Amicus Curiae Brief — DeFunis v. Odegaard

~

OURT, U s. FEB 1 1974

Sum

MICHAEL

In THE RODAK, JR.,CLE:

Supreme Court of the United States

October Term, 1973

No. 73-235

Marco Dre Funis, et al.,

Petitioners,

Vv.

Cuartes Oprcaarp, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF WASHINGTON

BRIEF OF THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

Jack GREENBERG

James M. Nasrit, ITT

CuarLes STEPHEN Ratston

Jerrry A. Mintz

Jounny J. Buruer

10 Columbus Circle

New York, New York 10019

Attorneys for the NAACP Legal Defense

and Educational Fund, Inc.

Lovis H. Potuak

JoHN BAKER

Of Counsel

Ts Vs re

Serr are

TABLE OF CONTENTS

PAGE

Interest of the Amicus

ARGUMENT

I. The Minority Group Admissions Policies of

the University of Washington School of Law

Are Constitutional

II. The Minority Admissions Program Does Not

Violate Title VI

ConcLusion

Aprenpix

Taste or Cases

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)

Alabama v. United States, 304 F.2d 583, aff'd, 371 US.

37 (1962)

Chance v. Board of Examiners, 458 F.2d 1167 (2nd

Cir. 1972)

Contractor Ass’n of Eastern Pa. v. Secretary of Labor,

442 F.2d 159 (3rd Cir. 1971)

Griggs v. Duke Power Company, 401 U.S. 424 (1971) ..

Hernandez v. Texas, 347 U.S. 475 (1954) ms

Katzenbach v. Morgan, 384 U.S. 641 (1966) 0.

Lau v. Nichols, —— U.S. ——, 42 U.S.L. Week 4165

(Jan. 21, 1974) .....

10

&

PAGE

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in

NAACP v. Button, 371 U.S. 415 (1963) 2n, 9n

Oregon v. Mitchell, 400 U.S. 112 (1970) 7n

Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945) 00. «= 9

Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) ......2n, 9n

Sobol v. Perez, 289 F.Supp. 392 (E.D. La. ne 9n

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S.

1 (1971) ca

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

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205

(1973) . 10n

Turner v. Fouche, 396 U.S. 346 (1970) 7n

United States v. Montgomery County Bd. of Ed., 395

U.S. 225 (1969) 3

Welsh v. United States, 398 U.S. 333 (1970) On

7

Srarures:

20 U.S.C. $1619(9)(A) 5n

42 U.S.C. §2000(d) 10n

45 C.F.R. 80.3 (1973) 0. 10

Civil Rights Act of 1964, 4601 __.. 10

Oruern Avrnoriries:

Carl, The Shortage of Negro Lawyers: Pluralistic

Legal Education and Legal Services for the Poor,

20 J. Legal Ed. 21 (1967) 2n

iii

PAGE

Gellhorn, The Law School and the Negro, 1968 Duke

L.J. 1069 2n

Leonard, The Development of the Black Bar, 407 Tue

Awwats 134 (1973) 1n

McGee, Black Lawyers and the Struggle for Racial

Justice in the American Social Order, 20 Buffalo L.

Rev. 423 (1971) 2n

Parker & Stebman, Legal Education for Blacks, 407

Tue Awwats 144 (1973)

In THE

Supreme Court of the United States

October Term, 1973

No. 73-235

Marco De Fun, et al.,

Petitioners,

v.

Cuartes Oprcaanp, et al.,

Respondents.

ON WEIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF WASHINGTON

BRIEF OF THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

Interest «° the Amicus’

Amicus, NAACP Legal Defen. » and Educational Fund,

Inc., is interested in the present case for several reasons.

First, the black community has been grossly underrepre-

sented in terms of the number of black attorneys available.

To a large extent, this was due to deliberate discrimina-

tion.? As recently as 1968, only about one percent of the

1 Letters of consent from counsel for the petitioners and the

respondents have been filed with the Clerk of the Court.

