Amicus Curiae Brief — DeFunis v. Odegaard

Supreme Court brief1974

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Introduction and summary of the argument ..............

AQUOS 48s « w55 Canis ocho o Cee 48S Wis teBe Fcc coc 6

I. Factual analysis: The traditional screening devices used

by the law school had a severely adverse impact on

nonwhite applicants and were not justified by any sub-

stantial state interest ..... 2.0.05 .ccs cece wnccccecce 6

A. The law school’s use of the college degree, the col-

lege grade point average and the law school admis-

sion test score as entry criteria almost entirely ex-

eluded minority applicants .................... 6

1. The college degree 6... i Seve ci cee ee 8

2. The college grade point average (GPA) ..... 9

8. The law school admission test (LSAT) ...... 11

4. The predicted first year average (PFYA) .... 13

B. The entry criteria which adversely affect minority

applicants are not justified by any substantial

SRMNO< CHINN F906 00s BS OS, ee cd 16

Fo RD OUP UO ob ks icpeccceccevll ew ck 16

2. The college grade point average (GPA) ..... 17

3. The law school admission test score (LSAT).. 23

C. The law school’s minority admissions program was

a reasonable attempt to rectify the exclusionary

effects of its entry criteria .................... 24

II. Legal analysis: There are four independent reasons

why the decision of the Washington Supreme Court

Stes Til MERGE 655 0’ lis 4003 04 te dn wn blank 6 OS. 26

A. Petitioner asks this court to issue an unconstitu-

tional order since the relief requested would re-

quire the law school to return to a system of ad-

missions that gives priority to white applicants

on the basis of discriminatory entry criteria

which are not justified by any substantial state

reece erts sty eit fant) Bio 27

1. The equal protection clause prohibits a public

law school from using entry criteria which dis-

. Title VI of the Civil Rights Act of 1964 pro-

hibits the use of invalid law school admissions

criteria which are discriminatory in effect ...

3. A decision not to allow public agencies sub-

stantial discretion to rectify their discrimina-

tory practices would be a decision to perpetu-

OO I oho ove tccccescanncsborre

The traditional presumption of unconstitutionality

does not apply to an ameliorative racial classifica-

tion challenged as a discrimination burdening

WE SG SFE) 6 EF Ea a REGU A HI 8 Fee

1. The minority admissions program does not bur-

den a minority group traditionally subjected

to private and public discrimination ........

2. The minority admissions program does not

nine litically Nid ait inwition

3. The minority admissions program cannot be

presumed to stigmatize racial minorities .....

Even if a compelling state interest is the standard

by which the university’s actions are to be meas-

sured, the university had such an interest ......

Table of Authorities Cited

Cases Pages

Armstead v. Starkville Municipal Separate School Dist., 461

F.2d.276 (6th Cir, 1998) -. aac -scegancavnvepdosics 23, 29, 37

Arnold v. Ballard, 6 E.P.D. 98675 (N.D. Ohio 1973) ....... 48

Associated General Contractors of Massachusetts, Inc. v. Alt-

shuler, 6 E.P.D, 98993 (1st Cir., November 30, 1973) ....49, 51

Baker v. Columbus Municipal Separate School District, 462

PAS TES FOG, BOCES occ cite viscccHe sedi ctectcute 37

Bolling v. Sharpe, 347 U.S. 497 (1954) ............-.-.00- 56

Bridgeport Guardians v. Bridgeport Civil Service Commis-

sion, 482 F.2d 1333 (2nd Cir. 1973) .............0ee000- 47

Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ............... 51

Brown v. Board of Education, 347 U.S. 483 (1954) ........ 57

Carmichael v. Craven, 457 F.2d 582 (9th Cir. 1971), cert.

Gua; GOW Use: WOO CIOtE) occ vented case cncconehicges 29

Carter v. Gallagher, 452 F.2d 327 (8th Cir.) (en banc), cert.

Gentes, “G06 -UB: G60 CICA oo sca Ce cace cea vdasaei ces 37, 47

Carter v. Jury Commission, 396 U.S. 320 (1970) .......... 28

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ........ 37, 39, 47

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

BDTS) .n-vceedb thas Cob xbbi | ies Hee 0% Lede cae seus 23, 29, 39

Coffey v. Braddy, No. 71-44-Civ.-J. (M.D., Fla., August 12,

WEES <5 hoe she nth 4 Chk dae kee oko bbb an ai ed eae ees he 48

Contractor’s Association of Eastern Pennsylvania v. Secre-

tary of Labor, 442 F.2d 159 (3rd Cir.) cert. denied, 404

UB. SOG CIGTT) nc cnn ccs nd deheppnede cs dkttbe Uebs tsb 51

Dandridge v. Williams, 397 U.S. 471 (1970) ............ 60

Davis v. County of Los Angeles, 73-63-WPG (C.D. Cal., July

PINS ssuo biceuted cewaae dees ke ceier abe ink dcekatins 48

Dobbins v. Local 212, IBEW, 292 F.Supp. 413 (S.D. Ohio

MME Fie .o 2» 0 cae atiera kubesn aeis ehaaths > kate iaaler en: 40

Emeryville Citizens for Better Government v. Neary, C-71-

940. C.B.B. (N.D. Cal., Oct. 26, 19783) .............-000 52

Erie Human Relations Commission v. Tullio, 360 F.Supp. 628

CWAls Big DUNNE a caces soca ute vivcbiiesivesteeeticecs 48

iv Tas_e or AvTHORITIES CITED

Pages

Fortson v. Dorsey, 379 U.S. 433 (1965) .........s..-055 32

Frontiero v. Richardson, 411 U.S. 677 (1973) .....-....... 59

Gaston County v. United States, 395 U.S. 285 (1969) ....... 59

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .............. 82

Graham v. Richardson, 403 U.S. 365 (1971) .............-. 59

Griffin v. School Board, 377 U.S. 218 (1964) .............. 28, 29

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

PFs cde St takeb ahemane te 3, 6, 11, 16, 17, 23, 28, 35, 36, 39, 41, 46

Gruenwald v. Gardner, 390 F.2d 591 (2nd Cir.) ; cert. denied,

SOO TS. CSS CIOGR) «oo oan cas ininpe arenes sae onndnes eden 58

Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th

CUFT! BETA SP AT RR 15

Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971)... 29

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) 54

Hernandez v. Texas, 347 U.S. 475 (1954) ........0. cee eeee 32, 57

Hill v. Texas, 316 U.S. 400 (1942) ....... ccc cece ee eeveeee 29

Hobson v. Hanson, 269 F.Supp. 401 (D.D.C. 1967), cert. dis-

missed, 393 U.S. 801 (1969) .......ccseeercstvnveannens 29

Hogue v. Bach, No. C-3693 (D. Colo. 1972) .....-..seseeee 48

Hunter v. Erickson, 393 U.S. 385 (1969) ........ceeeeeees 60, 61

In re Griffiths, 413 U.S, 717 (1978) 2.0... se cece ee eee eee 33

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) ........ 50

Joyce v. MeCrane, 320 F.Supp. 1284 (D.N.J. 1970) ........ 51

Katzenbach v. Morgan, 384 U.S. 641 (1966) ............... 50, 54

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert. denied,

386 U.S. 991 (1967) ........... Sere) BEE eat 29

Labine v. Vincent, 401 U.S. 532 (1971) ........-. eee eeeees 61

Larry P. v. Riles, 343 F.Supp. 1306 (N.D. Cal. 1972) ...... 29

Lau v. Nichols, 42 U.S.L.W. 4165 (Jan. 21, 1974) ....28, 42, 45, 46

Levy v. Louisiana, 391 U.S. 68 (1968) ............+-+--6- 61

Louisiana v. United States, 380 U.S. 145 (1965) ........... 28

Loving v. Virginia, 388 U.S. 1 (1967) ...........+.eee eee 57

Martinez v. Grand Rapids Civil Service Board, No. G-178-72,

6 Clr. Hs. Rev. 685 (W.D. Mich., Jan. 22, 1973) ......... 52

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .... 39

Tasiz or AuTHorities Crrep Vv

Pages

McLaughlin v. Florida, 379 U.S. 184 (1964) ............. 56, 57

Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) .......... -

NAACP y. Allen, 340 F.Supp. 703 (M.D. Ala, 1972) ....... 48

NAACP v. Button, 371 U.S. 415 (1963) ................45 32, 33

NAACP v. Civil Service Commission of San Francisco, 6

B.P.D.: $e066: (N.D, Oak. 1078) oo55 is oc cg iccccigees ban 48

NAACP v. Imperial County Irrigation District, No. 60-302-

OT (B.D. Gal. 11S) is aa. RSV eee. 52

Nixon v. Herndon, 273 US. 586°(1927) 08. BES. 59

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

920 (Sud Oly. B0CB) 65 VTC, SS I 29, 47, 61

Otero v. New York City Housing Authority, 484 F.2d 1122

GOA Cle. POTD) ou skecindeceestvedbaph abies JO SBR E. 29

Palmer v. Thompson, 403 U.S. 217 (1971) ...........0000s 29, 56

Pennsylvania v. O’Neill, 348 F.Supp. 1084 (E.D. Pa. 1972),

modified en bane, 473 F.2d 1029 (8rd Cir. 1973) ........ 47

Pennsylvania v. Stumph, C-69-239-06JCL (N.D. Cal., Decem-

bee DO BAUR) Sine i cikndinsdnXe dineuaraibe der deeedlan 52

Pennsylvania v. Sebastian, No. 72-987 (W.D. Pa., Nov. 20,

1972), affirmed by order, (3d Cir., June 7, 1973) ........ 48

Poreelli v, Titus, 431 F.2d 1254 (3d Cir. 1970) ............ 51

San Antonio School District v. Rodriquez, 411 U.S. 1 (1973)

ye br ry Wy ol OMT ay rene cy eyice (ye orn pry te 58, 60

Scott v. Sanford, 60 U.S, 393 (1857) ............ cece eens 62

Shield Club v. City of Cleveland, 5 E.P.D. 78406 (N.D.

Olas BUFR) sce cncddooculsccp shenepaaseedsesdebiaraneve 48

Slaughter-House Cases, 83 U.S. 36 (1878) ................ 57

Southern Illinois Builders Association v. Ogilvie, 327 F.Supp.

1154 (S.D. TL 1971), affirmed, 471 F.2d 680 (7th Cir.

