , k

Pb He ME aT

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came away ‘‘satisfied’’ with the Law School's ye eid

Law School

FERzES3

gay

sit A

. Rather, it is a University-

siding; hat ve gultiaes oh Oubveeditste ih over

its

ad-

(St. 221.) After a review of the

.”’ (4. 222.) President Odegaard testified

adie dil a Se a Fates

versity of Washington in 1958 he encountered a

missions], and there were references, also, to racial

committing itself to an entirely ‘“non-discriminatory”’

admissions policy, ‘‘what I suppose you would call an

‘elaim of religious discrimination [in University

problem, the University issued a general statement

amen Charles Odegaard testified about

[{diserimination].”’

that ‘‘most of us, at the time, felt that the University

was clear and was sufficient as it was announced

al!

;

‘

every institution of the society. President Odegaard

testified :

[MJore and more as we dug into this, we began

legal realize that there can be a resumption of

pana Pyro or procedural equality at the Uni-

versity but, in [there are] cultural conditions

[i.e. o resent effects of past discrimination]

; ch Soler certain persons from acquiring

the ‘backgrounds necessary to move into more re-

sponsible roles in American life.

So that was the beginning of a growing aware-

ness that just an _-n-door sheer equality in view

of the cultural circumstances t produced

something other than equality, &. not enough;

that some more positive contribution had to be

made to the resolution of this problem in Ameri-

can life, and something had to be done by the Uni-

versity of Washington.

Meanwhile, in the United States of America,

there was developing, also, an awareness that

something more was needed, and I think the lan-

guage e didn’t think it up in the beginning—

think it is now the national parlance, ‘affirma-

tive action’.

(St. 223-225.) In 1965 the faculty committee issued

its report recommending a more affirmative policy to

remedy the exclusion of minorities from the Univer-

sity. (St. 228.)

Between 1965 and 1968 the University began to in-

stitute its new policy. In cooperation with the fed-

eral Upward Bound Program, the University brought

minority “‘high school students . . . to the campus for

eight weeks’ special classes.’’ (St. 228.) Many stu-

dents ‘“‘were admitted to the University on the basis

of what was learned about them, even though, in some

instances, their previous academic records would not

have suggested that they were within the conventional

limits. .. . [S]o there was the beginning of more dis-

cretionary admission in the sense of taking into ac-

count ... data gained by larger measures of personal

contact [with minority applicants], awareness of

{their} history, [their] motivations and [their] atti-

tudes... .’’ (St. 229.)

Cc.

The University-wide policy toward racial minorities

was adopted by the Law School. The minority groups

to which the Law School applied its policy were “Black

Americans, Chicano Americans, native Americans, or

Indians, and Philippine Americans.”’ (St. 351.)

The basis of the selection was that these racial minori-

ties had been subject to pervasive discrimination in

America and had had only token membership in the

Law School and the legal profession previously; Asian

Americans (other than Philippine Americans) were

not included because of the “‘large number of Asian

American applications and the significant number that

had been accepted in the process of simply the or-

dinary review of the files.’”’ (St. 352.)

The minority policy did not represent a sharp break,

in method, with the admissions policy applied to other

applicants:

“‘The policy recognized there was need for [a]

large policy of discretion in review of individual

cases .... That is not something new in the Uni-

versity; the University has always pursued a

policy of, in addition to using the conventional

credentials, to recognize there may be other in-

formation about a candidate which suggests he

should or should not be admitted. This is true

for conventional white students, as well as stu-

dents from minority backgrounds.”’

(St. 241.)

The Law School advised applicants that admis-

sions—for minorities and non-minorities alike—were

based on considerations other than just grades and

test scores. In addition to grades and scores, the

School asked them to submit personal recommenda-

tions from the Dean of Students or other official of

their college, from a faculty member in their major

subject, and from anyone else they might wish. (St.

338-339.) And the School specifically stated that appli-

cants would be evaluated ‘‘on the basis of their ability

to make significant contributions to law school classes

and to the community at large.’’ 507 P.2d 1169, 1173.

The School’s Admissions Committee treated grades

and test scores as important, but as only two of

several factors, within a ‘“‘discretionary’’ process

applied to all applications. Initially, it did rank appli-

cations into three categories according to their Pre-

dicted First Year Averages (P.F.Y.A.), a figure based

only on the grades and scores. But this categorization

alone did not determine acceptance or rejection.

The Admissions Committee reviewed applications

showing a P.F.Y.A. over 77 or below 74.5 soon after

they came in.* Even then, however, it considered much

* The full Admissions Committee reviewed applications in the

top category ‘‘in groups of 25 or 30’’ as they were received during

the year. (St. 340.) It ‘‘delegated’’ to its Chairman, Professor

Richard O. Kummert, the responsibility to make a preliminary

review of applications in the bottom category. (St. 340-341.) The

“‘delegation”” to the Chairman ‘‘did not run to those files pre-

sented by minority students’’ in that category. ‘‘ Essentially,

the committee reserved to itself consideration of all minority files.’’

And all minority applications below the top category were deferred

for full review later on, in May. (St. 341.) See text below.

more than the applicants’ P.F.Y.A.’s. There was no

automatic decision based on aumerical criteria. The

Committee gave advance acceptance to most in the top

numerical category. But it also ‘‘deferred judgment

on a number of these files.’’ (St. 340.) It sent an ad-

vance rejection to many in the bottom numerical cate-

gory. But in many ‘“‘cases of doubt’’ showing quali-

fications beyond mere grades and scores it deferred

these files, too, for later consideration. (St. 342.)

The Committee kept the middle category of applica-

tions—along with those deferred from the top and

bottom groups—for evaluation in May. (St. 242.) At

the time, it closely examined the applicant’s qualifica-

tions,* including many non-grade-and-score considera-

tions such as personal qualities, recommendations, com-

munity activities and past experiences. (St. 271, 278-

287, 303). On this basis, the Committee finally deter-

mined which applicants to accept, which to reject and

which to put on a waiting list.

The Committee subjected the applications of racial

minority students to the same kind of ‘‘discretionary”’

process of evaluation. In fact, it deferred all minority

applications, showing P.F.Y.A.’s below 77, for review

in May. (St. 341.) And in May, it considered all of

‘Initially, as to the main body of ‘‘deferred’’ applica-

tions, the files ‘‘were divided and distributed among the committee

members, essentially at random.’’ (St. 344). The individual mem-

bers reviewed the files assigned to them, then discussed them with

the full Committee, and the full Committee ‘‘debated’’ about them

and sought to reach a general ‘‘consensus’’ on each one. (St. 347.)

Although minority applications were also considered by the full

Committee, the administrative procedure applied to them at the

initial stage was somewhat different. See footnote 5 below.

them together at one meeting.’ (St. 353.) At that

meeting, it put the applicants’ P.F.Y.A.’s as well as

their non-grade-and-score qualifications into the bal-

ance. In many cases, to be sure, it weighed these fac-

tors somewhat differently for minority applicants, giv-

ing somewhat more emphasis to non-numerical qualifi-

cations. The Dean of the Law School, Richard Roddis,

testified that, ‘‘as to certain minority groups, the [ad-

missions] committee evaluate[d] the qualifications of

applicants separately and I think with less emphasis

on the undergraduate grade point averages and the

L.S.A.T. scores than they [did] with respect to the

applicants of the majority groups.’’ (St. 70-71.)

The Committee, however, did not abandon its basic

standards in admitting minority applicants. (St. 241.)

Rather, it continued to examine each one for his or her

‘probability of succeeding in law school.”’ (St. 353.)

For the policy was to give non-grade-and-score factors

more weight only to the extent that ‘‘there is some-

thing in the record of [the] individual which suggests

that he has the motivation and capacity ...to...move

out of the University at the same level or degree that

all other students do....”’ (St. 242.)

The Committee’s exclusive focus, then, was on the

overall qualifications of minority applicants. It did

not have to meet any ‘“‘quota.’’ Rather, the Law

. School’s policy was based simply on a hope that,

5In May, the files of minority applicants were assigned, for

initial review, to two Committee members with special experience

and expertise in evaluating applicants with minority backgrounds.

(St. 352.) These two members then discussed the minority appli-

eations with the full Committee, and the full Committee ‘‘debated”’

about them, as it also did with respect to non-minority applications.

See footnote 4 above.

through additional efforts, it could find a ‘‘reasonable’’

number of qualified minority students, to remedy their

unreasonable absence from the School in the past.

(St. 353, 416, 420.) The number actually admitted thus

depended on the qualifications of the individual appli-

cants. The undisputed testimony of University officials

at the trial in this case was that every minority student

admitted was, indeed, qualified for law study. (St. 73,

233-234, 245, 399, 420.)

University officials recognized that some minority

students chosen by the Admissions Committee pre-

sented a somewhat higher risk than some other stu-

dents. But they felt that such relative risks were a

normal part of the Law School admissions process,

which explicitly based all admissions decisions in large

part on a ‘‘discretionary’’ evaluation of non- e-

and-score considerations. (St. 234, 418, 423.)

The discretionary’’ nature of the Law School’s ad-

missions process—toward minority and non-minority

applicants alike—was clearly revealed in the make-up

of the group offered admission in 1971. Because the

School did not judge any applications by college grades

and test scores alone, many applicants were offered

admission who had lower grades and/or scores than

the unsuccessful applicant, DeFunis. The majority of

them were non-minoriiy students. Specifically, the

Superior Court found that 38 admittees with lower

P.F.Y.A.’s than DeFunis were from non-minority

groups, while 36 were from racial minority groups

(Finding XVI.)*° Thus about one-quarter of the 300

applicants offered admission were ‘‘below”’? DeF unis

* Six of the minority students offered admission had P.F.Y.A.’s

higher than the Petitioner’s.

in terms of purely numerical criteria. Plainly, the

Admissions Committee gave significant weight to non-

numerical qualifications, and it did so in the cases of

non-minority applicants just as in the cases of minority

applicants.

Finally enrolling at the Law School in the Fall of

1971 were somewhat over 150 students. Among their

number were 18 minority students. (Finding XVI.)

Also among their number, pursuant to the court order

in this case, was Marco DeF unis.

SUMMARY OF ARGUMENT

This case presents an issue far different from those

presented in past ‘‘race cases’’ before this Court. For

the University of Washington Law School takes cog-

nizance of race not in order to burden racial minorities,

but to remedy the effects of past discrimination against

such minorities. The Fourteenth Amendment was

never intended to frustrate such remedial efforts.