* See, ¢.g., Missouri ex rel Gaines v. ae tee

Sweatt v. Painter, 339 U.S. 629 (1950); and see

Descheyeiah Eee Be; 407 Tue Awwats 134, 87-30

19738).

total number of attorneys in the United States were black,

a figure probably not substantially higher than in 1900.?

Recent figures indicate that slightly over seven percent of

total law school enrollment in the last year is minority

students, including blacks, Chicanos, American Indians,

Puerto Ricans, etc.‘

In the Legal Defense Fund’s experience the need for

black (and other minority group) lawyers to serve their

own community is clear. Although lawyers of all races

have made many contributions to the cause of equal justice,

it is essential that there be black lawyers who live and

practice law day to day and year after year as integral

parts of their communities.’ In the main and over the

long run, they are most disposed to and capable of per-

forming services for the minorities of which they are a

part. Lawyers are critical to political activity, building

businesses, and social development, to say nothing of legal

representation in resolving public and private differences.

Without an adequate number of lawyers, minority prog-

ress in all these areas will be stunted.

In order to help increase the number of black lawyers,

the Legal Defense Fund administers, through its subsid-

iary, the Earl Warren Legal Training Program, Inc., pro-

grams to provide scholarships for black law students and

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

*In 1972-73, there were 4,423 black students, or 4.3% of the

total enrollment. This was up from only 1,254 in 1968-69. Parker

& > ate Legal Education for Blacks, 407 Tue Annats 144, 147

(1973).

* See Carl, The Shortage of Negro Lawyers: Pluralistic Legal

Education and Legal Services for the Poor, 20 J. Legal Ed. 21

(1967) ; MeGee, Black Lawyers and the Struggle for Racial Justice

in the American Social Order, 20 Buffalo L. Rev. 423 (1971).

* See, NAACP v. Button, 371 U.S. 415 (1963) ; Sanders v. Rus-

sell, 401 F.2d 241 (5th Cir. 1968).

assistance to black law graduates seeking to set up practice

in communities without sufficient legal representation.

Obviously, for the success of these programs there must

be significant numbers of black law students. Over the

past few years, which coincide with institution of affirma-

tive admission programs like that at the University of

Washington Law School, the Fund has had a substantial

increase in the number of applications for both programs

from highly qualified black students.’

The second interest of the Legal Defense Fund in this

case arises from the possible implications of this case for

a wide range of litigation. A reversal not only could under-

mine voluntary programs to achieve the reality (and not

merely the appearance) of equal opportunity, but also

could cut back sharply on the remedial powers of courts

(see, e.g., United States v. Montgomery County Board of

Education, 395 U.S. 225 (1969)) and agencies (see, ¢.g.,

Contractor Ass’n of Eastern Pa. v. Secretary of Labor, 442

F.2d 159 (3rd Cir. 1971) to require affirmative action.*

™ Between 1967 and 1973 over two hundred and thirty black

students who were recipients of scholarship assistance from the

Fund graduated from law schools. These recipients and graduates

have matriculated at forty-five of the major law schools in the

East, South and Mid-West, and at both national and regional law

schools. At present more than three hundred and sixty are en-

rolled in the program.

During the same span of years the Legal Defense Fund has

trained or has in training in its post-graduate fellowship program

over eighty young lawyers for civil rights practice. They have

distinguished themselves professionally, in politics, business and

civic affairs. In each of the last two years the Fund has had

almost two hundred applicants for twelve positions. Comparable

ratios prevail with respect to applicants for scholarships.

* The question which arises in this case, in a Northern state,

implicates also the South. In the South, where higher education

remained segregated by law in many places until well after this

Court’s decision in Brown, effective steps to dismantle the dual

system in many colleges and universities are just now commencing.

ARGUMENT

I.

The Minority Group Admissions Policies of the Uni-

versity of Washington School of Law Are Constitutional.