RGTR) is ban So naib bE naw techen 14 bee ce OPER LANES 51

Springfield School Committee v. Barksdale, 348 F.2d 261 (1st

ORe, TRS: sois wats wehamece be de =e sbikc pated ance 61

Strauder v. West Virginia, 100 U.S. 303 (1880) ........... 56

Swann v. CharlotteMecklenburg Board of Education, 402

UB. BAG s cxtrea asd nis vacseeia- cant lis inca 49, 61

Sweatt v. Painter, 339 U.S. 629 (1950) .............se00e 68

Tasie or AurHorities Crrep

Pages

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

CASTER). 6. besa Mall SA CA NARA IETS Clie ahd seat obi 68

Turner v. Fouche, 396 US. 346 (1970) nadie bikie oweas een 28, 32

Udall v. Talman, 380 U.S. 1 (1965) .............ccueeeees 46

United Mine Workers v. Illinois Bar Association, 389 US.

NE CRE AG ov hi Ws Go de Nokes CARS DE CAs 54 33

United States v. Carolene Products, 304 U.S. 144 (1938) ....32, 59

United States v. Guest, 383 U.S. 745 (1966) .............. 54

United States v. Ironworkers Local 86, 443 F.2d 544 (9th

Cir.), cert. denied, 404 U.S. 984 (1971) ..........,..005, 40

United States v. Local 638, Enterprise Ass’n, 360 F. Supp.

SPP Tae SONOY a rs ee ee aes 40

United States v. Operating Engineers, Local 3, 0-71-1277

Se EU MOE MOMOE nok Satake oocenhaseedevteawtes: 52

United Transportation Union v. State Bar, 401 U.S. 576

ok MIE PDS ie RSD bP ae BS A RS Ro 33

Vulean Society v. Civil Service Commission, 6 E.P.D. 18974

COS IL i> crc AONE a Whie'dds cinprninrd’s’s pe aduw'es 47, 48

Weiner v. Cuyohoga Community College District, 19 Ohio 2d

35, 249 N.E.2d 907 (1969), cert. denied, 396 U.S. 1004

ERM CME is dais a ti ohb se daticin's Cink tna. we chins oceans asc 51

Western Addition Community Organization v. Alioto, 6

Sa Oe Cites CONE, TOD nib 0 0.5. 0.5.n0.d0s cin cavecanne 48

Williams v. New Orleans Steamship Ass’n, 341 F.Supp. 613

Sin Sin SEE bs, ichin yp cuntiieditindittinnn de tb cath dedilieats « 40

Wright v. Council of City of Emporia, 407 U.S. 451 (1972) 57

Reports and Articles

Baird, Blacks in Graduate and Professional School, Find-

SR WE ee, WERE oaks Ch sew dbec cecnvbaevces 9

Bell, Racism in American Courts, Cause for Black Disrup-

tion or Despair? 61 Calif. L. Rev. 165 (1973) ......... 65

Cleary, Test Bias: Validity of the Scholastic Aptitude Test

for Negro and White Students in Integrated Colleges

Tasie or AvtTHorities Crrep vii

Pages

Evans & Reilly, A Study of Speediness as a Source of

Test Bias, Journal of Education Measurement, vol. 9, no.

B ERROR | AWaseveaaa cpdakwbackts edad iets 11

Fruend, Constitutional Dilemmas, 45 B.U.L. Rev. 13 (1965) 54

Goolsby, A Study of the Criteria for Legal Education and

Admission to the Bar, 20 Journal of Legal Education 175

CREGFR kde nasds daviadetndentenes etek Va 24

Hoyt, The Relationship between College Grades and Adult

Achievement. A Review of the Literature (1965) ....17, 18,19

Price, Taylor, Richards and Jacobsen in Performance Meas-

ures of Physicians (1963) .........cuccsescccccces 19, 20, 21

Warren, Current Grading Practices (1971) .............. 21

Wechsler, Toward Neutral Principles of Constitutional Law,

13 Bary, Sag ter. A CGB), xi cin beast borne Dokshodsds 59

Yeager, Litigation Under Title VII of The Civil Rights

Act of 1964, The Construction Industry and The Problem

of The “Unqualified” Minority Worker, 59 Geo.L.J. 1265

(ADVE) ULE OVE Oa es Ceo teceieeceercestenoe 40

Statistical Data

United States Bureau of the Census, The Social and Eco-

nomic Status of Negroes in the United States, Current

Population Report Series, P-23, No. 38 (1970) ..:........ 8

Statutes and Regulations

Civil Rights Act of 1866, 42 U.S.C. 1981 ................ 37

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d

cevabacneds Ghee badeameness seeaerwet 6, 28, 41, 42, 43, 45, 46, 54

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

RRS E REYES TRE Serre Ee 35, 36, 37, 38, 39, 40, 46, 50, 54

S65 COR WN WE. ose vee ae 41, 42, 43, 44

38 Fed. Reg., §§17978 et seq. (July 5, 1973) ......00c00-. 44, 45

Supreme Court of the United States

Ocrosper Term 1973

No. 73-235

Marco DeF unis, et al., Petitioners,

vs.

CHARLES ODEGAARD, President of the University

of Washington, et al., Respondents.

On Writ of Certiorari to the Supreme Court of

the State of Washington

BRIEF OF THE LEGAL AID SOCIETY OF ALAMEDA COUNTY AND

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL., AS AMICI CURIAE

INTEREST OF LEGAL SERVICE ORGANIZATIONS

Legal Aid Society of Alameda County, Atlanta

Legal Aid Society, Inc., Legal Aid Bureau, Ine. of

Baltimore, Legal Aid Society of Cleveland, Hawaii

Legal Services Project, Michigan Legal Services As-

sistance Program, National Employment Law Proj-

ect, Community Legal Services, Inc. of Philadelphia,

and Seattle Legal Services Center, are legal service

organizations which provide legal assistance to low-

income individuals. A high proportion of these clients

are members of racial minority groups. Amici have

found that they are able to deliver more effective legal

assistance to the individuals and communities they

serve when the legal staff includes minority attorneys

familiar with the problems and persons of the com-

munity, Many legal service attorneys, including some

who have worked on the preparation of this brief,

were admitted to law school through a minority ad-

missions program. Such programs are essential if

legal services and the entire legal profession are to

achieve any meaningful level of integration.

Like the NAACP, legal service organizations are

continually involved in efforts to combat the effects

of racial discrimination in employmert, housing,

schools, and many other areas. We believe that prog-

ress in civil rights depends primarily upon the volun-

tary efforts of public and private organizations to

rectify the widespread effects of racial discrimina-

tion. Racial discrimination, although often unin-

tended, is so pervasive that the litigation process

cannot be relied upon by itself to protect the rights

of racial and ethnic minorities. For these reasons, we

have been involved in the creation of numerous af-

firmative action programs, voluntarily adopted by

public agencies, that use racial classifications to rem-

edy racial discrimination. Reversal in this case would

seriously jeopardize, if not destroy, these and future

programs, to the severe detriment of our minority

clients.

ee Te Oe ae Ee ee ee

INTEREST OF THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

The National Association for the Advancement of

Colored People (NAACP) is a nonprofit membership

association representing the interests of approxi-

mately 500,000 members in 1800 branches throughout

the United States. Since 1909, the NAACP has

sought through the courts to establish and protect the

civil rights of minority citizens. In this respect, the

NAACP has often appeared before this Court as an

amicus in cases involving school desegregation,

employment, voting rights, jury selection, capital

punishment, and other cases involving fundamental

human rights.

The present case is of particular importance to the

NAACP because it centers around a public educational

institution’s efforts to cure voluntarily the effects of a

racially discriminatory selection device. The NAACP

has long encouraged private and public bodies to take

such steps and has supported legislation designed to

foster voluntary compliance with the law. The con-

cern of the NAACP is that, should this Court rule in

favor of the Petitioner; the concept of voluntary

compliance will be wholly nullified, educational insti-

tutions attempting to ‘‘objectify” their selection pro-

cedures will be encouraged to intensify their reliance

upon the paper qualifications of applicants; and such

items as the Law School Admissions Test, college

degrees, and grade point averages, will once again

become ‘‘masters of reality.” Griggs v. Duke Power

Co., 401 U.S. 424, 433 (1971). A foreseeable byprod-

ENF ET I LGPL, SOIT EOE GOBASE TAAL ITED

uet of this process will be the resegregation of every

public educational institution using such devices, as

the record indicates will be the case with respect to

the University of Washington Law School.

CONSENT OF THE PARTIES

With the consent of both parties pursuant to Rule

42 of the Supreme Court Rules, Amici respectfully

submit this brief in support of Charles Odegaard, et

al., Respondents.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

This case has repeatedly been characterized as one

involving the legality of a ‘“‘preference given on the

basis of race alone to members of certain so-called

‘minorities’.” Petitioners’ Opening Brief, p. 2. This

characterization totally distorts the facts of the case.

This is a case in which a racial classification is used

not to grant a preference but, on the contrary, to

alleviate severe discrimination burdening minority

groups. The only person asking for a racial prefer-

ence in this case is the petitioner, who asks this Court

to grant a racial preference to whites by preventing

the Law School from taking action which is abso-

lutely necessary to neutralize the severely discrimina-

tory effects of its own entry criteria.

The most fundamental fact in this case is that if

the Law School had not adopted a minority admis-

RTA PEI ELTL OSE OP PE BEE | ae

sions program, ite entry system would have been so

gromaly dr ‘matory as to result in the creation of

AN eunety! ma. egregated student body. Without the

minority admimsions program, only one, or at most

two, of all black, Chicano, Filipino and Native

American applicants would have been admitted. Fur-

thermore, the discriminatory entry criteria do not

measure the ability to perform in the legal profes-

sion, or for that matter, the ability to perform in law

school. Thus, Petitioner requests that he be granted

an admissions preference on the basis of severely dis-

eriminatory entry criteria which are invalid and

unjustified by any state interest.

This brief admittedly attacks several revered tradi-

tions in the admission procedures of most educational

institutions. It does so for a reason. This brief will

show that the University of Washington Law School

has in the past used entry criteria which have little

or no demonstrable relationship to law school per-

formance, and even less to subsequent performance as

a lawyer. Given this background, Amici argue that

the Law School not only has the freedom to try dif-

ferent selection criteria which will increase minority

participation, while not hurting the quality of legal

education and legal practice, but in fact may be con-

stitutionally required to use different criteria.

This brief presents four reasons why the decision

of the Supreme Court of the State of Washington

should be affirmed. First, as stated above, the relief

requested by petitioner would be illegal if granted

since it involves a return to a discriminatory system

which does not satisfy the requirements of the equal

protection clause, the rule of Griggs v. Duke Power,

and Title VI of the Civil Rights Act of 1964.