For this reason, it would be entirely inappropriate to

apply the presumption of unconstitutionality, usually

applicable to other forms of ‘‘racial classification,” to

this case. This Court has employed such a presump-

tion only in cases involving the stigmatization or

inferior treatment of an isolated minority group. The

Court has not employed the presumption of unconsti-

tutionality when, as in this case, a racial classification is

used to remedy past discrimination.

Moreover, the Court should be particularly cautious

in interfering with the Law School admissions process

here, because the School’s policy to remedy past de

facto exclusion of minorities was voluntarily adopted.

Our principles of federalism counsel judicial restraint.

This case, therefore, should be subjected to a test of

‘‘reasonableness’’—a test strong enough to prevent

‘‘peverse discrimination,’’ but flexible enough to allow

efforts by State and local government authorities to

remedy the effects of past discrimination. Under that

test the University of Washington Law School’s admis-

sions policy toward minorities was surely constitu-

tional.

The School’s decision to initiate the policy was based

on a reasonable perception of the problem of effective

exclusion of minorities in the past. The policy was

reasonably designed to solve the problem; and it was

well within the limits of the School’s proper educa-

tional concerns.

The scope of the School’s policy was eminently rea-

sonable. It was not a ‘“‘quota.’”’ Rather, it involved

only the weighing of individual minority students’

qualifications within a traditionally discretionary ad-

missions process. The School gave somewhat more

weight to qualifications other than college grades and

test scores in the cases of minority applicants. But,

importantly, it carefully weighed such qualifications in

the cases of all applicants, minority and non-minority

alike; it did not judge any applicants: by grades and

test scores alone. Moreover, the basic standard of

qualification for law study applied to minority appli-

cants was no different from that applied to others;

every minority student finally admitted was considered

fully qualified.

Thus the University of Washington Law School’s

minority policy was a moderate one, involving only dis-

tinctions of degree within an overall process character-

ized by subtle considerations of personal qualifications

in every application.

ARGUMENT

lL. THE APPLICABLE LAW: A TEST OF “REASONABLENESS”

This Case Presents a New Issue in the Law of “Racial Classi-

The University of Washington Law School admis-

sions process takes cognizance of race. But this is

no ordinary ‘‘race case.’’ Indeed, in the common sense

of the term, this is not a “‘race case’’ at all. This case,

rather, presents an issue of first impression.

For years, the Court has interpreted the Constitu-

tion to condemn the longstanding subjugation of racial

minorities in America. It has confronted countless

racial classifications used to perpeutate that heritage.

But it has almost never confronted a classification

used for just the opposite purpose. For the first

time now the Court faces a voluntarily-adopted pro-

cess attacked as favoring, rather than harming, a racial

minority ; a process used to bring the races together, not

to set them apart; a process designed, most impor-

tantly, to remedy the present effects of past discrimina-

tion, not to further entrench them.

To be sure, many of this Court’s past decisions have

condemned ‘‘racial classifications,’’ and even presumed

them unconstitutional, in very general terms.’ But

that sweeping language should not be applied in this

7 As early as 1896, for example, the Court said that ‘‘the Con-

stitution of the United States. . . forbids . . . discrimination

by the General Government, or by the States, against any citizen

because of his race.’’ Gibson v. Mississippi, 162 U.S. 565, 591.

And, in dissent in a contemporary case, Justice Harlan insisted

that the Constitution is ‘‘colorblind.’’ Plessy v. Ferguson, 163

U.S. 537, 552. Such language might appear on its face to condemn

case if it is not applicable in the changed circumstances

here. This point was overlooked by both of the courts

below.

Both courts read the broad language in past deci-

sions to require inevitably that any and all considera-

tion of race be presumed unconstitutional. The King

County Superior Court flatly held that no racial clas-

sification can ever be constitutional. ‘‘[T]he Four-

teenth Amendment [can] no longer be stretched,’’ it

said, ‘‘to accommodate the needs of any race.’”’ Un-

reported opinion quoted in DeFumis v. Odegaard, 507

P.2d 1169, 1178. The Washington Supreme Court

properly rejected the idea that consideration of race

is unconstitutional per se.® Id. at 1179-1181. But it

read language in past decisions holding ‘‘racial clas-

sifications’’ presumptively unconstitutional to apply

to all racial classifications. It reversed the decision

of the Superior Court only by holding that the pre-

all racial classifications, of whatever type, used for whatever

purpose.

More recently, using no less sweeping language, the Court has

subjected racial classifications to a test with extraordinary force

At first, under the Due Process Clause, it stated that ‘‘all legal

restrictions which curtail the civil rights of a single racial group

are immeliately suspect ... [and] courts must subject them to

the most rigid serutiny.’’ Korematsu v. United States, 323 U.S.

214, 216. See also Bolling v. Sharp, 347 U.S. 497, 498. Then,

under the Equal Protection Clause, the Court stated that ‘‘racial

classifications [are] ‘constitutionally suspect’’’ and are permis-

sible only if they are shown to be ‘‘necessary’’ for some ‘‘over-

riding purpose.’’ McLaughlin v. Florida, 379 U.S. 184, 192, 196.

See also Loving v. Virginia, 388 U.S. 1, 10-11.

®*The Court has explicitly stated that racial classifications are

not unconstitutional per se. Hirabayashi v. United States, 320

U.S. 81, 100; Korematsu v. United States, 323 U.S. 314, 216, 223:

See McLaughlin v. Florida, 379 U.S. 184, 196; Loving v. Virginia,

388 U.S. 1, 11. See also Lee v. Washington, 390 U.S. 333.

sumption could be overcome in this case by a ‘‘com-

pelling’’ justification. Jd. at 1181-1185.

Both courts erred in their over-reading of the law.

Broad language in past opinions need not necessarily

govern decision in another case, with substantially dif-

ferent facts. See, e.g., Kirby v. Illinois, 406 U.S. 682.

Holdings are holdings; dicta are dicta; and the two

must be distinguished. Or so this Court has always

said. See, e.g., Harris v. New York, 401 U.S, 222, 224.

Thus it is not inevitable that all consideration of race

must be treated as the same.’ It is not inevitable that

all ‘‘racial classifications’’ must be treated as ‘‘suspect”’

or presumed unconstitutional. A new type of racial

classification, different from those considered in the

past, used for < different purpose to deal with a dif-

ferent set of practical difficulties, requires new con-

sideration under the language of the Constitution, not

simply under the language of previous court decisions.

The seductive power of sweeping words crafted for

particular situations is no doubt great. As Mr. Justice

Cardozo emphasized in a biting criticism of Fourteenth

Amendment interpretation in the heyday of ‘‘sub-

stantive due process,’’ it is a seduction that can lead

courts astray. ‘‘Out of the vague precepts of the

Fourteenth Amendment,’’ Cardozo wrote, ‘‘a court

frames a rule which is general in form, though it has

been wrought under the pressure of particular situa-

tions. Forthwith another situation is placed under the

rule because it is fitted to the words, though related

faintly, if at all, to the reasons that brought the rule

into existence.’’ Snyder v. Massachusetts, 291 U.S.

97,114. This seduction can be resisted in the present

* It is pointed out in Section ‘‘D’’ below that the Court has not

treated all racial classifications as the same or subjected them

all to review as ‘‘suspect’’ classifications.

0 eC werre

case if it is recalled that: ‘‘Equal protection, not color

blindness, is the constitutional mandate, and the expe-

rience with liberty of contract should caution against

an absolute legal criterion that ignores practical real-

ities.’’ Freund, Constitutional Dilemmas, 45 B.U.L.

Rev. 13, 20.

The practical reality of this case is that race was

considered by the Law School not to reinforce the

heritage of discrimination, but to remedy its debili-

tating effects. The Fourteenth Amendment is designed

to root out just that heritage. It is not designed to

frustrate reasonable efforts, by other governmental

bodies, to do the same.

An inquiry into the limitations of past decisions, re-

markable for their apparent breadth, is therefore, in

order.

The Key to the Past Cases, In Which the Court Has Struck

Down Racial Classifications and Presumed Them Uncon-

stitutional, Has Been an Element of Inferior Treatment

or Stigmatization of a Racial Minority by the Majority.

The Sweep of Those Decisions, Therefore, Is of Limited

Scope—Falling Short of the Present Case.

The racial classifications, which the Court has held

unconstitutional in the past, have shared one char-

acteristic: they were classifications used to stigmatize

or accord inferior treatment to racial minorities, *°

©The term minority is used here, and throughout the rest of

this brief, as a term of art. It denotes more than a mere ‘‘nu-

merical minority.’’ For a racial group with a numerical majority

in a particular area may nonetheless be a ‘‘functional minority.’’

It, in other words, may have the functional attributes of the most

isolated and victimized minority: it may be relatively powerless,

subjected to past and present discrimination by those who hold

power, and set apart both physically and psychologically. That,

indeed, has long been the condition of the black ‘‘minority’’ in

America—and no less so in areas where blacks were in a numerical

majority. See footnote 18 below.

IRPTA LOYD SGT le StS i

long subject to racial discrimination in America. The

past cases, in other words, involved discrimination

against already-victimized racial minorities.

These racial classifications, held unconstitutional,

have been of three types. Progressively, in these

cases, the element of inferior treatment or stigmatiza-

tion of a racial minority has been less and less obvious

on the surface. But, progressively, the Cvuurt has

searched out that element beneath the surface and

struck down the classifications.

(1) In many of the early cases, the inferior treat-

ment of a racial minority was explicit and clear. E.g.,

Strauder v. West Virginia, 100 U.S. 303 (blacks for-

bidden to sit on juries); Nixon v. Herndon, 273 U.S.

536 (blacks barred from voting in Democratic pri-

maries). See Steele v. Louisville & Nashville R.R.

Co., 323 U.S. 192, 198-199. In many other cases, it

was less explicit, but no less clear. E.g., Yick Wo v.

Hopkins, 118 U.S. 356 (law enforcement directed

solely against Chinese minority); Guinn v. United

States, 238 U.S. 347 (literacy test for voting effec-

tively applied only against blacks through a ‘“‘grand-

father clause’’). The Court held that such inferior

treatment of a racial minority was unconstitutional

not only in itself, but also because it imposed a ‘‘ brand

upon them ... an assertion of their inferiority.’’

Strauder v. West Virginia, 100 U.S. 303, 308. See

Yick Wo v. Hopkins, 118 U.S. 356, 373-374.

The Court’s earliest statement that racial classi-

fications are ‘‘suspect’’ and subject to ‘‘rigid scrutiny”’

was worded generally, but came in a case of this kind:

one that involved the most blatantly inferior treatment

and stigmatization of a racial minority. Korematsu

v. United States, 323 U.S. 214.