It is important to focus precisely on what the University

of Washington Law School was doing, and what peti-

tioner Marco De Funis, Jr.. may complain about. The

School was faced with the problem of deciding which of a

large group of qualified’ applicants it should admit. These

decisions were made by a complex process; applicants

could not, as petitioner De Funis urges, be chosen by the

rigid application of mathematical formulae. A small group

of students were more or less automatically admitted if

they had a high Predicted First-Year Average (PFYA).

These steps were occasioned by Adams v. Richardson, 480 F.2d

1159 (D°C. Cir. 1973), which the undersigned amicus sponsored.

It would be a misfortune were this case to give rise to any prin-

ciples which might hinder the fullest desegregation process in

higher education in Southern and border states. Recently, in its

responses to the previously submitted desegregation plans, which

it found inadequate, the Department of Health, Education, and

Welfare made clear that affirmative remedial measures must be

undertaken to achieve black access to public higher education;

these measures will have to be complex and far-reaching to achieve

desegregation in fact.

* Both petitioners and certain of their supporting amici attempt

to raise the specter of law schools admitting large numbers of

unqualified black and other minority students with the result of

excluding qualified whites and eventually foisting unqualified attor-

neys on the black community. There is no basis in the record to

substantiate such a contention with regard to the University of

Washington. All the testimony clearly indicates that in every

instance persons were admitted who were reasonably believed to

be qualified and eapable of succeeding in law school and as lawyers.

5

Everyone else, including De Funis and most of the minority

group students, went through further processing.’®

De Funis’ complaint arises because in that processing

minority group students were handled separately from

majority group students.": All applications from minority

group members were given to two particular admissions

committee members who compared the applications against

each other. Majority group applications similarly were

compared with each other. The most promising in each

group were chosen and the two lists aggregated.

As to both groups much more than PFYA was con-

sidered, as indeed was proper. After all, the scale only

purported to predict what grades a student would make

in his first year of law school; it did not even predict his

performance throughout law school or on a bar examina-

tion. It manifestly could not measure criteria at least as

legitimate as the grades an applicant would receive in law

school, viz., his long term success and contributions to the

profession and the community. These more difficult predic-

tions were made on the basis of not only PFYA, but also

by weighing factors such as extracurricular activities,

interest in community affairs, letters of recommendation,

and the type of undergraduate curriculum pursued. As a

result, a number of majority group applicants with lower

%° Thus, this case does not involve anything analogous to the

“merit system,” or an attack on it. A PFYA score cannot be

equated with a score on a Civil Service examination, a typing test,

or a driving test. Certainly, regardless of whether a strict merit

system based on tests may be used under certain circumstances

(see, Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir.

1972) ), there is no constitutional requirement that it must be.

1 At least one amicus professes difficulty with the concept of

defining certain persons as members of “minority groups.” This

has presented no problem, however, either to Congress (see, 20

U.S.C. § 1619(9) (A), c> to this Court. See, Hernandez v. Tezas,

347 U.S. 475 (1954).

PFYA’s than De Funis were admitted or put on the wait-

ing list ahead of him.’*

The question, therefore, is whether the procedure now"

complained of by De Funis, that minority students and

majority students were compared only with others in the

same group, violated his constitutional rights. Simply

stated, the School recognized that the PF YA is significantly

less predictive of what it purports to measure for minority

than for non-minority students, largely because of historic

educational and social discrimination. This was the expert

testimony at trial (St. 128-131) and petitioner did not rebut

it. Just as the number of minority students admitted to the

University as a whole had been limited by the application

of standard criteria, as the President of the University

testified (St. 222-229), it could be expected that if the same

weight was given to the PFYA for both groups, it would

operate as a “built-in headwind” “ resulting in exclusion of

minorities from the Law School.