Second, public agencies such as the Law School have

discretion to adopt programs, such as the minority

admissions program, designed to rectify the discrimi-

natory effects of their own screening mechanisms.

Third, the Law School’s minority admissions pro-

gram does not involve the type of raciai classification

to which the presumption of unconstitutionality ap-

plies; since the program is rationally related to legiti-

mate state interests, it is constitutionally permissible.

Fourth, even if the racial classification were charac-

terized as suspect, the minority admissions program

serves a compelling state interest and is, therefore,

constitutionally valid. Each of these four reasons is

sufficient for affirmance.

ARGUMENT

I. FACTUAL ANALYSIS: THE TRADITIONAL SCREENING DE-

VICES USED BY THE LAW SCHOOL HAD A SEVERELY AD-

VERSE IMPACT ON NONWHITE APPLICANTS AND WERE

NOT JUSTIFIED BY ANY SUBSTANTIAL STATE INTEREST.

A. The Law School’s use of the college degree, the college grade

point average and the Law School Admission Test score as

entry criteria almost entirely excluded minority applicants.

The record before this Court establishes that the

Law School, in screening applications for the class

which was to enter in 1971, used at least three sepa-

rate criteria which were severely discriminatory in

effect against nonwhite persons.’ First, the Law

School had an absolute requirement that applicants

be college graduates. Applications from nongraduates

were not even considered. Second, the Law School

used the applicants’ college grade point averages

(GPA’s) as a screening factor. Third, the Law

School used the applicants’ scores on the Law School

Admission Test (LSAT) as a screening factor. Fur-

thermore, the GPA and LSAT were not simply two

screening devices among many; they were the funda-

mental criteria which determined in most instances

which persons were to be admitted or excluded. The

record makes it quite clear that if nonwhite race had

not been used as a neutralizing entry criterion, all but

one of the nonwhite applicants (excluding Asian)

would probably have been denied admission, nearly

all of these on the basis of LSAT score and GPA

alone. The severely discriminatory effect of each of

the three entry criteria is explained fully in the fol-

lowing sections.

1Respondents, in presenting their case below, did not concentrate

on making a clear record regarding the racially discriminatory

effects of their own entry criteria. This is quite understandable

since it is not easy either to recognize or to display publicly the

facts regarding racial discrimination within one’s own organization.

It is therefore not surprising that respondents chose to present the

case in terms of the permissibility of their minority admissions pro-

gram rather than in terms of the illegality of their traditional entry

system. Despite the fact that no direct effort was made to prove

the discriminatory effect of the entry criteria, however, the record

does contain sufficient information to compel the conclusion that

the entry system would have discriminated against nonwhites if

race had not been used as a neutralizing entry criterion.

1. The college degree.

Information gathered during the 1970 Census dem-

onstrates that the percentage of white persons who

obtain college degrees is much higher than it is for

persons of nonwhite races.? In 1970, only 6.1% of

all black persons between the ages of 25 and 34 had

completed four or more years of college while 16.6%

of white persons between the ages of 25 and 34 had

completed four or more years of college. Census Re-

port at 81, Table 67. Thus, the percentage of white

persons who have completed four or more years of

college is nearly three times as high as the per-

centage of black persons.

TABLE A

PERCENT OF POPULATION 25 To 34 Yrars OLp WHO

CoMPLETED F'our YEARS OF COLLEGE OR More.

Black White

1960 4.3% 11.7%

1966 5.7% 14.6%

1970 6.1% 16.6%

Additional tables which appear at pages 82 and 84

of the Census Report show that the rs.al disparity

also exists in present college enrollment and that

other minority races are similarly underrepresented.*

2Census information is, of course, subject to judicial notice by

this Court. Statistics comparing college attendance of black and

white persons have been set forth in The Social and Economic

Status of Negroes in the United States, 1970 BLS Report No, 394.

published in 1971 by the Bureau of the Census [hereafter referred

to as the Census Report].

’The use of the college degree as a strict prerequisite for entry

may account in large part for the fact that only 4.4% or 70 out of

1601 applicants for entry into the Law School in 1971 were non-

—

2. The college grade point average (GPA).

A recent study by Leonard L, Baird of the Educa-

tional Testing Service (hereinafter ETS) has estab-

lished, on the basis of solid and extensive data, what

has been known from narrower stidies for a long

time, namely, that the average college GPA of white

students is substantially higher than of nonwhites.

Baird, Blacks in Graduate and Professional School,

Findings, val. 1, no. 2 (Princeton, N. J.: Educational

Testing Service, 1974).* The study was based upon a

survey of 21,000 students who were seniors in 1971

at 94 colleges across the nation.

For purposes of this brief, the key finding in

Baird’s study is set forth at page 5.

About a third (34 percent) [of the black stu-

dents] had undergraduate grades of C or C+,

compared to 16 percent of the whites; 44 percent

had B grades compared to 32 percent of the

whites; and only 21 percent had B+, A or A+

grades compared to 50 percent of the whites.

In tabular form, these findings are as follows:

RAcE

GPA | Black White

B-+ and above 21% 50%

B 44% 32%

C or C+ 34% 16%

white. Clearly some discriminatory mechanism was operating even

prior to the receipt of applications, and it seems safe to conclude

that the college degree requirement played a substantial role in

reducing the percentage of minority applications to such a dis-

proportionate level.

‘This study is about to be published,

As these findings show, the percentage of white cvi-

lege students having GPA’s of B+ or above is nearly

two and one-half times as high as that of blacks, and

the percentage of white students having GPA’s in the

C range is less than half that of blacks. The severely

discriminatory effect of the use of the college GPA

as an entry criterion for graduate school is particu-

larly striking in view of the fact that most graduate

schools tend to expect at least a B+ college GPA on

the part of those students to whom they offer admis-

sion.®

From the data available in the record in the pres-

ent case, it appears that the use of college GPA’s for

screening Law School applicants in 1971 would have

had a substantial discriminatory effect if it had not

been neutralized by the minority admissioris program.

Of the 328 applicants whose GPA’s are reported in

the Single Appendix, only 4.2% of the whites had

GPA’s below 3.0, while 43.2% of the nonwhites had

GPA’s below 3.0 (A-37-46).°

5Baird’s study confirms findings of previous studies which were

based on narrower data. See, e.g., Cleary, Test Bias: Validity of the

Scholastic Aptitude Test for Negro and White Students in Inte-

grated Colleges (Princeton, N.J.: Educational Testing Service,

1966), at 16-19.

®This analysis is based solely upon data in the record relating

to persons invited to attend or on the waiting list as of August 1,

1971. If Asians were excluded from ihe figures for nonwhites, the

discriminatory effect would be substantially greater than that shown

in the table. On the other hand, if GPA’s of the other white appli-

cants were taken into account, the difference might be lowered. The

difference would not, however, be neutralized, since the severe dis-

parity between PF'YA’s of whites and nonwhites reflects substantial

disproportion in both GPA’s and LSAT scores. See section

I(A) (4).

Race

GPA Nonwhite White

Below 3.0 43.2% 4.2%

(19) (12)

3.0 to 4.0 56.8% 95.8%

(25) (272)

8. The Law School Admission Test (LSAT).

A recent study demonstrates that blacks score on

the average substantially lower than whites on the

LSAT.’ Evans & Reilly, A Study of Speededness

as a Source of Test Bias, Journal of Education Meas-

urement, vol. 9, no. 2 at 123-31 (1972). The study

was based upon a comparison between the LSAT per-

formance of 465 black students enrolled in predomi-

nantly black southern colleges and a random sample

of 2495 students tested at regular testing centers in

1970. The purpose of the study was to determine

whether the time limits involved in the LSAT have

a discriminatory effect on blacks. In order to reach

any conclusions on this issue, the study team had to

generate data on the mean LSAT scores of the spe-

cial black sample and the regular sample. These data

are set forth in the following table:

7This Court has had first-hand experience with discriminatory

written aptitude tests in the Griggs case, in which the Wunderlic

Personnel Test was held to be discriminatory and its use enjoined.

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

Mean LSAT Score

Black sample 56.12 (n=230)

(speeded )

Black sample 56.49 (n=235)

(unspeeded )

Regular sample 86.27 (n=1251)

(speeded )

Regular sample 85.99 (n=1245)

(unspeeded )

As the table shows, the black students had an average

score of roughly 56 while the regular students had an

average score of roughly 86. The discriminatory ef-

fect was, in short, drastic.’

The record in this case strongly suggests that the

unneutralized use of LSAT scores would have had a

severely discriminatory impact on the applieants for

Law School entry in 1971. The following table is

based upon data contained in the Single Appendix at

37-46 for the 330 applicants who were either invited

to attend the Law School or placed in the top two

quartiles of the waiting list.

that no fee was charged. It is clear, however, that these factors

cannot account for the drastic difference in scores.

This is confirmed by two recent but not yet published studies

by the Educational Testing Service, which demonstrate substan-

en i te mean LSAT scores of whites and nonwhites. While

we have informed of these studies ETS personnel, ETS

has so far refused to make these studies pu lic.

RRR I EET EE TIE

Race

Nonwhite White

600 and above 27.3% 87.7%

LSAT Score

below 600 72.7% 12.3%

500 and above 59.1% 100.0%

LSAT Score

below 500 40.97% 0.0%

60 and above 29.5% 76.5%

Reading Score

below 60 70.5% 23.57%

Thus, the conclusion is unavoidable that the Law

School’s use of the LSAT as an entry criterion would

have had a severe racially discriminatory effect if it

had not been neutralized by the minority admission

program.

4. The Predicted Pirst Year Average (PFYA).

The extremely discriminatory effect of the Law

School’s screening system is further evident from the

facts present in the record regarding the use of the

Predicted First Year Average (PFYA) as a major

screening factor. The PFYA is a composite measure

based upon college GPA (junior-senior years) and

LSAT scores. Since, as shown above, both of these

criteria are discriminatory, it is no surprise that the

PFYA is also discriminatory. The following table

shows that, if the PFYA’s of all 1601 Law School

applicants are taken into account, the percentage of

whites who had PFYA’s above 75 was more than two

and one-half times that of nonwhites.

Race

PFYA Nonwhite White

Above 75 12.9% (9) 94.0% (531)

Below 75 87.1% (61) 66.0% (1000)

Petitioner, Marco DeFunis, had a PFYA of 76.23.

At that score, the disparity between whites and non-

whites is even more extreme. The rate at which non-

white applicants achieved PFYA’s above that figure

was nearly six times the rate of the nonwhite appli-

cants, Most striking is the fact that only one non-

Asian minority in comparison to 282 whites achieved

a score above 76.23.