PT POP ROLE LISS PSE TOIL EGP LISTE OCI EAI ELL AE SEER OE IRE ES ALD FOE GER

(2) State action designed to keep the races apart

—to segregate them—was, for almost sixty years, left

largely undisturbed on the ground that ‘‘separate but

equal’’ treatment did not constitute inferior treatment

of the racial minority." E.g., Plessy v. Ferguson, 163

U.S. 537. But in Brown v. Board of Education, 347

U.S. 483, the Court brought segregated treatment

within the ban on inferior treatment. It did so ex-

plicitly on the ground that segregated treatment és

inferior treatment, and therefore unconstitutional.

“Separate educational facilities,’’ it said, ‘‘are in-

herently unequal.’’ Id. at 495. And, again following

the theory of the previous inferior treatment cases, it

said: ‘‘To separate [black school children] . . . solely

because of their race generates a feeling of inferiority

as to their status in the community . . . [T]he policy

of separating the races is usually interpreted as de-

noting the inferiority of the Negro group.” Jd. at

494,

It was in a case of this second sort that the Court

next re-affirmed its earlier statement that racial classi-

fications are ‘‘suspect’’ and subject to strict scrutiny.

Bolling v. Sharp, 347 U.S. 497, 498. Again, this state-

ment was worded generally. But, again, it came in a

narrower context: Bolling was the companion case to

Brown, concerning school segregation in Washington,

D.C., and plainly involving the same elements of in-

ferior treatment and stigmatization of the black

minority.

(3) Finally, the Court has struck down racial

classifications that involved inferior treatment or

™ But see Buchanan yv. Warley, 245 U.S. 50 (striking down,

under the due process clause, a zoning ordinance providing for

the racial segregation of neighborhoods).

GES CELT CPD TE SIE TE RAL EY tel OTE DRO

hol ITP te thal a

stigmatization of a racial minority that was neither

patent on the surface nor accomplished through seg-

regation. In these cases, the Court has at first struck

down the classifications without reference to inferior

treatment or stigmatization, and then later pointed

out these subterranean, but essential, elements.

An early example was Anderson v. Martin, 375 U.S.

399. It dealt with a State statute requiring that a

candidate’s race, whether black or white, be printed

by his name on the election ballot. The Court held

the statute unconstitutional, stating generally that the

state had no right to ‘‘encourage its voters to discrimi-

nate upon the grounds of race.’’ Jd. at 402. But, at

one point in the opinion, it noted that the evil of the

statute was that it specifically encouraged the racial

majority in an election district to discriminate against

the racial minority. Id.

The Court, in later cases of this type, has explicitly

rationalized and followed Anderson as a case involving

the encouragement of inferior treatment of a racial

minority. In one instance, concerning a charter pro-

vision that required any fair housing ordinance to be

approved by referendum, the Court held the provision

unconstitutional and observed:

‘**T Although the law on its face treats Negro and

white, Jew and gentile in an identical manner,

the reality is that the law’s impact falls on the

minority. The majority needs no _ protection

against discrimination and if it did, a referendum

might be bothersome but no more than that. Like

the law requiring specification of candidates’ race

on the ballot, Anderson v. Martin, . [the law

here] places special burdens on racial minorities

RAE DEL ES ST PAIGE EDAD OLA ELIE IE LPF FIO PEREIRA EE OOD DO CLIEIE RE

Hunter v. Erickson, 393 U.S. 385, 391. Thus, once

again, the basis of the Court’s decision—the inferior

treatment or stigmatization of a racial minority—was

clear. ”

It was in cases of this kind that the Court first

stated that racial classifications must be shown to be

‘‘necessary’’ to achieve an ‘‘overriding purpose.’’

The first, McLaughlin v. Florida, 379 U.S. 184, con-

cerned a statute forbidding inter-racial co-habitation.

Its sequel, Loving v. Virginia, 388 U.S. 1, involved a

law forbidding miscegenation. The co-habitation law

was explained by the State as essential to enforcement

of its miscegenation law; it did not patently invoive

inferior treatment of a racial minority as such, and it

did not involve the inferior-treatment-through-segre-

gation struck down in Brown. The McLaughlin

Court held the law unconstitutional as ‘‘unnecessary”’

to achieve the proffered purpose, but it said nothing to

identify the crucial element of stigmatization. Only

when the Court struck down the anti-miscegenation

law, in Loving, did it point to that element. For it

then condemnec such laws as ‘‘measures designed to

maintain White Supremacy.”’ 388 U.S. at 11.

A review of the Court’s racial classification de-

cisions, then, yields one conclusion: the sweeping

doctrinal statements of hostility to ‘‘racial classifica-

12 Significantly, in cases where the inferior treatment of a racial

minority has not been shown, the Court has upheld State action

challenged as discriminatory. Thus it upheld a requirement that

all publicly financed low-cost housing projects be approved by

referendum. It observed that the housing affected would not solely

“be occupied by a racial minority,’’ and it concluded that ‘‘the

record [does not] . . . support any claim that a law seemingly

neutral on its face is in fact aimed at a racial minority.’”’ James

v. Valtierra, 402 U.S. 187, 141.

Bs ape Rh res

tions,’’ putting them in a scparate category under the

Equal Protection Clause, have been crafted to deal

only with classifications used to subject a racial

minority to inferior treatment or stigmatization.

These doctrines, therefore, have no application to

the present case. The University of Washington

policy does not accord inferior treatment to racial

minorities; rather, it is challenged as according them

superior treatment. Nor does the University policy

stigmatize the minorities.

There is some suggestion in an amicus brief sub-

mitted to this Court that the allegedly favored treat-

ment given minority students might be regarded by

some of them as ‘‘paternalistic’’ and thus stigma-

tizing. Brief of Anti-Defamation League of B’nai

B’rith as Amicus Curiae in Support of Jurisdictional

Statement, at 12. But there is absolutely nothing in

the record to support such a conclusion; the Amicus

admits that the “‘record is silent.’’ Jd. In fact, the

record does not even hint at a basis for such a con-

clusion. *

The major premise of the University policy was that

racial minorities were as deserving as anyone else of

a good education and opportunity to assume important

social roles in adult life.* That hardly amounts to

a brand of inferiority. A minor premise of the Uni-

versity policy was that the minority students admitted,

some with lower grades and scores but with motivation

18 Does the amicus seriously suggest that minority students would

prefer to remain excluded from law school? The civil rights or-

ganizations, joining this brief, consider this ‘‘paternalism’’ argu-

ment to be itself highly patronizing and divorced from reality.

14 St. 222-225

and abilities not embodied in numerical labels, could

‘‘move out of the University at the same level or de-

gree that all other students do.’’* That hardly

amounts to a brand of inferiority. To be sure, Uni-

versity officials felt privately that certain minority

students may present more of a ‘‘risk’’ than others. **

But they thought it was a risk worth taking, they saw

a potential in those students for success in law school,

a potential which others might have denied out of

hand. That, again, hardly amounts to a brand of in-

feriority.

The assertion that the University’s policy was

‘*paternalistic’’ and ‘stigmatizing’”’ toward racial mi-

norities is part of an effort to bring this case within

the ambit of the past racial classification cases. But

it is an effort that must fail so long as courts are’ able

to tell actions that brand minorities as inferior from

actions that deny such inferiority.

Because the element of inferior treatment or stig-

matization of a racial minority, central to past hold-

ings, is not present here, those holdings cannot be used

to shift the presumption against the constitutionality

of the racial classification in this case. But it remains

to inquire why classifications should be presumed un-

constitutional only if they so burden a minority group.

15 St, 242.

16 St, 234, 418, 423.

Cc.

The Theory of “Suspectness,” That Shifts the Presumption

Against the Constitutionality of a Classification. Applies

Only to Classifications Used To Burden “Insular” and

Victimized Minorities. Thus the Classification in the

Present Case, Not So Used, Should Not Be Presumed Un-

constitutional.

Stepping back from past decisions on racial classi-

fication to the criteria for ‘‘suspectness’’ of classifica-

tiors generally, the basis and limits of ‘‘strict’’ review

under the Equal Protection Clause become clear.

Lists of the classifications that have been held ‘‘sus-

pect,’’ and presumed unconstitutional, often describe

them in categorical terms. One list includes classifica-

tions ‘‘based on race’’ and ‘‘those based on national

origin, alienage, indigency, or illegitimacy.’’** The

description conveys the impression—shown above to be

ineorrect—that all racial classifications have been held

‘*suspect,’’ or that all classifications based on national

origin, alienage, indigency or illegitimacy have been

presumed unconstitutional.

In fact, the ‘‘suspectness’’ of a classification does

not depend ‘‘per se’’ on the broad characteristic, such

as race or alienage, useu to distinguish people. Rather,

it depends more narrowly on what group is disadvan-

taged by the classifications in question. A classification

is ‘‘suspect’’ only if it is used to disadvantage ‘‘insu-

lar’’ and victimized minorities.

Last Term, the Court made this point and defined the

criteria for ‘‘suspectness’’ quite plainly. In San An-

tonio School District v. Rodriguez, 411 U.S. 1, it set

17 San Antonio School District v. Rodriguez, 411 U.S. 1, 61

(Stewart, J., concurring).

a a ESR ee Ee ee ee Fe ek ee Pe TE

out to determine whether the groups disadvantaged by

a Texas school financing scheme were subjected to

a ‘‘suspect”’ classification. It held that they were not.

For, the Court said, the alleged discrimination had

‘‘none of the traditional indicia of suspectness: the

class is not saddled with such disabilities, or subjected

to such a history of purposeful unequal treatment, or

relegated to such a position of political powerlessness

as to command extraordinary protection from the

majoritarian political process.’’ Jd. at 28 (emphasis

added).

Why is a classification ‘‘suspect’’ only if it dis-

advantages a group subject to a history of discrimina-

tion or held down by special disabilities or political

powerlessness? The answer lies in the history of the

Fourteenth Amendment and in the American doctrine

of judicial review.

First, there is no dispute that the central purpose

of the framers of the Fourteenth Amendment was to

give special protection to one particular group long

subject to discrimination and every form of disability :

blacks. As Professor Bickel has written: ‘‘Everyone’s

immediate preoccupation in the 39th Congress . . . was,

of course, with the hardships being visited on the

colored race.’’ Bickel, The Original Understanding

and the Segregation Decision, 69 Harv. L. Rev. 1, 60.