1* This fact is significant, since even if there had been no minority

admissions program this record does not demonstrate that De

Funis would have been admitted to law school. He was in the

lowest one-fourth of the waiting list, with at least fifty-five persons

ahead of him; thirty-six minority group applicants with PFYA’s

lower than De Funis were sent letters of acceptance, and only

eighteen accepted ; even if none had accepted he apparently would

not have been reached.

The original complaint did not challenge his exclusion on

racial grounds. In addition to the in-state resident issue, the com-

plaint urged, in essence, a denial of due process because others

had arbitrarily been admitted to the school even though they had

lesser qualifications than did petitioner (A. 14-15; 17). The ques-

tion of minority students was raised as a matter of defense (over

the objection of petitioner’s counse] (St. 280-231)) by the Law

School to paral Aira with lesser paper qualifications than

De Funis were admi before he was. Much of the dissenting

opinion below was an attack on the procedures and standards used

generally to select among the applicants, Whatever might be the .

mérits of a due process attack on the method of administering the

selection system, one has not been presented here. |

4 Griggs v. Duke Power Co., 401 U.S. 424, 482 (1971).

7

The School, therefore, took a course that was not only

prudent, but perhaps constitutionally required. If it did

not institute appropriate differential treatment of minority

applicants, a combination of a low minority acceptance

rate,** and selection by criteria which were known to have

questionable predictive validity, might lead to litigation by

members of excluded groups."*

The procedure employed—comparing minority appli-

cants with each other, and picking the most promising from

that group—avoided the perceived discriminatory effect of

comparing minority students with majority ones on the

basis of PFYA. The procedure was not designed to achieve

an over-all ranking that would absolutely correspond to

promise as a student and as a lawyer, since it is doubtful

that the data at hand permitted a pre-law school compari-

son of the ultimate professional promise of the applicants,

whether minority or majority. Rather, it sought to ensure

that no applicants were accepted of whom respondents did

not expect satisfactory achievement.

** As the Fifth Circuit has cogently said, “In the problem of

racial discrimination, statistics often tell much, and Courts listen.”

Alabama v. United States, 304 F.2d 588, 586, aff’d, 371 U.S. 37

(1962). See also, Turner v. Fouche, 396 U.S. 346 (1970).

16 De Funis and his amici urge that the Law School should not

have done anything about the effects of past discrimination because

neither the University nor the Law School had any responsibility

for it. This is an unacceptably insular way of viewing a particu-

larized result of the national problem of racism. i

This case involves a national law school, with a policy of admit-

‘ting a substantial number of students from out of state. Even if

the State and the institution themselves were totally free of any

taint of racial discrimination, the admission of some students

under criteria that operate to exclude others who were victims of

racial discrimination in other parts of the country could raise

serious equal protection questions. See, on v.. Mitchell, 400

U.S. 112, 183-84 (1970) (Black, J.) (the effects of racial discrimi-

nation, wherever it occurred, present a nationa] problem that can

be responded to even with regard to states without a history. of

discrimination). _

One reason for the differential treatment of minority

applicants was, of course, to make it possible for a signifi-

cant number to be admitted to Law School. And, just as

the basis for realizing that there was something wrong

with rigid selection procedures was the low number of

minority admissions, so the basis for weighing the effec-

tiveness of the new method was whether the number ad-

mitted reasonably reflected the number of minority persons

in the community at large. Thus, a goal was aimed for, but

there was no quota. The distinction between the two is

clear; a quota is a fixed number or set ratio that must be

filled and, generally, may not be exceeded. A goal is a

target to be used as a yardstick for judging the efficacy of

a program in achieving true equality. See, e.g., Swann v.

Charlotte-Mecklenburg Board of Ed., 402 U.S. 1, 25-26

(1971).

There was no quota, and at no time were minority ap-

plicants accepted who did not meet the same standard im-

posed on all applicants, minority and non-minority alike,

viz., the expectation of satisfactory achievement in law

school and the profession. Indeed, the Law School could

not, for the purpose of filling a quota, have deliberately

chosen a minority student with less over-all promise than

De Funis even if it had wanted to, because the data avail-

able was not sufficiently precise to allow such judgments.