Race

Nonwhite

PFYA. (Excluding Asians) White

Above 76.23 3.2% (1) 18.4% (282)

Below 76.23 96.87% (30) 81.6% (1249)*

*The tables in this section are based upon figures set forth in the

Single Appendix. 540 of the 1601 applicants had PFYA’s above

75 (A-34). 9 of the 44 nonwhite applicants invited to attend had

PFYA’s above 75 (A-3746). Since nonwhites with much lower

PFYA’s than 75 were admitted, it is assumed that all of the 26

nonwhites who were denied had PF YA’s lower than 75. Since only

9 of the 540 applicants whose PFYA’s exceeded 75 were nonwhite,

the other 531 were white.

288 applicants had PFYA’s above 76.3 (A-34) and therefore

above Mareo DeFunis whose PFYA was 76.23 (A-34). Only 6

nonwhites had PFYA’s above DeFunis (A-37-46, 52). Therefore,

at least 282 of the 1531 white applicants had PFYA’s above De-

Funis. Only 1 out of 31 nonwhites (excluding Asians) had

PFYA’s above De Funis (A-56). Note, also, that if the 26 non-

whites who were denied admission were included in this table, the

amas | om

When these figures are analyzed further, it appears

that if the Law School had not sought to neutralize

the discriminatory effect of the PFYA, the admis-

sions system would have resulted in an essentially

segregated Law School. In all probability, of the

combined applicants from the black, Chicano and

Native American races, at most two would have been

admitted if the Law School had not developed a

minority admissions program. Out of 1315 white ap-

plicants with PFYA’s below 76.20, only 33 (2%)

were invited to attend. Since all but one of the non-

Asian minority applicants had PFYA’s below 76.20,

we must assume that if race had not been used as a

factov, only 2% would have been invited to attend.

Thus, at most, one black, Chicano or Native Ameri-

can might have been invited in addition to the one

who had a PFYA above 76.20.

In sum, the unneutralized use of the Law School’s

entry system (including the use of the college degree,

the GPA, the LSAT score and the PFYA) would

have had an almost totally exclusionary effect on non-

Asian minority applicants and would have perpetu-

ated the past racially segregated character of the

Law School.”

nonwhite percentage would be even lower. Thus, the 3.2% figure

is substanti higher than the —— figure.

It should be noted that these tables include data on all 1531

white applicants, so the differences are real and not subject to any

arguable reduction.

There are cases which suggest that a fourth factor, the require-

ment of recommendation letters, may also have been discriminatory.

See, e.g., Hawkins v. North Carolina Dental Society, 355 F.2d 718

(4th Cir. 1966); Meridith v. Fair, 298 F.2d 696 (5th Cir. 1962).

B. The entry criteria which adversely affect minority applicants

are not justified by any substantial state interest.

1. The college degree.

Policies governing requirements for bar member-

ship in various states demonstrate that there is no

substantial reason for using college graduation as a

prerequisite for entry into law school. See, e.g,

Black’s Law Dictionary (Rev'd 4th ed. 1968), pp.

UXXV-LXXX. As late as 1968, only seven states re-

quired a college degree or its equivalent as a prereq-

uisite to beginning law study. Ibid. The American Bar

Association’s recommendation was only three years’

college study before the start of law school. Ibid.

Furthermore, the entire history of the Americal legal

profession flies in the face of any contention that a

college degree requirement for lawyers is necessary

to the operation of the legal profession. This Court

can take notice of the fact that college graduation was

historically not a requirement for entry into law. On

the contrary, the legal profession, like the other skilled

trades, used apprenticeship as its training method.

Persons seeking to become lawyers obtained positions

in the offices of practicing lawyers and learned law

through on the job training.

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

this Court emphasized the danger of using diplomas

and degrees as fixed barriers to economic opportuni-

ties.

The facts of this case demonstrate the inade-

quacy of broad and general testing devices as well

as the infirmity of using diplomas and degrees as

fixed measures of capability. History is filled

with examples of men and women who rendered

highly effective performance without the conven-

tional badges of accomplishment in terms of cer-

tificates, diplomas or degrees. 401 U.S. at 433.

Nowhere is this statement more applicable than in the

legal profession, In this regard it is worth noting

that Abraham Lincoln, who had only one year of for-

mal education, would have been summarily denied ad-

mission under the criteria used by the Law School.

2. The college grade point average (GPA).

Available evidence from the social sciences demon-

strates that college grade point average does not have

a substantial correlation with success in law or in-

deed in any other vocation. One study summarizes

the available research on the issue through 1965. Hoyt,

The Relationship between College Grades and Advit

Achievement. A Review of the Iiterature (Iowa City,

Iowa: American College Testing Program, 1965). In

his report, Hoyt examined the relationship between

college grades and adult achievement. in business,

teaching, engineering, medicine, scientific research,

miscellaneous additional occupations (including law)

and non-vocational activities. The overall conclusion

of the study is that college grades have no demon-

strable relationship to any measures of adult accom-

plishment.

Although this area of research is plagued by

many theoretical, experimental, measurement, and

statistical difficulties, present evidence strongly

suggests that college grades bear little or no rela-

tionship to any measures of adult accomplish-

ment, Id. at i. (Emphasis added.)

The conclusions reached in Hoyt’s report for the

specific areas examined are as follows:

Business: “The weight of evidence suggests no

relationship between the two [college grades and

future success in business].” Id. at 12.

Teaching: “Only isolated examples from past

research indicate a correlation between grades

and a measure of teaching success. In those in-

stances where positive results were found, the re-

lationships were generally of a very low magni-

tude.” Id. at 20.

Engineering: “Until more intensive work is done

to devise suitable criteria of engineering success,

the relationship of college grades to engineering

performance cannot be established definitely.” Id.

at 24.

Medicine: “At this time, medical school grades

seem to bear a positive relationship to the early

success of physicians. These grades are appar-

ently not predictive of physician performance

after the first few years of practice. The evidence

suggests that undergraduate grades are unrelated

to success in medical practice.” Id. at 30.

Scientific research: “While all findings are not

perfectly consistent, college grades seem to have

no more than very modest relationship to mea-

sures of research performance.” Id. at 36.

These findings are quite striking for several reasons.

First, the conclusion that is consistently reached is

that college grades have either no correlation or at

best a very modest correlation with adult achieve-

ment. Second, the studies focused on professional

activities such as medicine and engineering, which are

sufficiently similar to law to raise similar doubts about

the relationship between college grades and success

in legal work. Third, the report even rebuts the re-

lationship between college grades and success in such

purely “academic” fields as scientific research, where

one would expect some substantial relationship to exist

if anywhere. Thus, on the basis of the available re-

search, it seems safe to conclude that college grades

are certainly not significantly related to success in the

down to earth, rough and tumble of law practice and

probably not related even to success in the more aca-

demic side of law, including research, teaching and

appellate work.**

Perhaps the mo: { sophisticated study on this subject

was that reported by Price, Taylor, Richards and Ja-

cobsen in Performance Measures of Physicians (Uni-

versity of Utah, 1963). In carrying out the study, the

team analyzed approximately 200 performance mea-

sures (including ratings by other physicians, self-

ratings, number of requests for consultation, contribu-

tions to the field, quality of hospitals in which work

11The available research dealing with the legal profession itself

was unfortunately too meager to allow any firm conclusion. These

studies are reported at page 37 of Hoyt’s report. Two rather early

and unsophisticated studies (Kunkel 1917; Gambrill 1922) sug-

gested “a modest relationship between academic and occupational

success.” A later study (Jepsen 1951) involving doctors, lawyers,

and engineers shows “a significant negative correlation (—.15) ...

between college GPA and salary.”

Te re casa ed Biase

was performed, etc.) and then settled on 80 measures

which were used for computer analysis. The sample

studied included 102 medical school faculty members,

190 certified medical specialists and 217 general prac-

titioners. The results of the study are set forth in the

following important statement:

A second, very consistent finding of this re-

search was that academic achievement does not

bear a positive relationship to performance as a

practicing researcher, academician, or physician.

On the contrary, in each of our five studies both

premedical and medical school achievement was

found to be essentially independent of the numer-

ous measures of professional contributions, ac-

complishments, and activities that we analyzed.

. . . [A]ecross all groups studied . . . academic

grades showed a zero (chance) relationship to our

measures of physician performance. In view of

this, medical school selection programs, which

tend to select students that have attributes neces-

sary for successful accomplishment in medical

school and assume that these same attributes are

also necessary for performance in medical prac-

tice, should be searchingly examined. Id. at 111.

(Emphasis added.)

The Price, Taylor report is important because it is

an extremely sophisticated study of an important pro-

fessional field which demonstrates a radical absence

of relationship between college grades and profes-

sional performance.

The studies reported in this section raise another

important point, namely the relationship between law

school grades and success in the practice of law. The

studies indicated that there is no substantial correla-

tion between graduate school grades and success in

professional life. The Price, Taylor study, for exam-

ple, found that “both premedical and medical school

achievement” showed a “zero (chance) relationship”

to physician performance. This finding was confirmed

by Hoyt, who states that medical school grades are

“not predictive of physician performance after the

first few years of practice.” Hoyt, supra at 30. Thus,

even if college grades did accurately predict law

school grades, this would not justify the use of col-

lege grades as a law school entry criterion, since law

school grades are immaterial to success in the legal

profession, the agreed goal of the law school program.

Finally, and this is the point which ultimately re-

duces petitioner’s position to its true absurdity, col-

lege GPA’s are not even good predictors of law

school grades. In fact, college GPA’s are not even

good predictors of first year law grades.

Yet even if the probability of earning good

grades is accepted as the most justifiable basis

for selecting graduate students, problems still re-

main in the use of undergraduate grades for se-

lection. They just don’t predict graduate school

grades very well.

Studies relating undergraduate grades to first-

year grades in graduate and professional schools

over the past 20 years and in all kinds of pro-

grams have shown correlation coefficients that

fluctuated around the value 0.30. Warren, Cur-

rent Grading Practices (Washington, D.C.: Amer-

ican Association for Higher Education, 1971) at 5.

In short, college GPA’s are relatively poor predictors

even of first year graduate school grades. What about

college GPA’s as predictors of second and third year

grades? Here the performance is even poorer, partic-

ularly in clinical courses.”

Predictions of grades beyond the first year of

graduate school have been still lower, and predic-

tions of grades in clinically oriented programs

have been little better than chance. Jd. at 6.