For many years, this Court stated that special protec-

tion for blacks was the only purpose of the Equal

Protection Clause. E.g., Slaughter-House Cases, 83

US. 36, 81; Strauder v. West Virginia, 100 U.S. 303,

306-307. Later, other purposes and applications were

recognized ; but special protection for the original dis-

advantaged minority remained the ‘‘central’’ purpose.

Gradually, protection was extended to other victimized

groups in positions analogous to that of blacks. See,

e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-374;

Oyama Vv. California, 332 U.S. 633, 644-646. And dis-

crimination against these groups was eventually treated

as ‘‘suspect,’? because most clearly at odds with the

main purpose of the Equal Protection Clause.

Thus when four Justices of this Court argued, last

Term, that sex-based classifications are ‘‘suspect,’’ their

reasoning for the most part applied only to those sex-

based classifications discriminating against women.

The Justices clearly perceived the analogy to blacks as

the historic basis of ‘‘suspectness.’’ ‘‘ [T]he position

of women in our society was,’’ they said, ‘‘in many

respects comparable to that of blacks under the pre-

Civil War slave codes.’’ Frontiero v. Richardson, 411

U.S. 677, 685. They spoke of the Nation’s ‘‘long and

unfortunate history of sex discrimination . . . [that]

put women, not on a pedestal, but in a cage.’”’ Jd. And

they emphasized that even today ‘‘women still face

pervasive discrimination in our educational institutions,

in the job market, and perhaps most conspicuously in

the political arena.’’ Id. at 685-686.

Second, a classification is ‘‘suspect’”’ only if used to

disadvantage a minority group,”* saddled with a history

of discrimination and special disabilities, because of

our democratic doctrine of judicial review. Under this

doctrine, courts generally presume the acts of other,

16The four Justices arguing last Term that discrimination

against women should be ‘‘suspect’’ recognized that women are

not a numerical minority. They reasoned that, functionally,

women are the equivalent of a relaiively powerless minority

group: ‘‘in part because of past discrimination, women are vastly

under-represented in this Nation’s decisionmaking councils.’’

Frontiero v. Richardson, 411 U.S. 677, 686 n.17.

BN i tam a a

popularly controlled, bodies to be constitutional. See

Thayer, The Origin and Scope of the American Doc-

trine of Constitutional Law, 7 Harv. L. Rev. 129. They

do so because most groups, complaining of alleged dis-

crimination, have ample access to the responsible gov-

ernmental bodies and ample opportunity to defend

themselves through the normal political processes. Yet

that is not the case for ‘‘discrete and insular minori-

ties’’—particularly for minorities held down by dis-

abilities resulting from a history of discrimination.

When they are subjected to inferior treatment or stig-

matization, it cannot be assumed that ‘‘the operation

of those political processes ordinarily to be relied upon

to protect minorities’’ provides an effective alternative

to judicial review. Therefore, there is a ‘‘narrower

scope for operation of the presumption of constitution-

ality.”” United States v. Carolene Products Co., 304

U.S. 144, 152-153 n. 4.

Thus when the Court was asked to determine if

classifications based on alienage were ‘‘suspect’’ and

to be presumed unconstitutional, the Court did not hold

that such classifications are ‘‘suspect’’ per se. Rather,

it held that alienage classifications that disadvantage

aliens are ‘‘suspect.’’ It reasoned that aliens—like

blacks—are entitled to special protection, because

‘*Ta]liens as a class are a prime example of a ‘discrete

and insular’ minority . . . for whom such heightened

judicial solicitude is appropriate.’’ Graham v. Rich-

ardson, 403 U.S. 365, 372.

Conversely, when the Court was urged to apply the

‘*strict’’ standard of review to a classification based on

a particular age requirement, the Court refused to do

so, with one opinion noting that the ‘‘establishmen*: of

an age qualification is not state action aimed at any

discrete and insular minority.’’ Oregon v. Mitchell,

400 U.S. 112, 295 n.14.

In the present case, the groups that are allegedly dis-

advantaged by the challenged classification are non-

minority groups. They are groups not subject to past

discrimination, not saddled with disabilities, and not

politically powerless. Special protection by the courts

for them would hardly be within the central purpose

of the Equal Protection Clause. Moreover, the Ameri-

can doctrine of judicial review assumes that they have

ample opportunity to seek a change in the University

policy through the legislative process—and, in Wash-

ington, the popularly elected legislature would have

power to change that policy.” The Court, therefore,

should leave intact the normal presumption that the

policy is constitutional.

That the University policy, and similar racial classi-

fications, are not to be presumed unconstitutional does

not mean that they are automatically permissible. This

Court no longer takes such a two-dimensional approach

to the Equal Protection Clause. While, at one time, it

seemed that ‘‘suspect’’ classifications were automati-

eally invalid, and all others automatically valid, that

time is over. The Court has given ‘“‘bite’’ to the so-

called “‘lenient”’ standard of review. See, e.g., James

v. Strange, 407 U.S. 128; Jackson v. Indiana, 406 U.S.

715; Gunther, Foreword: In Search of Evolving Doc-

trine on a Changing Court: A Model for a Newer

Equal Protection, 86 Harv. L. Rev. 1. Thus non-‘‘sus-

19Washington law provides: ‘‘Except as the legislature shall

otherwise specifically direct, the board of regents and the board

of trustees for the state universities and state colleges shall de-

termine entrance requirements for their respective institutions of

higher education.’’ Wash. Code, 28B, 10.050.

pect”’ racial classifications that are unfair or irrelevant

to a legitimate purpose will be subject to careful consti-

tutional testing, without being presumed unconstitu-

tional.

A holding that the University policy here is not ‘‘sus-

pect,’’ therefore, will not open any floodgates. It will

simply draw a judicious line based on judicial restraint

and strict construction of the Fourteenth Amendment

—a line recognizing that there are limits to the extraor-

dinary exercise of judicial intervention under the

Equal Protection Clause, and that those limits are

determined by the Clause’s ‘‘central meaning.’’

Often, this Court has pointed out that distinguish-

ing among people on the basis of race is usually both

unfair and irrelevant. For to classify individuals

by immutable characteristics—qualities they cannot

change—violates ‘‘the basic concept of our system that

legal burdens should bear some relationship to indi-

vidual responsibility or wrongdoing.’’ Weber v. Actna

Casualty & Surety Co., 406 U.S. 164, 175. See Cassell

v. Texas 399 U.S. 282, 286. ‘‘[R]acial discriminations,’’

the Court has said, ‘‘are in most circumstances irrele-

vant and therefore prohibited.’’ Hirabayashi v.

United States, 320 U.S. 81, 100. See McLaughlin v.

Florida, 379 U.S. 184, 392; id. at 198 (Stewart, J., con-

curring). For those reasons, race-based classifications

will very often be unconstitutional, even under a less

“‘strict’’ standard of review. But what is very often

true is not always true.

The fact that a classification is very often unfair

and very often irrelevant, taken alone, does not justify

the drastic step of presuming it always unconstitu-

tional. Nor does it mean that the classification will

always be found unconstitutional under a less auto-

matic test. There will still be cases in which the classi-

fication is neither unfair nor irrelevant; and it is the

business of the courts to keep an open mind should

such cases arise.

This Court has done so. Where no burden of in-

ferior treatment or stigmatization is imposed on a

racial minority, the Court has not employed ‘‘strict’’

review. And, where the classification has seemed both

fair and well suited to a legitimate purpose, the Court

has left it undisturbed. See, e.g., Tancil v. Woolls, 379

U.S. 19.”

Recently, the Court has held that racial classifica-

tions are permissible in one broad and important cir-

cumstance: when they are used to remedy the present

effects of past racial discrimination. Cf. Louisiana v.

United States, 380 U.S. 145, 154.

In Tancil, the Court affirmed a District Court holding that

allowed a State to require every divorce decree to be labelled

with the race of the parties. Tancil y. Woolls, 379 U.S. 19, affirm-

ing 230 F Supp. 156. This recording requirement was found to

be solely for ‘‘statistical’’ purposes. It probably could not have

p against ‘‘strict’’ review, for a ‘‘statistical’’ purpose

is hardly ‘‘overriding’’ or ‘‘compelling’’ in the usual sense. But

*‘striet’’ review was not applied. The requirement was permis-

sible because it imposed no burden of inferior treatment or stigma-

tization on any racial minority, and it did not seem either unfair

or irrelevant to the State’s statistical interest. See McLaughlin

v. Florida, 379 U.S. 184, 198 (Stewart, J., concurring).

ee ee ne

Two major decisions have concerned racial classifi-

cations used as a remedy for past racial segregation

that had been held unconstitutional. Thus the Court

upheld a District Court order requiring that public

school teachers, once segregated, be reassigned on the

basis of race so as to achieve a minimum ratio of white-

to-black teachers in every school. United States v.

Montgomery County Board of Education, 395 U.S. 225.

The Court did not treat this racial classification as

“‘suspect”’ or apply ‘“‘strict’’? review. Rather, it

approved the classification, emphasizing the District

Court’s discretion, and noting only that the prescribed

racial ratio should not be a rigid one. Later, the Court

upheld an order designed to remedy past segregation of

publie school students by requiring that they be reas-

signed on the basis of race so as to achieve a satisfactory

ratio of white-to-black students in every school.

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1. Again, the Court did not treat the racial

classification as “‘suspect’’ or subject it to “‘strict’’

review. Instead, it approved the classification, again

emphasizing the District Court’s broad discretion, and

saying that the use of racial ratios was a proper ‘‘start-

ing’’ point in the process of shiping a ‘‘remedy”’ for

past school segregation. Id. at 25.

These decisions establish three principles that sup-

port the constitutionality of the University of Wash-

ington policy at issue in the present case.

First, they establish that a racial classification used

to undo the effects of past discrimination is not to be

presumed unconstitutional. For it does not burden—

rather, it relieves the burdens of—a racial minority.

Second, they establish that such a classification is

not unfair, even though based on the immutable trait

of race. For the wrong to be remedied—racial discrim-

ination—itself defined the injured class by that trait.

Third, these decisions establish that such a racial

classification is not irrelevant. What could be more

relevant to undo the effects of discrimination against a

racial group than a remedy directed to that same

group?