Thus, it simply cannot be determined, and certainly not

from this record, that De Funis was kept out of law school

because of his race in the sense that unqualified minority

applicants were admitted on the basis of their race."

™ The admission of unqualified minority students in order to

obtain a fixed number, not the situation presented here, would

indeed be of > pagan constitutionality if it resulted in the

exclusion of other qualified applicants.

9

Another aspect of the admissions policies of the Law

School was its judgment that one factor in determining

the qualities relevant to the contribution an applicant

might make to the profession and the community, is whether

there is a lack of lawyers serving the needs of minorities

of which the applicant is a member. Certainly, a law

school, in assessing its obligation to serve the needs of

society, may decide that it will not use selection criteria

that prevent minority groups from obtaining legal repre-

sentation essential to the vindication of constitutional

rights."

In summary, the University of Washington acted con-

sistently with its Fourteenth Amendment duty to ensure

that black, Chicano, and American Indian applicants were

not in fact denied equal access to law school because of

factors relating directly to their race.* If the equal pro-

tection clause is ever to have practical meaning, it cannot

be interpreted to prohibit such a program for: “To use the

Fourteenth Amendment as a sword against such State

power would stultify that Amendment.” Railway Mail

Assoc. v. Corsi, 326 U.S. 88, 98 (1945) (Frankfurter, J.,

concurring).

18 See, NAACP v. Button, 871 U.S. 415 (1963) ; Sanders v. Rus-

sel, 401 F.2d 241 (5th Cir. 1968); Sobol v. Perez, 289 F.Supp.

392 (E.D. La. 1968).

* An analogy can be drawn to the recognized power of Congress

to adopt b remedial legislation it feels necessary to ensure the

effective enforcement of Fourteenth Amendment rights. See,

Katzenbach v. Morgan, 384 U.S. 641 (1966) ; cf., Welsh v. United

States, 398 U.S. 333, 371 (1970) (White, J., dissenting).

The Minority Admissions Program Does Not Violate

Title VL

Finally, a comment should be made concerning the al-

ternative ground advanced by De Funis, that § 601 of the

Civil Rights Act of 1964” invalidates the method by which

the Law School selected applicants.” We urge, to the con-

trary, that Title VI, in conjunction with the implementing

regulations issued and interpreted by the Department of

Health, Education, and Welfare, supports the School’s

actions. Recently, this Court upheld the power of HEW

to issue appropriate regulations pursuant to §601 in

exercising its authority to dispense funds in aid of educa-

tion. Lau v. Nicholas, US. , 42 USL. Week 4165

(Jan. 21, 1974).”

The relevant regulations, found in 45 C.F.R. 80.3 (1973),

are set out in the margin.” As noted in Lau, 80.3(b)(2)

* 42 U.B.C. § 2000(d).

** Respondents have urged that this issue is not

the Court. However, in the event it is determined the question

cae tue prepenty, Seed, aunioas wanes to blag fo Ge Courts

attention tion pertinent to its consideration.

ee en ee ee ee het Sieate Se bs pire

die oA erst yay thea egy ag Aer its

regulations their interpretation, as to terpretation of a

statute it is charged with enforcing. See, Trafficante v. Metropoli-

tan Life Ins. Co., 409 U.S. 2056, 210 (1973).

** 80.3(b)(2) A

aid,

:

11

prohibits the use of criteria or other methods of adminis-

tration that have the effect of cutting persons off from

programs because of their race, (42 U.S.L. Week at 4167.)

More explicitly, 80.3(b)(6)(ii) allows a recipient that has

not been guilty of deliberate discrimination to take af-

firmative action “to overcome the effect of conditions” that

have limited participation by racial minorities.