Once these facts are understood, the irony of peti-

tioner’s position becomes manifest. Petitioner asks this

Court to order the Law School to admit him in pref-

erence to nonwhite applicants on the basis of a cri-

terion which purports to predict first year law school

grades, but which does so poorly, which predicts sec-

ond and third year grades even more poorly, which

does not predict grades in clinical courses and which

does not predict the achievement of the law school

student after graduation. To grant petitioner’s re-

quest would be to raise first year law school grades

to a position of independent significance which they

cannot begin to merit and then use them as a basis for

denying to the nonwhite races entry into the legal

profession, thereby ignoring one of the most important

rights in the American system, namely, the right to

equality of opportunity without regard to race. As

Hoyt stated in the conclusion of his study.

12Clinical courses are often more representative of actual work

in the legal profession generally than are the purely academic

courses,

PETE ORY ETP TNO Te Me MM I NATH MONIT, ON NNT RI AEN NR

The practice of basing admission to schools

of education, business, engineering, or medicine**

largely or exclusively on undergraduate grades

seems indefensible. Hoyt, supra at 49-50.

8. The Law School Admission Test Score (LSAT).

The record is totally devoid of any evidence that the

LSAT is job related, i.e., that it is a valid predictor

of performance within the legal profession. One rea-

son for this is that no validation studies have been

undertaken, This fact has been confirmed by the Ed-

ucational Testing Service, the organization which is

responsible for administering the LSAT, Further-

more, it is very unlikely that the LSAT (an aptitude-

type test) would correlate with success in a general

field as broad and diversified as the legal profession.

The federal courts have consistently frowned upon the

use of a single general symbolic-analytic aptitude test

as a screening device for entry into a general field

containing a wide variety of different jobs for the ob-

vious reason that written tests simply cannot accu-

rately measure the qualification of individuals for

widely divergent human activities. See, e.g., Griggs

v. Duke Power Co., 401 U.S. 424 (1971) (Wunderlic

Personnel Test); Armstead v. Starkville Municipal

Separate School District, 461 F.2d 276 (5th Cir.

1972) (Graduate Record Examination); Chance v.

Board of Examiners, 458 F.2d 1167 (2d Cir. 1972)

(National Teachers Test).

18 And, we would respectfully submit, law.

see aks POO PEE, CPI I MIG e LL eet, be PORTER ae SE TYP ee

Furthermore, the available evidence suggests that

the LSAT is not even a valid predictor of law school

grades. See, e.g., Goolsby, A Study of the Criteria for

Legal Education and Admission to the Bar, 20

Journal of Legal Education 175 (1967):

Research reports to date present overwhelming

evidence that tests used in the selection process

do not predict the criterion of grades at any prac-

tical level, including a report concerning LSAT

(Barbara Pitcher, 1965) published by Educa-

tional Testing Service.

The Court should note that the LSAT is designed

solely to predict first year law school grades, If sec-

ond and third year grades are taken into account, the

correlation is even below that reported by Goolsby.

Finally, the LSAT is not designed in any way to pre-

dict performance in clinical courses, which may be

more direetly related to actual performance within

the legal profession than grades-in.academic courses.

C. The Law School's minority admissions program was a reason-

able attempt to rectify the exclusionary effects of its entry

criteria.

We have demonstrated that if the Law School’s

minority admissions program had not existed its entry

criteria would have excluded all but one. or at most

two, black, Chicano, and Native American applicants.

Furthermore, we have demonstrated that the exclu-

sionary criteria are invalid since they do not measure

the ability of the applicant to practice law, or for

DRY ANN IM GaN EAPC ELINOR RY HHL RUIN LMS YELLIN SI ON AMEN 1 TUN ME HA aed mvt

PARA SS TO WHEY

that matter, the ability of the applicant to perform

in law school. In any case, it is clear that the record

does not demonstrate that the entry criteria are valid.

The Law School’s minority admissions program was

a reasonable attempt to neutralize the exclusionary

effect of the invalid entry criteria. Unlike a quota,

the minority admissions program did not establish an

inflexible percentage or number of minority appli-

cants to be admitted regardless of their qualifications.

The minority admissions program was a_ perfectly

proper attempt by the Law School to provide an

alternative method for locating qualified minority

applicants without being solely restricted to the dis-

criminatory and invalid entry criteria that had un-

justifiably excluded them in the past.

The evidentiary record indicates that approximately

twelve percent (eighteen out of one hundred and fifty)

of the enrollees at the Law School in 1971 were mi-

nority. This percentage is substantially less than the

percentage of minorities in the United States, i.e., ap-

proximately 16.3% not ineluding Asians. This fact

is particularly important in light of the explicit pol-

icy of the Law School to become a national law

school and to seek students throughout the United

States. Furthermore, the percentage of minorities ad-

mitted to the Law School reasonably reflects the mi-

nority percentage in the immediate Seattle area

(11.0% not including Asians) and in the Western

United States (15% for the states of Washington,

Oregon, California, Montana, and Idaho). These per-

centages clearly indicate that the Law School’s minor-

ew Lal A ld

—

ity admissions program only neutralized the discrim-

inatory effects of its entry system."*

It is important to note that the minority admissions

program does not result in the admission of unquali-

fied persons. On the contrary, it is based upon an

accurate perception by the Law School that the mechan-

ical entry criteria are not adequate measures of quali-

fications for minority persons. Indeed, as discussed

above, the entry criteria do not even validly measure

the qualifications of white applicants. This points

out a fundamental fallacy that reappears consistently

in the briefs submitted by petitioners and amici. They

argue that Marco DeFunis is more qualified than the

minorities who were invited to attend the Law School.

Yet, the contention that petitioner is more qualified

is primarily based upon the fact that he had a some-

what higher performance on the PFYA. Since the

PFYA is an invalid measure of qualifications, the

small difference in the PFYA scores simply does not

prove that he is more qualified.

I. LEGAL ANALYSIS: THERE ARE FOUR INDEPENDENT

REASONS WHY THE DECISION OF THE WASHINGTON 8U-

PREME COURT MUST BE AFFIRMED.

Petitioner’s request for relief must be denied for

four separate reasons. First, the relief requested by

petitioner would contravene the equal protection

14We believe that even if the Law School had enrolled a higher

percentage of minorities than presently reside in the western states,

this would have been a proper means of eradicating the effects of

its own past discrimination. In any case, it is not essential to reach

this issue here. '

a eaaemnnnennenmneneteeemeneeenennemeneenmennnnnnen tenement

clause and the Civil Rights Act of 1964 since, by re-

quiring a return to the former system of admissions,

it would give preference to white applicants, and al-

most totally exelude nonwhite applicants, solely on

the basis of entry criteria which are racially discrimi-

natory in effect and which are not justified by any

substantial state interest. Second, public agencies such

as the Law School have discretion to adopt programs

designed to neutralize the effects of agency policies

which have an adverse impact on racial minorities.

Third, the racial classification used by the Law School

should not evoke the presumption of unconstitution-

ality normally applied to racial classifications bur-

dening racial minorities; since the Law School has

shown that the minority admissions program is rea-

sonably related to a legitimate state purpose it should

be upheld. Fourth, even if the most rigorous stand-

ard of equal protection review were used to test this

program, it would be satisfied because the program

is justified by several overriding state interests.

are not justified by any substantial state interest.

The preceding section of this brief established, first,

that inflexible application of the Law School’s me-

chanical entry criteria would almost totally exclude

minorities from a legal education, and from the legal

profession, and second, that these mechanical criteria

are not validly related either to performance within

law school or the legal profession. Given these facts,

it is evident that petitioner has mischaracterized the

ease when he refers to it as a “minority preference

case.” To the contrary, it is precisely petitioner who

seeks to obtain an illegal preference when he asks this

Court to order the Law School to give him priority

over nonwhite applicants solely on the basis of invalid

and racially exclusionary entry criteria. The relief

that petitioner requests must be dcnied since it would

contravene (1) the equal protection clause as tradi-

tionally understood, (2) the equal protection clause

as interpreted in light of Griggs v. Duke Power Co.,

401 U.S. 424 (1971) and (3) Title VI of the Civil

Rights Act of 1964, 42 U.S.C. §2000d, which this

Court recently relied upon in striking down educa-

tional policies which had a discriminatory effect on

minority groups. Lau v. Nichols, 42 USLW 4165

(Jan. 21, 1974).

1. The equal protection clause prohibits a public law school from using

entry criteria which disproportionately disqualify nonwhites in the

absence of a substantial or compelling justification.

Stated most charitably, this case involves the use

of facially neutral entry criteria which almost totally

exclude racial minorities. Numerous decisions of this

Court and lower courts hold that such exclusion vio-

lates the equal protection clause unless it is specifi-

cally shown to be justified by some substantial state

interest. See, e.g., Turner v. Fouche, 396 U.S. 346

(1970); Carter v. Jury Commission, 396 U.S. 220

(1970); Louisiana v. United States, 380 U.S. 145

(1965) ; Griffin v. School Board, 377 U.S. 218 (1964) ;

Hill v. Texas, 316 U.S. 400 (1942); Armstead v.

Starkville Municipal Separate School Dist., 461

F.2d 276 (5th Cir. 1972); Carmichael v. Craven, 457

F.2d 582 (9th Cir. 1971), cert. denied, 409 U.S. 929

(1972); Labat v. Bennett, 365 F.2d 698 (5th Cir.

1966), cert. denied, 386 U.S. 991 (1967).*

Whenever a state classification has a substantially

adverse impact on minority races, at a minimum, the

state has the obligation to justify its action.

[Tjhe Board’s examinations have a significant

and substantial impact on black and Puerto Rican

applicants. That harsh racial impact, even if un-

intended, amounts to an invidious de facto classi-

fication that cannot be ignored or answered with

a shrug. At the very least, the Constitution

requires that state action spawning such a classi-

fication “be justified by legitimate state considera-

tions.” (citations omitted.) Chance v. Board of

Examiners, 458 F.2d 1157, 1175-76 (2d Cir. 1972).

Sec, e.g., Otero v. New York Housing Authority, 484

F.2d 1122 (2d Cir. 1973) ; Hawkins v. Town of Shaw,

437 F.2d 1286 (5th Cir. 1971); Norwalk CORE v.

Norwalk Redevelopment Agency, 395 F.2d 920 (2d

Cir. 1968) ; Larry P. v. Riles, 343 F. Supp. 1306 (N.D.

Cal. 1972); Hobson v. Hanson, 269 F. Supp. 401

(D.D.C. 1967), cert. dismissed, 393 U.S. 801 (1969).