This Court’s approval of remedial racial classifica-

tions, then, is based on a principle of realism. One

might hope that the work of the Fourteenth Amend-

ment could be done simply by forbidding discrimina-

tion. But the Court has recognized that, in the real

world, the sears of past discrimination have gone too

deep; and racially ‘‘neutral’’ remedies for discrimina-

tion are too often ineffective. See Green v. County

School Board, 391 U.S. 430; Monroe v. Board of Com-

missioners, 391 U.S. 450. Lower courts have come to

understand and adopt this policy of realism. Color-

blindness ‘‘has come to represent a long-term goal. 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.’’ As-

sociated General Contractors of Massachusetts vy. Alt-

shuler, 42 U.S.L.W. 2320 (CA 1). For now, the Con-

stitution must be ‘‘color conscious to prevent discrimin-

ation being perpetuated and to undo the effects of past

discrimination.’’ United States v. Jefferson County

Board of Education, 372 F.2d 836, 876 (CA 5).

“ ial Oh ae VLE EES Be FUE LES TILE Oe

The Use of Racial Classifications To Remedy the Effects of

Past Discrimination Is Permissible Not Only as a Coercive

Remedy of Federal Courts, or the Federal Congress or

the Federal Executive. It Is Also Permissible as a Volun-

tary Remedy Adopted by State Governmental Bodies—

Including State Universities.

The principles enunciated by this Court in the Mont-

gomery County and Swann decisions have proved fer-

tile. In those two cases, the use of racial classifications

to remedy the effects of past discrimination was (1) by

a court order, (2) after a judicial finding of past de

jure discrimination, (3) that was held to be unconsti-

tutional. But other governmental bodies— the federal

courts, the Congress, the federal Executive, local school

authorities and, in this case, a State University—now

are using the same remedial tool in other fashions and

in other contexts. Consistently, the constitutionality

of their efforts has been upheld.

The major federal uses of remedial racial classifica-

tions, that have been tested constitutionally, are under

Title VII of the Civil Rights Act of 1964,” guarantee-

ing equality of employment opportunity, and under

Executive Order 11246,” requiring federal contractors

to take ‘‘affirmative action’ to recruit and employ

racial minorities. Pursuant to Title VII, courts have

held that it is constitutional to order hiring of workers

on a racial-ratio basis. E.g., Heat and Frost Workers,

Local 53 v. Vogler, 407 F.2d 1047 (CA 5); United

States v. Sheet Metal Workers International Ass’n,

Local No. 36, 416 F.2d 123 (CA 8); United States v.

Tron Workers Local 86, 443 F.3d 544 (CA 3), cert.

2142 U.S.C. 2000(e).

22 30 F.R. 12319, as amended, 32 F.R. 14303; 34 F.R. 12985.

denied, 404 U.S. 984; United States v. Wood, Wire, and

Metal Lathers Internatoinal Union, Local No. 46, 471

F.2d 408 (CA 2), cert. denied, 41 U.S.L.W. 3645;

United States v. Local Union No. 212, Int’l Brother-

hood of Electrical Workers, 472 F.2d 634 (CA 6);

Stamps v. Detroit Edison Co., 42 U.8.L.W. 2200 (E.D.

Mich.). Pursuant to Executive Order 11246, courts

have held that it is constitutional to require ‘‘affirma-

tive action”’ in the form of specific percentage goals and

timetables for hiring of racial minorities. E.g., Con-

tractors Ass’n of Eastern Pennsylvania v. Secretary of

Labor, 442 F.2d 159 (CA 3), cert. denied, 404 U.S. 854;

Southern Illinois Builders Ass’n v. Ogilvie, 471 F.2d

680 (CA 7); Joyce v. McCrane, 320 F.Supp. 1284

(D.N.J.); Weiner v. Cuyahoga Community College

District, 19 Ohio St.2d 35, 249 N.E.2d 907, 908. More-

over, courts have upheld the constitutionality of orders,

under the Fourteenth Amendment itself, requiring

State or local governmental bodies to use a form of

racial preference in hiring. Carter v. Gallagher, 452

F.2d 315 (CA 8), cert. denied, 406 U.S. 950; Castro v.

Beecher, 459 F.2d 725 (CA 1); NAACP v. Allen, 340

F.Supp. 703 (N.D. Ala.) ; Officers for Justice v. Civil

Service Comm. of San Francisco, 42 U.S.L.W. 2308

(D.N. Cal.).

These federal uses of remedial racial classifications,

unanimously held constitutional, follow the principles

announced in Montgomery County and Swann; but

they have taken substantially different forms. (1) The

racial ratios ordered for hiring under Title VII and

the Fourteenth Amendment have been initially framed

by a court, as in Montgomery County and Swann. The

race-based ‘‘goals and timetables’ under Executive

Order 11246, however, have been initially framed by

LET LL NOLL LOO LE LAGL OL LL! OEIC IBY SOLS EEE LEN LED —

Executive officials. (2) Like the racial classifications

in Montgomery County and Swann, the ratios under

Title VII and the Fourteenth Amendment have been

ordered after a judicial inquiry into past hiring prac-

tices by the specific company, union or governmental

body in question. But it has been held that this specific

inquiry need not turn up past, purposeful discrimina-

tion by the employer or union ; a mere showing of imbal-

ance between the numbers of racial minorities available

for work and the numbers hired in the past establishes

a ‘‘prima facie’’ basis for a remedial order. See

Umited States v. Ironworkers Local 86, 443 F.2d 544,

551; Castro v. Beecher, 459 F.2d 725, 735. And the

general requirement of ‘‘goals and timetables’’ under

the Executive Order is applicable to all federal con-

tractors, without any specific finding of their own

past discrimination. (3) Finally, unlike Montgomery

County and Swann, the racial classifications under

Title VII and the Executive Order are ordered without

any holding that the company or union in question has

committed any unconstitutional act in the past.

These uses of remedial racial classifications by the

federal government—allowed such breadth and flexi-

bility by the courts—have, however, shared one over-

riding characteristic with the classifications upheld in

Montgomery County and Swann: they have been coer-

cive, extending federal power into the states. At issue

in this case, on the other hand, is whether a State gov-

ernmental body may voluntarily adopt a similar re-

medial policy. The question almost answers itself.

In our federal system, State and local agencies must be

allowed at least as much, and probably more, leeway

to fashion their own remedies for the lingering disease

of racial discrimination and its aftereffects. See

Younger v. Harris, 401 U.S. 37.

In fact, this Court has already indicated very clearly

that State and local bodies do have a broad and flexible

power to seek equal opportunity through the use of

remedial racial classifications. The Court has said that

this power is much broader and more flexible than that

of courts acting alone, as in Montgomery County and

Swann. The Court spoke particularly of school author-

ities’ voluntary efforts to undo de facto school segre-

gation, but its comments apply more broadly:

‘*School authorities are traditionally charged with

broad power to formulate and implement educa-

tional policy and might well conclude . . . that in

order to prepare students to live in a pluralistic

society each school should have a prescribed ratio

of Negro to white students reflecting the propor-

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

educational policy is within the broad discretion-

ary power of school authorities; absent a finding

of constitutional violation, however, that would

not be within the authority of a federal court.’’

Swann-v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 16.

In this statement, the Court resolved three questions

that arise in the present case. (1) State or local school

authorities may act alone to use racial classifications

designed to bring the races together. No court order is

necessary. (2) State or local school authorities may

act without any prior finding, judicial or otherwise,

that they, specifically, have purposefully discriminated

in the past. It is enough if they are acting to correct

a mere racial imbalance. (3) And, finally, the condi-

tion they are seeking to cure through use of a remedial

racial classification need not itself be unconstitutional.

The Court’s resolution of these questions is con-

sistent with decisions by every court to face the issue

that State and local school officials are permitted by the

Constitution to act on their own, using remedial racial

classifications, to undo de facto school segregation.

E.g., Offermann v. Nitkowski, 378 F.2d 22 (CA 2);

Wanner v. County School Board, 357 F.2d 452 (CA 4) ;

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

261 (CA 1); Fuller v. Volk, 250 F.Supp. 81 (D.N.J.) ;

Tometz v. Board of Education, 39 Ill.2d 593, 237

N.E.2d 498; Morean v. Board of Education, 42 N.J. 237,

200 A.2d 97; Addabbo v. Donovan, 16 N.Y.2d 619, 209

N.E.2d 112. It is also consistent with court decisions

upholding the constitutional power of a State govern-

ment, Associated General Contractors of Massachusetts

v. Altshuler, 42 U.S.L.W. 2320, and of local school

authorities, Porcelli v. Titus, 431 F.2d 1254 (CA 3) ; but

ef. Anderson v. San Francisco Unified School District,

3597 F.Supp. 248 (N.D.Cal.), to undo past racial

imbalance in employment by mandating racial hiring

ratios.

Clearly, then, the Court has given high priority to

the value of State and local freedom to use remedial

racial classifications, when their purpose is to achieve

equal opportunity for long-suppressed racial minori-

ties. Its emphasis on the ‘‘discretionary powers’’ of

these authorities to ‘‘formulate and implement”’ their

own ‘‘educational policy’’ in this area goes far to sup-

port the ‘‘educational policy’ of the University of

Washington in the present case.

It Now Being Clear That Remedial Racial Classifications Are

Not To Be Presumed Unconstitutional, That Indeed They

Are Broadly Permissible, and That Their Voluntary Use

Is Not Confined Within Inflexible Bounds, the Racial

Classification in the Present Case Should Be Permitted,

Unless Shown To Be “Unreasonable” in Initiation or

Scope.

What are the boundaries of the ‘‘discretionary

powers”’ of school authorities—here, a State Uni-

versity—to ‘‘formulate and implement”’ theix ‘‘educa-

tional policy’ through use of a remedial racial classi-

fication? Because it is the exercise of ‘‘discretionary

powers”’ that is involved, and because remedial racial

classifications are not presumed unconstitutional, a

‘*strict’’ requirement of ‘‘necessity’’ and ‘‘compelling’”’

justification would be inappropriate.” But, because

** This is not to suggest that the Law School’s admissions proc-

ess could not pass such ‘‘strict’’ serutiny. To the contrary, it

seems clear—given the purpose of the Fourteenth Amendment—

that efforts to remedy past discrimination and to bring the

races together are in service of a ‘‘compelling interest.’’ What

could be a more ‘‘compelling’’ purpose, under the Amendment,

than to set out to achieve exactly what the Amendment itself was

meant to achieve?

There is, moreover, no ‘‘less onerous alternative’’ to the Law

School’s minority policy. An effort to seek only ‘‘disadvantaged’’

minority students, rather than minority students generally, would

be impossible to administer and would not solve the problem of

exclusion of all minority students, ‘‘disadvantaged’’ and non-

‘‘disadvantaged’’ alike, from the School in the past. See pages

59-60 below. Mere reliance on ‘‘compensatory education’’ pro-

grams at the primary and secondary school levels to solve the

problem would be even more inadequate. Such ‘‘compensatory

education’’ programs are useful, but they are not yet anywhere

near perfect; by themselves, they cannot heal the scars left by

discrimination on the present generation of minority children;

and, in any event, they offer nothing at all to those minority

youths who have already graduated from secondary school without

such help.

there are inherent dangers of excess in the use of any

racial classification, the usual test of mere ‘‘ration-

ality’’ may be too weak.