This is precisely what the University of Washington

Law School has done. Well aware of the small number of

minority students, and with substantial reason to believe

that this resulted because standardized criteria—doubtful

predictors of success as students or lawyers—screened

them out, the school took appropriate “action to overcome

[these] effects.”

The Department has construed Title VI, and the regula-

tions, to permit precisely the kind of action taken by

respondents, Thus, it approves of the use of differential

and “non traditional” criteria for the admission of minority

13

as to those questions here would be premature, because

the present record simply says little or nothing about

unforeseeable implications of new doctrine.

Respectfully submitted,

Jack Grezwseno

James M. Naserr, III

Cuartes Sreruex Ratston

Jevray A. Miwrz

Jouxsy J. Burize

10 Columbus Circle

New York, New York 10019

Attorneys for the NAACP Legal Defense

and Educational Fund, Inc.

Louis H. Pottax

Joum Baxen

Of Counsel

APPENDIX

Department or Hearn, Epvcation, anp WeLrare

September 25, 1972

Honorable Donald C. Brotzman

House of Representatives

Washington, D.C. 20515

Dear Mr. Brotzman:

Thank you for your inquiry of August 16 on behalf of Mr.

Kenneth Covell of Boulder, Colorado.

Mr. Covell is concerned about students he knows of with

good grades and good examination scores who were not

accepted to the University of Colorado’s law and medical

schools. Mr. Covell feels that the University rejected these

students because the Department of Health, Education, and

Welfare requires institutions of higher education receiv-

ing Federal funds to have a proportional representation of

minority students in its enrollment.

As you know, the Office for Civil Rights administers Title

VI of the Civil Rights Act of 1964, which requires that

recipients of Federal financial assistance offer their bene-

fits and services without regard to race, color, or national

origin. Under Title VI institutions of higher education must

recruit, admit and make all course offerings and college-

supported activities available to students in a nondiscrimi-

natory manner. However, no quota of minority students

is required to comply with this law. The University of

Colorado participates in various Federal financial assis-

tance programs, and, therefore, is subject to the require-

ments of Title VI. In fall 1970 the University reported to

la

2a

' Appendia

us that minority enrollment in its medical school was 3.2

percent. This is the latest data available to us at this time.

While the University did not file a separate report for its

law school, we are confident that minority enrollment in

this school is of the same order of magnitude as that of

the medical school.

This Office is aware that several institutions of higher edu-

cation receiving Federal financial assistance have estab-

lished programs to increase the number of minority group

students they enroll. Such programs may include special

efforts to recruit minority applicants, financial assistance

and evaluation of applicants’ potential through the use of

non-traditional criteria. Quite often institution officials

state a goal for a specified level of minority enrollment.

In those cases that have come to our attention, goals differ

from quotas in two main major respects. First, it is the

objective of the goals to increase the participation of

groups which have not been enrolled in significant numbers

in the past. Second, the goals do not constitute a ceiling,

ie., no more than a specified number will be admitted.

Clearly the intent of goals is the opposite of that of quotas,

to include rather than limit.

In general the programs described above are consistent

with the requirements of Title VI. Numerous court deci-

sions have held that differential treatment on the basis of

race is not a violation of the Constitution where its intent

is to overcome the effects of past discrimination. Negroes,

Spanish-surnamed Americans, and American Indians, as_

groups, have been subjected to various kinds of discrimina-

tion which have resulted in substantially diminished op-

portunities for them to derive the benefits of a higher ed-

ucation. It should be noted, however, that preferential ar-

~~

As eeee eens

3a

Appendia

rangements for minority students cannot be established on

a permanent basis. At some point, the appearance of

minority group members in an institution’s enrollment

would be such as to require abandonment or suitable modifi-

cation of the special programs.

We appreciate your personal interest in this matter. If

the Department can be of further assistance, please let me

know.

Sincerely yours,

(Sgd.) Patricia A. King

J. Stanley Pottinger

Director, Office for Civil Rights