This Court has explicitly stated that a finding of illegal racial

discrimination does not need to be based upon a prior finding of

intent or purpose to discriminate. See, ¢.g., Palmer v. Thompson,

403 U.S. 217, 225 (1971); Griffin v. School Board, supra; NAACP

v. Button, 371 U.S. 415 (1963).

There has been no adequate showing of a legitimate

state interest justifying the entry criteria used in

this case.* On the contrary, as demonstrated in sec-

tion I. B supra of this brief, the college degree, the

college GPA, and LSAT scores do not validly predict

success in the legal profession or even, to any sub-

stantial degree, suecess in law school. These criteria

are only useful in that they have a mild correlation

to first year law school grades, Their use for this

extremely limited purpose cannot possibly justify the

exclusion of black, Chicanos and Native Americans

from legal education and entry into the legal profes-

sion.

Furthermore, there are at least three reasons why

this Court should subject the Law School’s use of

discriminatory entry criteria to particularly close

scrutiny and deny the relief requested in the absence of

a showing of an overriding need to continue their use.

First, respondents were aware of the impact of their

admissions criteria. At least some of the respondents

*®We believe that in this case the petitioner should have the

burden of proving the substantial state interest supporting the use

of the discriminatory entry criteria. In the norma! case of alleged

racial discrimination, the plaintiff seeks to enjoin the use of dis-

criminatory criteria, and the burden is upon the state to justify

its continued use of that criteria. However, in this case, petitioner

seeks to compel the Law School to use discriminatory criteria for

purposes of admitting him instead of nonwhite applicants. Since

the Law School opposes the exclusive use of those criteria, it would

make no sense to require the Law School to prove that the criteria

are supported by a substantial state interest.

Moreover, in this case, petitioner asserts that he is more qualified

than nonwhite applicants that have been admitted to the Law

School. Since petitioner is seeking to prove that he is more quali-

fed primarily on the basis of the entry criteria, he should have the

bu of proving that such criteria are valid measures of qualifi-

cation.

had first hand knowledge of the relative GPA’s,

LSAT scores and PFYA’s of the white and nonwhite

law school applicants. As professional academicians

and specialists in the screening of applicants, respond-

ents certainly know that college grade point averages

and scores on difficult symbolic-analytie written tests

are criteria which have a severely adverse effect on

nonwhite applicants.’ Respondents must be presumed

to have intended the obvious known results of their

behavior. Moreover, respondents could have discon-

tinued the use of these discriminatory criteria if they

wished. Thus, this is not a case involving wholly in-

nocent use of ciuosifications having a discriminatory

effect. The fact that respondents adopted an affirma-

tive action program to neutralize the discriminatory

effects of their entry system clearly shows that they

were indeed aware that discrimination was present in

the system’* Had respondents failed to do so, minor-

17The discriminatory effect of written tests of nearly all kinds

has been common knowledge within the academic community for

many years.

18Once respondents became aware that « Mtry system was

grossly discriminatory, they had only two yptions. First, they

could have discontinued the use of the discriminatory criteria. Sec-

ond, they could have adopted a minority admission program de-

signed to neutralize the discriminatory effects of the criteria (as

they, in fact, did in this case). If this Court now prohibits re-

spondents from following the second course of action, the result

will be that respondents—and other law schools throughout the

nation—will be forced to discontinue the use of educational re-

quirements, the GPA and the LSAT as screening i

Otherwise, the law schools would be subject to suit for using ex-

clusionary and invalid criteria. This would mean that law schools

would have to resort to wholly subjective entry criteria. Until

rational alternatives are available, the sensible and legally permis-

sible approach is to allow the law schools to continue using the

suspect criteria and to implement minority admission programs to

neutralize their discriminatory effect.

ity applicants could plausibly have challenged their

admissions program as purposefully discriminatory.

Second, this Court has repeatedly recognized that

when a classification results in a virtually complete

exclusion of minorities, close scrutiny is appropriate

and the state must come forward with some substan-

tial justification. Hernandez v. Texas, 347 U.S. 475

(1954). In this case, virtually all blacks, Chicanos

and Native Americans would have been excluded and

an essentially segregated Law School would have re-

sulted if the discriminatory effect of the PFYA had

not been neutralized by the minority admissions pro-

gram.

Third, the right to nondiscriminatory entry into the

legal profession is a preferred right which this Court

is obliged to protect with extreme care. Cf. Turner v.

Fouche, 396 U.S. 346 (1970); Fortson v. Dorsey, 379

U.S. 433, 439 (1965) ; Gomillion v. Lightfoot, 364 U.S.

339 (1960); NAACP v. Button, 371 U.S. 415 (1963).

The fundamental concept which underlies the doctrine

of preferred position is that the courts have a special

obligation to prevent restrictions which interfere with

the free operation of the political process since, in a

democracy, it is the political process to which the

people must look for an adjustment of their griev-

ances. The preferred position doctrine applies, if any-

where, precisely in cases involving restrictions on the

access of minority racial groups to the political

process. United States v. Carolene Products, 304 U.S.

144, 152 n.4 (1938).

The relief requested by petitioner would drastically

restrict the access of minority groups to the legal

profession, which has historically maintained a domi-

nant position within the political process. Ever since

the Constitutional Convention, lawyers have domi-

nated the national legislature. For example, at the

present time, nearly seventy percent of the members

of the United States Senate and over fifty percent of

the members of the House of Representatives are

lawyers. “By virtue of their professional aptitudes

and natural interests, lawyers have been leaders in

government throughout the history of our country.”

In re Griffiths, 413 U.S. 717, 721 (1973).

Furthermore, the rights minority races achieve

through the political process will only be enforced if

there are attorneys willing to do so. This Court has

ruled that litigation brought to protect the civil rights

of minority groups is a mode of political expression

which deserves special protection because groups that

are unable to achieve their objectives through the

ballot frequently must turn to the courts. NAACP v.

Button, 371 U.S. 415, 429-30 (1973). Since litigation

may be the most practicable avenue open to a minor-

ity person to petition for redress of grievances, the

interest racial minorities have in equal opportunity

to enter law schools, and thus the legal profession,

should also deserve special judicial attention. Cf.

United Transportation Union v. State Bar, 401 U.S.

576, 585-86 (1971); United Mine Workers v. Illinois

Bar Association, 389 U.S. 217 (1967).

Spread throughout the record in this case and

throughout the legal literature is overwhelming evi-

dence that nonwhite races (particularly blacks) have

been excluded from the legal profession in drastic dis-

proportion to their numbers in the population. Thus,

although roughly eleven percent of the nation’s citi-

zens are black, approximately one percent of the

nation’s lawyers are black. [See discussion in §I1.(D),

infra.}| The exclusion of nonwhites from the

legal profession has contributed to the alienation of

minority groups from the political process. So serious

has the adverse effect been that the nation was forced

to suffer through a series of divisive race riots in the

1960’s before the scope of the problem could even be

perceived by the dominant political forces.

Petitioner asks this Court to rule that law schools

cannot undertake programs designed to rectify the

discriminatory effects of the entry criteria that they

have used and continue to use. If this request were

granted, it would sharply curtail the access of the

nonwhite races to the legal profession. For this rea-

son, such a request must be subjected to especially

close scrutiny in order to ensure that the preferred

right of nonwhite races to nondiscriminatory entry

- into the legal profession is not violated.

2. The equal protection clause, interpreted in light of Griggs v. Duke

Power Co., prohibits the creation of racially discriminatory bar-

riers to employment such as those involved in this case in the

absence of a showing that such barriers are job-related and justi-

fied by business necessity.

(a) The rule of Griggs v. Duke Power Co.: racially discriminatory

barriers to employment are illegal unless they are proved to be

job-related.

In 1971, this Court handed down one of the most

important decisions in the history of equal employ-

ment opportunity law, Griggs v. Duke Power Co., 401

U.S. 424 (1971). This case established the funda-

mental rule that “barriers to employment” which are

racially discriminatory in their effect are prohibited

by Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, unless they are “shown to bear a

demonstrable relationship to successful performance

of the jobs for which ... [they were] used.” Jd. at

431. As the Court stated, “If an employment practice

which operates to exclude Negroes cannot be shown

to be related to job performance, the practice is pro-

hibited.” Id.

Chief Justice Burger’s opinion indicates that the

Court’s holding was based on two basic perceptions

regarding the use of employment criteria. First, even

where they are “fair in form,” such criteria are fre-

quently “discriminatory in operation” and act as

“built-in head-winds” which prevent minority persons

from obtaining equal employment opportunity. Sec-

ond, many criteria which employers use to screen

applicants for employment are not job related: they

simply do not predict the applicant’s ability to per-

form the job in question. In such cases, the use of

the discriminatory criteria is not justified by any

“business necessity.”

Normally, in applying the rule of Griggs v. Duke

Power Co., the court must ask only two questions.

First, are the employment criteria racially discrimi-

natory in effect? Section I(A) supra of this brief

shows that in this case, the answer to this question

is yes, Second, are the employment criteria job-

related and justified by business necessity? Section

I(B) supra of this brief shows that in this case, the

criteria are wholly invalid and unjustified. Here,

however, there are two additional questions which

must be asked. First, does the Griggs test, which was

originally based upon Title VII of the Civil Rights

Act of 1964, also apply by virtue of the equal pro-

tection clause to the creation of discriminatory em-

ployment barriers by state agencies? Second, is

admission te law school a barrier to employment with-

in the meaning of the Griggs test?

(b) The equal protection clause prohibits state agencies from en-

gaging in conduct which, if undertaken by private organizations,

would constitute employment discrimination in violation of

Griggs v. Duke Power Co.

In its initial form, Title VII of the Civil Rights

Act of 1964 did not apply to state and local govern-

mental agencies. Therefore, not long after Title VII

became effective, the question arose whether legal

standards developed in Title VII cases against pri-

vate employers also applied to employment discrimi-

nation cases against state agencies based upon the

RE ces acarll eae

equal protection clause and the Civil Rights Act of

1866, 42 U.S.C. 1981. The lower courts which have

considered this issue have concluded that Title VII

standards also apply to state agencies through the

equal protection clause. Thus, for example, the Sec-

ond Circuit, in affirming an injunction prohibiting the

use of a written examination for determining promo-

tions within the New York City School system, stated,

[O]nce discrimination has been found it would be

anomalous at best if a public employer could

stand back and require racial minorities to prove

that its employment tests were inadequate at a

time when this nation is demanding that private

employers in the same situation come forward

and affirmatively demonstrate the validity of such

tests. See Title VIT of the Civil Rights Act of

1964, 42 U.S.C. § 2000e; Griggs v. Duke Power

Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed. 2d

158 (1971). The anomoly would only be empha-

sized by the recent passage of the Equal Employ-

ment Opportunity Act of 1972, which broadened

Title VII to include state and city public em-

ployers. Chance v. Bd. of Examiners, 458 F.2d

1167, 1176-77 (2d Cir. 1972).