A test for a voluntary, remedial racial classification

should be designed to deal with the danger of excess. A

remedial classification, used to deal reasonably with a

real problem in a moderated fashion, presents litiie

danger. But a classification used for no reason or

hardened into a rigid ‘‘quota,’’ could needlessly prej-

udice the opportunities of non-minorities.

A proper test will be both flexible enough to honor

the right of school authorities to adapt a remedial

policy to their own perception of a particular problem,

yet not so flexible as to allow establishment of a ‘‘re-

verse racism.’’ The basis for such a test is familiar

to every court: it is the test of reasonableness. Reme-

dial racial classifications—including that of the Uni-

versity of Washington Law School—should be per-

mitted unless shown to be unreasonable in initiation

or scope.

Il. APPLICATION OF THE LAW: THE REASONABLENESS OF

THE LAW SCHOOL’S ADMISSIONS PROCESS

The University of Washington's Decision To Initiate a Policy

of Seeking More Than a Token Number of Minority

Students Was Not Unreasonable.

The reasonableness of the University’s decision to

seek more minority students may be tested in three

separate respects: Was the decision based on a reason-

able perception of a real problem to be remedied? Was

the policy reasonably designed to remedy it? Was the

University’s decision within reasonable limits of the

broad ‘‘educational policy’’ that a University is en-

titled to choose for itself?

The immediate problem that the University’s policy

was designed to solve was the mere token presence of

minority students on its campus. The University

President, Charles Odegaard, testified that he initiated

a study of this question after he saw ‘‘so few’’ black

students graduating from the University at its 1963

Commencement exercises. (St. 222-223.) The study,

by a faculty committee, was hardly precipitate. It

lasted almost two years. In 1965, it resulted in a formal

report focusing on the very small numbers of minority

students at the University and recommending the sort

of affirmative policy that was later adopted to seek

more minority students. (St. 223-227.) When the

University Law School applied this policy to its ad-

mission process, it, too, focused on applicants from

minority groups that had sent no more than a few

students to the School in the past. (St. 352.)

The University policy, however, was not designed

only to deal with this immediate problem. University

authorities saw the near-absence of minority students

on their campus as part of a broader problem. Presi-

dent Odegaard defined it as the need of minority groups

to ‘“‘acquire the kind of educational background re-

quired for many of the roles in society.’”’ (St. 223.)

The Law School Dean, Richard Roddis, saw the need

for a ‘‘policy of paramount social importance on a

national and state level to rapidly increase the par-

ticipation and representation of people from these

[minority] groups in the [legal] profession.’’ (St.

419.)

There is nothing, in the record in this case or outside

it, to suggest that the University’s perception of these

problems was not reasonable—or that the policy it

adopted, affirmatively to seek more minority students,

was not reasonably designed to remedy them.

At trial, the Petitioner did not even attempt to

contest the University faculty committee’s finding that

no more than a few minority students were being ad-

mitted under the old admissions system. Certainly,

that finding, as applied to the Law School, is entirely

consistent with contemporary national findings. In

1965, the year this University’s committee issued its

report, the American Association of Law Schools also

issued a report on the same problem, though confined

to one minority: blacks. It found that there were only

about 700 blacks in America’s 150 law schools. About

half of them were in 5 largely black law schools. Thus

blacks represented only about 1.3% of all law students,

and less than 1% in the non-black schools. 1 1965 Proc.

AALS 172.

The Petitioner also did not attempt to challenge the

University’s perception of the broader problem it meant

to remedy—the extreme scarcity of racial minorities

in important professions, and particularly the legal

profession. Since the time of Alexis de'Toqueville, the

extraordinary importance of lawyers in America has

been universally recognized.* Yet studies conducted

during the 1960’s found that ‘‘[w]hereas about one

American in 625 becomes a lawyer, only one in 7,100

Negroes choose the law . . . Negroes constitute 12%

of the nation’s population, yet comprise less than one

41. A. deTouqueville, Democracy in America 282-290 (Vintage

ed.)

percent of the legal profession.’’* Available statistics

indicate that other minority groups, such as Indians

and Chicanos, have even fewer of their own in the legal

profession.” And, while figures for the State of Wash-

ington are harder to come by, it is known that, as of

1970, the State had only 20 black lawyers. 116 Cong.

** Gellhorn, The Law Schools and the Negro, 1968 Duke L.J. 1069,

1073. In the greatest American cities, the mere token representa-

tion of blacks in the legal profession is astounding. Hearings

on white collar employment, held in New York City by the

Equal Employment Opportunity Commission in 1968, for example,

revealed that of the 26 major industry groups in the city, law

firms ranked next te last in black participation. Seven percent

of white collar workers employed by banks were black; only 14%

of those employed by law firms were black. In 1967, the 30

largest New York City firms employed three black attorneys

among them. Among Chicago's seven largest firms, only one black

attorney was employed in 1967, while the ten largest Washington,

D.C. firms and the two largest Boston firms employed no black

attorneys. Brown, Racial Discrimination in the Legal Profession,

53 J. of Am. Jud. Soc. 385.

A 1971 survey of 44 Midwestern law firms showed that only

08% of the firms’ partners and only 12% of their associates

were black. Edwards, A New Role for the Black Law Graduate, 2

Black LJ, 21, 34, 38, 40.

* A State with one of the largest Spanish-American populations

is California. Spanish-Americans make up 11% of Californians;

but less than 1% of California’s lawyers are Spanish-American.

California State Department of Finance, Provisional Estimate of

Racial and Ethnie Composition of California, July 1966 & July

1967; Northern California Legal Director (1968); Southern Cali-

fornia Legal Directory (1968).

A city with a large Chicano population—9% of total popula

tion—is Denver. Yet only 05% of the city’s attorneys are classi-

fied as Chieano. O'Neil, Preferential Admissions: Equalizing

Access to Legal Education, 1970 U.Tol.L.Rev. 281.

Arizona, New Mexico and Utah have almost 135,000 American

Indian residents. But, as of 1968, there was not even one Indian

practicing law in the first two of these states. University of

New Mexico, Special Scholarship Program for American Indians

(Brochure), at 4.

Rec.E. 7996 (daily ed., Sept. 2, 1970). One estimate is

that there now is one white lawyer for every 720 whites

in the State; but there is only one black lawyer for

every 4,195 blacks, one Indian lawyer for every 6,677

Indians, and at most one Mexican-American lawyer for

every 35,367 Mexican-Americans.”

Just as the Petitioner has not challenged the rea-

sonableness of the University’s perception of the prob-

lems it sought to remedy, so he also has not suggested

that the ‘‘diseretionary”’ policy it adopted to seek more

minority students was not reasonably adapted to the

purpose. Plainly, if there are very few minority stu-

dents admitted to law school and graduating into the

legal profession under an admissions system that em-

phasizes one set of factors, a more ‘‘discretionary”’

policy looking also to other indications of individual

potential of minority applicants is weli desigaed to

remedy the problem.

During the same period in the late 1960’s that the

University of Washington was initiating such a policy,

‘‘many, possibly a majority’’ of other law schools took

the same step.” Moreover, several ‘‘sponsoring or-

ganizations’’—ineluding the American Bar Association

and the Association of American Law Schools—joined,

on a national level, to form the Council on Legal Edu-

cation Opportunity at about the same time. (St. 121-

122.) The Council sought to aid law schools, in their

*? Morris, Equal Protection, Affirmative Action and Racial Pref-

erences in Law Admissions: DeFunis ¥. Odegaard, 49 Wash.L.Rev.

1, 38.

* Rosen, Equalizing Access to Legal Education: Special Pro-

grams for Law Students Who Are Not Admissible by Traditional

Criteria, 1970 U Tol.L.Rev. 321, 326 n.11.

**diseretionary”’ efforts to identify minority applicants

with special potential, by establishing six-week summer

institutes for such applicants and then giving special

scholarship support to ‘‘those who successfully com-

plete the summer institute and who do then choose to

go on to law school.”’ (St. 123-124.) Thus the Uni-

versity of Washington was far from the only insti-

tution in America to decide that affirmative efforts

were needed if it was to bring minorities into the legal

profession through the law school admissions process.

Certainly, such a decision was well within reasonable

bounds of the Law School’s “broad discretionary

power’’ to determine its own ‘‘educational policy.”” A

law school’s educational concerns have never been con-

fined—and, clearly, the Constitution does not confine

them—to a narrow focus on teaching and testing. As

this Court recognized long ago, a “law school, the prov-

ing ground for legal learning and practice, cannot be

effective in isolation from the individuals and institu-

tions with which the law interacts.’’ Sweatt v. Painter,

339 U.S. 629, 634. Thus, even in a narrow educational

sense, a law school has an important interest in the

variety of its student body. The University of Wash-

ington acted in this interest, out of concern for its

‘educational environment.’’ (St. 418.) Such action

is entirely common, as President Odegaard testified:

“Tt is a very common thing in higher educa-

tion... for universities to regard a mix of students

from many areas as preferable to a parochial

group, and this is a very common policy through-

out the nation. .. . Students obviously learn from

students, as well as from their i iate instruc-

tors, and this, therefore, enriches their own educa-

tional opportunity.”’

(St. 218.)

Moreover, the boundaries of a law school’s ‘‘broad

discretionary power’? over its ‘‘educational policy”’

extend beyond the immediate educational environment

to the contribution it is making to society, through its

graduates. A law school, particularly, cannot ignore

the fact that its admissions decisions, as well as the

type of education that it provides, will have an impact

on the country. Only an irresponsible school would

not take this fact into account; the University did take

it into account.

On this record, then, the reasonableness of the Uni-

versity’s decision to initiate its minority policy has

not been shaken. Indeed, only one theory has been

suggested—by an Amicus supporting the Petitioner’s

position—to attack that decision. The suggestion is

that school authorities should be allowed to adopt a

remedial policy toward racial minorities only if they

have themselves engaged in ‘‘prior discrimination”’

against such minorities, or if their remedial policy

‘‘deprives’’ no one else of opportunities previously en-

joyed. Brief of Anti-Defamation League of B’nai

B’rith as Amicus Curiae in Support of Jurisdictional

Statement, at 16.

This proposed lim ‘t on the voluntary action of State

and local authorities has no basis in the law. Indeed,

the law has already gone well beyond such rigid

constraints.

First, there is no requirement that a State or local

body taking remedial racial action must do so without

‘depriving’ anyone else of accustomed opportunities.

Our heritage of racial discrimination has not only

harmed minorities; it has also benefitted certain other

groups. A remedy for the harm will often inevitably

reduce some of the accustomed benefits. Even the ra-

cial ratios approved for school assignment in the Mont-

gomery County and Swann decisions had this effect.

The mandatory assignment ratios ‘‘deprived’’ whites of

certain benefits, forcing them to leave schools that they

liked, often closer to home. Blacks sought the

re-assignments; they preferred to go to other schools.

Whites preferred to stay where they were; yet they

were moved. School re-assignment by school boards

to remedy de facto segregation has the same

‘“‘deprivation”’ effect on whites. No doubt, many of

the white teachers and students who are re-assigned

have not committed any discriminatory act. But, in

the real world, there often is no way to remedy a long-

established discriminatory system of distributing

benefits and burdens without ‘‘depriving’’ someone

of some benefits at least on a short term basis.” Nei-

ther this Court nor any court has let this fact of life

stop remedial efforts.

Second, there is no requirement that a State or local

body using a remedial racial classification show that it,

specifically, has discriminated against minorities in

the past. The countless court decisions unanimously

upholding the authority of local school boards to undo

past de facto school segregation have made this clear.

See cases cited on page 45 above. De Facto school

segregation, by definition, need not be the result of spe-

cific discrimination by the school board. Rather, it is

the result of discrimination by others—for example, in

2° It should be noted that the Petitioner, DeFunis was not ‘‘de-

prived’’ of a legal education. DeFunis was denied the opportunity

to study law at one particular University; but, for two years in

a row, he was offered admission to other law schools, both in his

home State and outside it.

ee a ee EE EE ee ~—s

the sale or rental of housing—and of the myriad

debilitating effects of such discrimination that reinforce

segregated housing and therefore school enrollment

patterns. This Court has itself stated clearly that

school boards are entitled to use remedial racial clas-

sifications to undo such de facto segregation. Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S.

1, 16.

The remedial action that the University of Wash-

ington Law School voluntarily took in the present

case is quite similar to voluntary action by school

boards to remedy de facto school segregation. Ac-

cordingly, it should not be subjected to more rigid

limitations.

To be sure, the record in this case gives some indi-

cation that this University once engaged in specific,

purposeful discrimination against minority students.

President Odegaard testified that, in 1958, “‘there were

references . . . to racial [discrimination]’’ at the

University. (St. 221.) But, in a later exchange at

trial, he mentioned no such discrimination:

““Q—TiL c ~ever was a policy to keep minority

students ou =. «* there, at any time?

A—T[by Presi ent Odegaard] There was no policy

to keep students out. It was a form of operation

at the University that obviously, some way or

another, detracted from the minorities that came.’’

(St. 240-241.) The problem thus was one of past

de facto non-admittance of minority students, due to

general ‘‘cu‘tural conditions’ (St. 223-224.)—i.e., due

to pervasive racial discrimination in the society that

limited access by minority youths to the kind of pre-

paratory education and other opportunities that facili-

tated admission to the Law School.

Of course, it is easier to identify and assess the

de facto segregation of a school district than the de

facto exclusion of minorities from a law school or the

legal profession. A school district has a given ‘‘pool’’

of school children; the imbalance from school to

school can be quickly calculated. A law school draws

its students from a much larger “pool,’’ of vaguer

dimensions. De facto exclusion of minority students

cannot usually be calculated accurately from the per-

centage of minority population in any specific geo-

graphical area, if the school draws students from many

areas. Nor can it be easily calculated just by looking

at the number of actual applicants and their races.

For social, economic, and cultural conditions, related to

past discrimination, may keep many even from ap-

plying.

The University of Washington Law School has

chosen to be a “‘national law school.” (St. 405.) It

draws applications from around the country; almost

half of the applicants to whom it offered admission in

1971 were from out of state. (St. 216) Thus the

“‘pool’”’ of minority students who may have been ex-

cluded from the Law School in the past should be

measured on a national scale.

Perhaps no precise measurement is possible. But

this Court has recognized that racial discrimination

is a national ‘“‘evil . . . which in varying degrees mani-

fests itself in every part of the country.’’ Oregon v.

Mitchell, 400 U.S. 112, 284; id. at 133-134, 216, 235.

More specifically, the Court has recognized that dis-

crimination in primary and secondary education may

result in later disadvantage to minorities when educa-

tionally-based tests are used to condition access to a

benefit. See South Carolina v. Katzenbach, 383 U.S.

301, 327-334; Gaston County v. United States, 395 U.S.

285; Griggs v. Duke Power Co., 401 U.S. 424, 430.

This effect of past discrimination, the Court has said,

is not confined to any one particular area where past

inequality in education has been especially burden-

some; rather, it may be felt throughout the country.

Oregon v. Mitchell, 411 U.S. 112, 133, 216, 235, 283.

Clearly, an effect of this general kind was felt at the

University of Washington Law School and resulted

in the exclusion of minority students.

The difficulty in assessing the extent of such de facto

racial exclusion from law school might possibly deter a

court from holding it unconstitutional, even if de facto

segregation of public school districts is outlawed

under the Fourteenth Amendment. See Keyes v.

Denver School District No. 1, 413 U.S. 189, 217

(Powell, J., concurring). But a state of affairs that

might discourage judicial interference with law school

admissions policy need not also prevent the law school

itself from revising that policy. ‘[A]bsent a finding

of constitutional violation,’’ a court may not order a

remedy based on racial classification; but for school

authorities ‘‘[t]o do this as an educational policy is

within [their] . . . broad discretionary powers.”’

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 16.

The Law School’s Affirmative Policy To Seek Minority

Students Was Not Unreasonable in Scope.

The reasonableness in scope of the Law School’s

minority admissions policy may be tested in three

separate aspects: Was the Law School’s choice of the

minorities to be covered by the policy a reasonable

one? Was the departure from normal procedures in

the treatment of minority applications reasonably

limited? Was the end result, in terms of minority

applicants admitted, reasonably consistent with the

institutional mission of the Law School and with the

interests of non-minority applicants?

The first of these questions is not involved in this

case. The Petitioner did not claim, at trial, to be the

member of any minority group that had been subject

to de facto exclusion from the Law School, but that was

not included in the School’s affirmative admissions

policy toward previously excluded minorities. Nor

did the Petitioner present any evidence to suggest

that there is any such previously excluded group, not

covered by the Law School’s policy.

The record is clear, however, on the standards used

by the Law School to choose the minorities covered by

the policy. The School focused on two factors: past,

pervasive discrimination against the minority group

and past absence of any more than a few students from

the minority in the Law School. Its application of

these standards is illustrated in its decision not to in-

clude Asian-American applicants under the affirmative

policy. Asian-Americans were long subject to dis-

crimination in the north-western States. See, e.g.,

Yick Wo v. Hopkins, 118 U.S. 356. But, the Law

School admissions committee found, a “significant

number’’ of them were then being accepted through

the ordinary process. Thus it concluded that their

situation, at the time, was significantly different from

that of blacks, Indians, Mexican-Americans and Phil-

ippine-Americans.” (St. 352.) Such a process for

selecting the minorities to be sought was surely, on its

face, a reasonable one.

%° We understand that, for the year 1974, Asian-Americans are

being included as minorities for admissions purposes.

The Petitioner has suggested that the Law School

should have singled out only minority applicants

shown to be personally ‘‘disadvantaged’”’ or ‘‘poor’’ or

“culturally deprived.’’ Petitioners’ Opening Brief,

at 10. This matter was brought up briefly at trial,

when a member of the admissions committee was testi-

fying, and it was established that the School had no

information to apply these vague concepts in individual

cases:

‘‘Q—Well, was there anything to show you that

perhaps the Afro-American was—came from a

very affluent family ?

A—There was no way of telling that.”’

(St. 262.)

Even if the School had attempted to define ‘‘dis-

advantage,’’ ‘‘poverty’’ and ‘‘cultural deprivation,”

and even if it had required minority applicants to sub-

mit the extensive information needed to apply the

definition, such a distinction would have been inappro-

priate. For it was the racial minorities generally—

not just their ‘‘disadvantaged’’ or ‘‘poor’’ or ‘‘cultur-

ally deprived’’ members—that had suffered in the past

from pervasive racial discrimination and de facto ex-

clusion from the Law School and the legal profession,

which were the problems the School sought to remedy.

In that sense, all members of the minority groups were

relevantly “disadvantaged’’ for the purposes of the

University policy. ™

31 There is, of course, no evidence whatever that the Petitioner,

DeF unis, was himself disadvantaged in any way. ‘‘There is noth-

ing in the record to show whether or not . . . DeFunis or any of

the white applicants were in fact culturally disadvantaged, poor

or discriminated against.’’ Petitioners’ Opening Brief, at 12.

The remedial racial classifications consistently up-

held in the past have not distinguished between ‘‘poor’’

and ‘‘non-poor,”’ or ‘‘culturally deprived’’ and ‘non-

culturally deprived,’? members of racial minorities.

Remedial hiring, on the basis of a racial ratio, ordered

under Title VII of the 1964 Civil Rights Act has made

no such distinction. See cases cited on pages 41-42

above. Nor have the ‘‘affirmative action’’ plans under

Executive Order 11246. See cases cited on page 42

above. To be sure, the poverty or ‘‘cultural depriva-

tion’”’ of many members of racial minority groups has

contributed to their past failure to gain admission to

law schools and the legal profession and certain other

kinds of employment. But these factors are too tightly

connected to more than a century of racial discrimi-

nation to be easily separated out. The courts have

upheld remedial racial classifications in the past be-

eause of that history, not because of sociological cate-

gories such as ‘‘poverty’’ or ‘‘cultural deprivation.”’

If the University did not act unreasonably, then, in

selecting the minority groups covered by its affirmative

policy, the question remains whether the policy itself

was unreasonable in operation. In fact, it is the dif-

ferential treatment of the minorities, not their selec-

tion, that the Petitioner is objecting to in this case.