For similar holdings, see, e.g., Baker v. Columbus

Municipal Separate School Dist., 462 F.2d 1112, 1114

(5th Cir. 1972); Armstead v. Starkville Municipal

Separate School Dist., 461 F.2d 276, 279 (5th Cir.

1972) ; Castro v. Beecher, 459 F.2d 725, 732-33 (1st

Cir. 1972); Carter v. Gallagher, 452 F.2d 327 (8th

Cir.), cert. denied, 406 U.S. 950 (1972). These cases

reflect the salutary principle that public agencies

should at least live up to the standards imposed on

private employers.

The proposition that ,ules developed under Title

VII apply in cases brought under the equal protection

clause is fully supported by a functional analysis of

the operative provisions of the two laws. Although

Title VII is a lengthy statute, its operative provision

reduces to a declaration that ‘‘it shall be an unlawful

employment practice for an employer .. . to discrimi-

nate against any individual with respect to his . . .

employment. . . .” 42 U.S.C. § 2000e. Similarly, the

equal protection clause prohibits the denial of ‘equal

protection of the laws”, a term which has been con-

strued to mean “racial discrimination” generally.

Thus, conduct which violates the general prohibition

of Title VII would, if carried out by a state agency,

violate the equal protection clause:

Although differing from the present case in the

respects that it was a decision under Title VII

of the Civil Rights Act of 1964 and that it con-

cerned intra-company assignment of employees

by a private employer, Griggs construed broad

statutory language proscribing classification of

employees: ‘‘in any way which would deprive or

tend to deprive any individual of employment

opportunities or otherwise adversely affect his

status as an employee, because of such individu-

al’s race . . . or national origin.” 42 U.S.C.

§ 2000e-2(a)(2). With substitution of *‘appli-

cants” for “‘employees” the quoted statutory lan-

guage not unfairly describes what we hold to be

the constitutional constraints on a public em-

ployer. We cannot conceive that the words of the

——————————————————————

Fourteenth Amendment, as it has been applied

in racial cases, demand anything less. Castro v.

Beecher, 459 F.2d 725, 733 (1st Cir. 1972).

Thus, like Title VII, the equal protection clause re-

quires the elimination of discriminatory devices that

foster racial stratification to the disadvantage of

minority citizens. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), citing with approval, Castro v.

Beecher, supra; Chance v. Board of Examiners, supra.

function as barriers to employment in the legal profession, the

Griggs rule should be used to test their legality.

The central fact that. must be remembered is that

the Law School’s discriminatory entry criteria would

have prevented nonwhites from entering the legal pro-

fession. Thus, even though the law school is not tech-

nically an ‘‘employer” within the meaning of Title

VII, the case does involve discriminatory ‘‘barriers

to employment” within the meaning of Griggs v.

Duke Power Co. In fact, given the “preferred posi-

tion” of the right of insular racial minorities to non-

discriminatory access to the legal profession, we

would submit that the Griggs test must be strictly

applied to this case, and the racially discriminatory

entry criteria rejected, unless they are a necessary

rather than a mere rational method to select law

school applicants.

To treat this case other than as an employment

case would be to ignore the realities involved. The

basic function of law school is to prepare persons for

employment opportunities as discrimination by spe-

cific employers. See, ¢.g., United States v. Tronwork-

ers Local 86, 443 F.2d 544 (9th Cir.), cert. denied,

404 U.S. 984 (1971); Dobbins v. Local 212, IBEW,

292 F.Supp. 413 (8.D. Ohio 1968). Sce generally

Yeager, Litigation Under Title VII of The Civil

Rights Act of 1964, The Construction Industry and

The Problem of The “Unqualified” Minority Worker,

59 Geo.L.J. 1265, 1272-75 (1971). In other cases, the

courts have held that trade associations are employ-

ers for the purposes of Title VII because their in-

fluence over and responsibility for employment prac-

tices applying to the industry as a whole is greater

than any single employer. See, ¢.g., United States v.

Local 638, Enterprise Ass’n., 360 F. Supp. 979, 995

(S.D.N.Y. 1973) ; Williams v. New Orleans Steamship

Ass’n., 341 F. Supp. 613 (ED. La. 1972). The abso-

lute control law schools maintain over entry into the

legal profession makes the analogy to these eases com-

pelling.

Since there is simply no reason to treat this case

differently from standard employment cases, the

Griggs rule should control here. Applying that rule,

it is clear that the Law School’s discriminatory entry

criteria cannot be justified even under the normal

“*job-relation” standard, let alone the stricter stand-

ard applicable here: There is no showing of job-

relatedness in the trial record, and as the discussion

in I(B) supra demonstrates, the entry criteria are

clearly not job related. Therefore, petitioner is re-

questing this Court to enter an order requiring re-

spondents to take action which would directly violate

the equal protection clause as interpreted in light

of the Griggs case. Such a request must be rejected.

5. Title VI of the Civil Rights Act of 1964 prohibits the use of invalid

law school admissions criteria which are discriminatory in effect.

Petitioners have correctly recognized that “[t]}he

University of Washington is heavily funded by fed-

eral assistance of various kinds,” and is therefore

subject to the provisions of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. §2000d. [Petitioner's

Opening Brief, at 27.] The conclusion to be drawn

from this is not, however, that Petitioner was sub-

jected to racial discrimination prohibited by the

statute, To the contrary, the statute required the Law

School to take affirmative action to eliminate the dis-

criminatory effects of its previous admissions policies.

Section 601 of the Act bans discrimination on the

“ground of race, color, or national origin” in any

program or activity receiving federal financial as-

sistance.” 42 U.S.C. 62000d. Pursuant to the authority

granted in the statute, the Department of Health,

Education and Welfare promulgated non-discrimina-

tion regulations, which are set forth in 45 CFR $680

et seq. Acceptance of federal funds by the University

of Washington bound the University to comply with

the Act and HEW regulations. These regulations

state that a recipient “may not .. . utilize criteria or

methods of administration which have the effect of

subjecting individuals to discrimination” or have “the

effect of defeating or substantially impairing accom-

plishment of the objectives of the program as respect

individuals of a particular race, color, or national

origin.” 45 CFR 80.3(b) (2).*

As this Court recently acknowledged, the purpose

of Title VI of the Civil Rights Act of 1964 was to

insure that federal funds would be spent in such a

manner as to aid in the elimination of the pervasive

effects of racial discrimination. The Act prohibits not

only deliberate discrimination, but also actions which

have the effect of discriminating against persons of

a particular race, color or national origin. Lau v.

Nichols, 42 USLW 4165, 4167 (Jan. 21, 1974).

The use of admissions criteria which are discrimina-

tory in effect is specifically prohibited with respect

1945 CFR 80.2(b) (2)

(2) A recipient, in the t of services, finan-

él a de abn ol hich w idee

eit

‘

2fiie

)

to institutions of higher education. 45 CFR §§80.3

(b) (2), 804(d), 80.5(¢c).° The Law School used the

PFYA as the primary criterion in the admission of

students, and, as we have shown above, inflexible ap-

plieation of this standard would be severely discrimi-

natory in effect. Since inflexible application of the

Law School’s ordinary admissions standards would

have violated Title VI as interpreted by these regu-

lations, the Law School was required to take affirma-

tive action to neutralize the discriminatory effect of

its admissions criteria. Recent federal amendments to

the regulations confirm the Law School’s obligation

under Title VI to take neutralizing action. They

state that when a program is administered in such a

way as to discriminate against minorities, affirmative

steps must be taken to overcome the effects of prior

More specifically, § 80.3 of the new regulations

provides at (b)(1)(6)(i) that

2045 CFR §804(d):

) Amurances from

h education (including amistance for construction, for

f ean ), the ante Sapte ra een

shall extend to admiasion ’ y,

In administering a program regarding which

the recipient has previously discriminated against

persons on the ground of race, color, or national

origin, the recipient must take affirmative action

to overcome the effects of prior discrimination.”

38 Fed. Reg. 17979 (July 5, 1973)

The explanatory statements accompanying the

amendments indicate that this section was added to

clarify a recipient’s obligations under the Act. Section

80.3(b)(6) was added to require funded programs

to take affirmative steps to overcome the effects of

prior discrimination and to indicate that recipients

are not prohibited from taking affirmative action “to

overcome the effects of conditions which resulted in

limited program participation by persons of a par-

ticular race, color, or national origin,” 38 Fed. Reg.

17978 (July 5, 1973). The illustrative applications

also added to the regulations make it clear that af-

firmative action is clearly intended to mean that spe-

cial consideration will be given to minority applicants.

For instance, amended section 80.5(i) provides that it

may be necessary for a recipient to make “selections

which will insure that groups previously subjected to

discrimination are adequately served.” 38 Fed. Reg.

at 17980-81. Section 80.5(j) provides that even if a

recipient has never used discriminatory policies, it

21The second section of 80.3(b) (6) states that a recipient of fed-

eral funds “may take affirmative action to overcome the effects of

conditions which resulted in limiting participation by persons of a

particular race, color, or national origin . . .” even if it has not

engaged in prior discrimination.

“may properly give special consideration to race,

color, or national origin to make the benefits of its

program more widely available to such groups, not

then being adequately served.” 38 Fed. Reg. at 17981.

Since Title VI, as implemented by federal regula-

tions, required the University to take affirmative

action to remedy the discriminatory effects of its

admissions policy, it is irrelevant that there was no

judicial finding that its prior admissions policies were

illegally discriminatory. The regulations specify that

the Act bars unjustified exclusion of minorities from

institutions of higher education even when the dis-

criminatory impact is unintended.

This Court recently held that discrimination in

effect burdening national origin minority children

violates Title VI. Law v. Nichols, 42 USLW at 4167.

Lau dealt with a policy, nondiscriminatory on its face,

that discriminated in practice against Asian children.

Similarly, in the instant case, the Law School’s for-

mer admissions criteria, while purporting to treat all

applicants alike, seriously discriminated against mi-

nority applicants. Just as this Court required the

school system to take neutralizing action in Lau to

overcome the language barrier, so here the neutral-

izing action taken by the Law School—the special

admissions program—must be upheld. The regula-

tions implementing Title VI contain explicit direc-

tives defining affirmative steps recipients should vol-

untarily undertake to prevent illegal discrimination

and rectify the effects of past discrimination. The

Law School has taken such steps. This Court should

thus defer to HEW’s construction of the statute on

this point,”* and uphold the Law School’s policies.