It is true, of course, that minority applicants were

not accepted or rejected solely on the basis of their

college grades and L.S.A.T. scores. But neither were

non-minority applicants. In the case of every appli-

cant, the admissions committee looked beyond grades

and scores for indications of special personal potential

or motivation or background that might contribute to

the law school community. In the case of every appli-

cant, the committee examined the required letters of

personal recommendation and the optional personal

statements submitted. See pages 15-18 above. In the

case of every applicant—including the Petitioner—the

committee, conducting a review of the files, gave spe-

cial heed to evidence of personal character and ex-

perience. (St. 387.)

The “‘discretionary’’ admissions system, in other

words, was applied to minority and non-minority ap-

plicant alike. The Petitioner is simply incorrect in

representing that: ‘‘Of course all white students were

subjected to the standardized mathematical criteria

for admission.’’ Petitioners’ Opening Brief, at 16.

No students were subjected to such ‘‘standardized’’

criteria.

The differential treatment accorded to minority

applicants was only a matter of degree—within the

‘*discretionary’’ system applied to all. The treatment

was different in just two respects. First, somewhat

more weight was given to non-grade-and-score factors

in the applications from minority students. Second,

as a matter of administration, all minority applica-

tions with a P.F.Y.A. below 77 were deferred for con-

sideration in May, when they were first reviewed by

committee members with unique knowledge of minority

problems and then reviewed by the whole committee at

a separate meeting.

These may seem to be stark differences in treatment,

if viewed out of context. In the context of the overall

“‘discretionary’’ admissions process, however, the dif-

ferences blend into the background of multivarious

factors considered in process, with varying weights in-

evitably attached to varying factors in varying cases.

Many variables, if singled out and made the subject

of litigation, might seem to alter the overall process

far more than they really do. For the goal of the

process remained, whatever the varying weights given

to different factors in different cases, the selection of

a group of students qualified to study law and to con-

tribute to both the law school community and the

community at large.

Just as a school seeking football players, or mu-

sicians, or scientists, or students from different parts

of the country—or sons and daughters of alumni—

might look especially carefully at the applications of

people with such backgrounds so the University of

Washington Law School looked especially carefully at

applications from minority students. Giving es-

pecially close attention to the applications of minority

students, in fact, was more reasonable a measure than

pursuing a similar policy towards football players or

sons of alumni. For what set minorities apart for

careful consideration was the fact that they had been

largely missing in the past and that by seeking to

admit more of them, the Law School could bring more

heterogeneity to its ‘“‘educational environment’’ and

make a contribution to the racial problem plaguing

America for decades.

Moreover, the attention given to non-grade-and-

score factors for minority applicants—both in assign-

ing such factors somewhat greater weight and in de-

ferring all minority applications with P.F.Y.A.’s be-

low 77 for separate consideration in May—contrasts

less sharply with the attention given such factors for

non-minority applicants when it is recognized that, for

many minority students, pure grade-and-score factors

may poorly reflect law school performance. The testi-

mony on this point, at the trial of this case, was un-

contested. Professor Millard Ruud of the Univer-

sity of Texas Law School described a study that he had

done for the Counc#l of Trustees governing the Law

School Aptitude Test. His study concluded that

‘‘with respect to minority groups’’ the L.S.A.T. was a

more fallible predictor of law school achievement.

Thus, he said, ‘‘there is a greater need [in their case]

for exercise of judgment of looking at, examining the

transcript, examining all the other data.’’ (St. 129.) *

The Petitioner, in attacking the reasonableness of

such subtle substantive and administrative balancing

decisions by the Law School, is asking this Court to

march into a bog from which it would not soon extri-

cate itself. Even if the Court ordered all law schools

everywhere to give substantially the same weight to

all factors for minority and non-minority applicants,

how could it ever police this principle? How could a

law school be sure it was obeying the principle? Ad-

missions committees, after all, do not use scales so

precise that weights can be measured exactly. ™*

Here, non-grade-and-score factors were given some-

*? There is, of course, much scholarly debate over the value of

the L.S.A.T. as a predictor of law school performance. But

the clear testimony of Professor Ruud stands unchallenged in this

record. And, in any event, whether or not the L.S.A.T. predicts

law school grades, there is no suggestion anywhere that it predicts

one’s performance as a lawyer. It is, after all, to train lawyers—

not merely to grade students—that law schools exist.

**Moreover, it is not only the immediate balancing decisions by

an admissions committee that affect the admissions process. Other

factors enter in, such as the distribution of scholarship money

or even the effort put out by a school to invite applications from—

to recruit—certain types of students. Scholarship and recruiting

decisions are no less subtle or important than immediate admissions

decisions; but, presumably, the Petitioner would want this Court

to impose rigid rules there as well.

what more weight for minority students. Was it too

much more? How much more is too much? Surely,

there is no constitutional rule that all law schools must

base admissions decisions solely on college grades and

L.S.A.T. seores, ignoring all indications of personal

and motivation. Yet that is the only rule

that would be at all workable if petitioner were to pre-

vail.

In the present case, since the differential treatment

was simply a matter of what weights were assigned to

different factors in the decisionmaking process, the

Petitioner has not succeeded in making a showing of

unreasonableness. A court is well advised, in this in-

stance, to defer to the experience of the school authori-

ties. And, here, those authorities felt that they “al-

ready had enough experience to show that persons

{from minority groups] who, on the basis of the con-

ventional . . . aptitude tests or grades, may do rather

poorly, actually, when admitted to the University . . .

can and do make excellent records.’’ (St. 234.)

It remains only to examine the reasonableness of the

end result of the Law School’s minority policy. If

the Petitioner had shown that the School, in 1971, ad-

mitted a rigid ‘“‘quota’’ of minority applicants or ad-

mitted actually ‘‘unqualified’’ minority applicants,

this would be a difficult case. The School would be hard

put to justify such a result as reasonably consistent

with its institutional mission or with the legitimate

interests of non-minority students. But the Peti-

tioner did not make any such showing.

The most that the record reveals is that the Law

School sought a ‘‘reasonable representation’’ of mi-

nority students—not a “‘quota.”’ (St. 420.) Of course,

‘‘diseretionary’’ nature of its admissions process.

Even more central to the reasonableness of the Law

School’s policy is the fact that it did not admit un-

qualified minority students at the expense of qualified

non-minority students. The Dean of the Law Schoo!

testified that ‘‘[w]e will go down to reach”’ a “‘reason-

able” representation—ie., “‘go down” in terms of

The Petitioner did not successfully challenge this tes-

timony. To be sure, it was shown that the admissions

committee considered the applications of minority stu-

dents at a separate meeting. (St. 351.) But the ree-

ord is clear that the basic standard of qualification for

law study applied at that meeting was the same as that

applied at all the committee’s other meetings. (St.

353, 399.) The Petitioner made much of the fact that

some minority students admitted may have been ‘‘less’’

qualified than some others. (St. 245.) But, as every

witness made clear, distinctions of degree above the

basic standard of qualification—a reasonable likeli-

hood of success in law school—depend on subtle per-

sonal factors as well as grades and scores, and no one

narrow definition of ‘‘more qualified’ or ‘‘less quali-

fied”’ is serviceable. (St. 73, 245, 353, 417-418, 423-424. )

It can always be made to appear that, under one rigid

criterion such as grades or test scores, ‘‘less qualified”’

applicants are admitted while ‘‘more qualified’’ appli-

cants are rejected. But, when the essentially ‘‘dis-

eretionary’’ nature of the admissions process is recog-

nized, distinctions blur and fall far short of invidious

discrimination.

The Petitioner also made much at the trial of three

specific minority students who were offered admission

to the Law School in 1971. Each of the three had

grades and scores substantially lower than the Peti-

tioner’s. But, as the Chairman of the admissions

committee pointed out, these three individuals were

all graduates of Council on Legal Education Opportu-

nity summer institutes. (St. 397, 399.) They were

ealled to the Law School’s attention by the director

of the institutes. (St.411.) Thus the Law School had

special information about their personal characteristics

to weigh against their grades and scores. Whether,

on the basis of that information, these three students

were substantially ‘‘less qualified’ for law study than

others is hardly the clear-cut matter that the Petitioner

seemed to suppose it was.

Naturally, the Law School’s remedial racial policy

had some costs for non-minority individuals. The class

entering the School in 1971 included 18 minority stu-

dents. While all of them were considered qualified for

law study, some of them might not have been admitted

if the School had concentrated less closely on their

non-grade-and-score qualifications. A few of the 1,300

other applicants, rejected in 1971, might have been

admitted in their place.

By definition, any remedial policy, making adjust-

ments in a system of distributing benefits, will some-

what improve the opportunities of those previously

excluded and somewhat diminish the opportunities of

those previously ineluded in abundance. The question,

always, is whether the adjustment is a reasonable one.

We submit, in the present case, that it is.

CONCLUSION

What is so important about this case is not that the

Petitioner is asking the Court to interfere with the

discretionary admissions process of a law school.

Rather it is that the Petitioner is asking the Court to

cripple efforts in this country to exorcise, at long last,

the effects of our heritage of racial discrimination.

The Court has long reeognized that it is not enough

simply to “bar .. . discrimination in the future ;’’ it is

also necessary ‘‘so far as possible [to] eliminate the

discriminatory effects of the past.’’ Louisiana v.

United States, 280 U.S. 145, 154. The Court has also

recognized that the chain-reaction of those diserim-

inatory effects has gone both wide and deep. The es-

tablishment of a dual school system may affect voting

opportunities. Gaston County v. United States, 395

U.S. 285. It may impose its burdens far into the future

and far across the land. Oregon v. Mitchell, 400 US.

112, 133-134, 235, 283-284. Eliminating such encom-

passing injustices is a hard business; courts alone

cannot do the job; other governmental bodies must

do—and they have done—some part.

No doubt, it is tempting to some to believe that the

job is over, that now we all can relax. The 1960’s are

behind us, to be sure. But the task we set for ourselves

then will not be accomplished quickly; surely, it has

not been accomplished yet. From the Congress to the

Executive and down to smaller state institutions like

the University of Washington Law School, Americans

have grasped the tool of ‘‘affirmative action’’ and have

been using it reasonably and effectively. The poten-

tial for real progress can now be seen.

The question here is whether the Court will now take

that tool from the hands of those who have been using

it for almost half a decade now. We urge the Court

not to do so, and to let the progress along this historic

path continue. Thus we urge that the judgment of the

Supreme Court of Washington in this case be affirmed.

Respectfully submitted,

Marian WriGHT EpELMAN

Children’s Defense Fund

1746 Cambridge Street

Cambridge, Mass. 02138

Counsel for Amici

Of Counsel:

JoserH L. Ravn, JR.

1001 Connecticut Ave., N.W.

Washington, D. C. 20036

i te ie ie

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