In this case, it would be particularly anomalous to

hold that affirmative action taken by the University

of Washington Law School is unjustified. The Law

School’s admissions process is governed directly by

Title VI and indirectly by the rule in Griggs v. Duke

Power Co. Both Title VI and Title VII as construed

by the courts and administrative agencies include

strong prohibitions on unexplained de facto discrimi-

nations against minority groups. In Griggs and Lau,

this Court upheld this construction of these two stat-

utes. Both statutes also include potent affirmative ac-

tion requirements which can be imposed by a court or

administrative agency in default of voluntary efforts

at affirmative action. These provisions have also been

upheld. [See cases cited in section II(B) infra.] Since

the fundamental premise of both statutes is the en-

couragement of voluntary compliance, this Court

should uphold the Law School’s minority admissions

policy as a valid attempt to comply with its legal

obligations,

22This Court has consistently given great deference to the inter-

Pee ee ee ie ae an ae its

ration. Griggs v. Duke Power Co., 401 U.S. 424, 433-34

(1971); Udall v. Talman, 380 US. 1, 16 (1965). The validity of

an administrative regulation will be upheld if it is reasonably re-

lated to the purpose of the enabling legislation. Here, as in Lau

v. Nichols, the applicable enabling legislation is section 601 of the

Civil Rights Act of 1964. It should be noted that these interpreta-

tive regulations are uniform rules which have been adopted by

every federal agency which extends federal financial assistance.

B. The Law School’s use of the minority admissions program to

remedy the discriminatory effects of its entry criteria was

@ constitutionally permissible exercise of its discretion.

1. Racial classifications can be used to remedy past and present racial

discrimination.

In repeatedly characterizing this case as a minority

preference case, petiiioner totally overlooks the fact

that the so-called ‘‘special privilege” involved here is

nothing more than a neutralizing of the racially dis-

criminatory effect of entry criteria which in the past

caused an almost complete segregation of the Law

School, and which would still do so without the mi-

nority admissions program. There are literally hun-

dreds of cases which support the proposition that

racial classifications can be used in order to provide

a remedy for prior and continuing discrimination

burdening minority groups.2* Since this case involves

the use of a racial classification by a public agency,

we will limit our citations to cases in which public

agencies were ordered to use racial classifications to

remedy the effects of their past and present discrimi-

nation. See, e.g., Carter v. Gallagher, 452 F.2d 327

(8th Cir.) (en banc), cert. denied, 406:°U.8. 950

(1972); Castro v. Beecher, 459 F.2d 727 (1st Cir.

1972); Pennsylvania v. O’Netll, 348 F. Supp. 1084

(E.D. Pa. 1972), modified en banc, 473 F.2d 1029 (3d

Cir. 1973) ; Bridgeport Guardians v. Bridgeport Civil

Service Commission, 482 F.2d 1333 (2d Cir. 1973);

Vulcan Society v. Civil Service Commission, 6 E.P.D.

23The courts have, in fact, held that racial classifications may be

mandatory if necessary to prevent racial discrimination. See, ¢.g.,

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920

(2d Cir. 1968).

1 8974 (2d Cir. 1973); Coffey v. Braddy, No. 71-44-

Civ.-J (M.D. Fla., August 12, 1971); NAACP v.

Allen, 340 F. Supp. 703 (M.D. Ala. 1972); Hogue v.

Bach, No. C-3693 (D. Colo. 1972); Shield Club v.

City of Cleveland, 5 E.P.D. 1 8406 (N.D. Ohio 1972) ;

Pennsylvania v. Sebastian, No. 72-987 (W.D. Pa.,

Nov. 20, 1972), aff’d by order (3d Cir., June 7, 1973) ;

Davis v. County of Los Angeles, 73-63-WPG (C.D.

Cal, July 20, 1973) ; Erie Human Relations Commis-

sion v. Tullio, 360 F. Supp. 628 (W.D. Pa. 1973) ;

Arnold v. Ballard, 6 E.P.D. 1 8675 (N.D. Ohio 1973) ;

NAACP v, Civil Service Commission of Sam Fran-

cisco, 6 E.P.D. 1 8956 (N.D. Cal. 1973); Western

Addition Community Organization v. Altoto, 6 E.P.D.

1 8959 (N.D. Cal. 1973).

The implicit rationale of these cases is that racial

classifications which are used to rectify racial dis-

crimination and achieve equality are obviously not

denials of ‘the equal protection of the laws. In each

of these cases the court imposed a hiring ratio es-

tablishing minimum percentages for the employment

of minority applicants. Every case acknowledged that

such a remedy would impose short-term burdens on

some competing whites, and that applicants from

specific minority groups would be given special con-

sideration. Nevertheless, this special consideration

given to minority aspirants did not transgress the

rights of competing whites to equal protection of the

laws.

2. Public agencies may take reasonable actions to recitfy their own

discriminatory practices without s judicial finding of illegal dis-

crimination.

Although in most instances the remedies imposed

in the above cited cases were ordered after a judicial

finding of illegal discrimination, the law does not

restrict the use of remedial racial classifications to

situations where such findings have been made. In

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) this Court stated that, although the

judicial power to remedy the effects of discrimination

rests on a finding of statutory or constitutional vio-

lation, other government agencies have the authority

to take affirmative action to remedy the effects of

state policies that are discriminatory in fact, even

in the absence of a:specific finding of prior racial

discrimination. As the Court put it:

School authorities are traditionally charged

with broad power to formulate and implement

education policy and might well conclude for

example, that in order to prepare students to live

in a pluralistic society each school should have a

prescribed ratio of Negro to white students re-

flecting the proportion for the district as a whole.

To do this as an educational policy is within

the broad discretionary powers of school authori-

ties; ... 402 U.S. at 16.

Consistent with Swann, the court in Associated

General Contractors of Massachusetts, Inc. v. ‘Alt-

shuler, 6 E.P.D, 18993 (1st Cir., November 30, 1973)

recently upheld a voluntarily adopted affirmative

action program, stating that:

[P]ublic authorities have a broader discretionary

power to remedy past discrimination than that

of the judicial branch. Jd. at 13.

The statements by the courts in Swann and Altshuler

confirm the fundamental legal principle that public

agencies have constitutional authority to enact affirma-

tive policies that will ensure equal treatment, even

though there may be no prior finding of illegal dis-

crimination. Cf. Katzenbach v. Morgan, 384 U.S. 641,

653 (1966). See also, Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968).

Further support for this fundamental principle can

be found in two other lines of cases. The first is a

series of cases upholding affirmative action programs

adopted by federal and state agencies. The second is

the enormous body of Title VII and equal protec-

tion clause cases in which consent agreements have

been approved by district courts in the absence of

specific findings concerning discrimination.

In a series of cases the courts have upheld affir-

mative action plans that set hiring goals or ratios

for minority tradesmen in state or federally financed

construction projects. Although these plans require

that contractors give special consideration to minority

groups when making hiring decisions, they have been

consistently upheld against challenges on equal pro-

tection grounds. None of the plans was predicated

on a specific finding of past illegal discrimination by

contractors.** Each plan was designed to rectify the

24While each of these plans was adopted after an administrative

_ finding that minority tradesmen were significantly underrepresented

on construction projects, such a finding was no more than what was

racial imbalance then existing on construction projects,

and the reviewing courts recognized that this interest

was sufficiently important to justify the “color con-

scious” solution. For instance, in Associated General

Contractors of Massachusetts, Inc. v. Altshuler, 6

E.P.D. 18993 (1st Cir. Noy. 30, 1973), the court said:

It is by now well understood .. . that our

society cannot be completely colorblind in the

short term if we are to have a colorblind society

in the long term. After centuries of viewing

through colored lenses, eyes do not quickly adjust

when the lenses are removed. Discrimination has

a way of perpetuating itself, albeit unintention-

ally, because the resulting inequities make new

opportunities less accessible. Id. at 11.

See, Contractor’s Association of Eastern Pennsylvania

v. Secretary of Labor, 442 F.2d 159, 173 (3d Cir.)

cert. denied, 404 U.S. 854 (1971); Southern Illinois

Builders Association v. Ogilvie, 327 F. Supp. 1154

(S.D. Ill. 1971) aff’d 471 F.2d 680, 684 (7th Cir.

1972); Joyce v. McCrame, 320 F. Supp. 1284 (D.

N.J. 1970); Weimer v. Cuyohoga Community College

District, 19 Ohio 2d 35, 249 N.E.2d 907, 908 (1969),

cert. dented, 396 U.S. 1004 (1970). Cf. Brooks v. Beto,

366 F.2d 1 (5th Cir. 1966); Porcelli v. Titus, 431

F.2d 1254 (3d Cir. 1970).

Each of these cases is materially indistinguishable

from the present action. The Law School has recog-

nized the crucial need to alleviate the underrepresen-

patently obvious to the University of Washington Law School, ice.,

the almost total exclusion of racial minorities from its own student

body as well as from the legal profession.

tation of minority lawyers in the legal profession and

to neutralize the exclusionary effects of its traditional

admissions criteria. It responded appropriately. The

Law School modified its admissions policies in an

attempt to remedy these evils.

A further indication that public agencies may

rectify their discriminatory practices without a ju-

dicial finding of illegal discrimination can be found

in the judicial approval of consent agreements which

require an employer to use racial hiring ratios to

eliminate the effects of discrimination. See, e.g., Penn.

1973) ; Emeryville Citizens for Better Government v.

Neary, C-71-940 CBR (N.D. Cal., Oct. 26, 1973);

NAACP v. Imperial County Irrigation District, No.

60-302-GT (S8.D. Cal. 1972) ; Martinez v. Grand Rapids

Cwil Service Board, No. G-178-72, 6 Clr. Hs. Rev.

685 (W.D. Mich., Jan. 22, 1973); United States v.

Operating Engineers, Local 3, C-71-1277 RFP (N.D.

Cal. 1973).

In each of these cases, most of which involved

public agencies, the parties consented to hiring ratios

without any judicial finding that the employer’s hiring

policies were in fact illegally discriminatory. Evi-

dence that the challenged hiring procedures seriously

disadvantaged minority applicants was deemed suf-

ficient to justify judicial approval. Likewise, in the

present action, the severe disadvantage caused to

minority applicants by the Law School’s entry criteria

should justify its adoption of a program designed to

rectify that disadvantage.

rectify their discriminatory practices would be a decision to per-

Petuate such practices,

The importance of preserving and encouraging the

authority of public agencies to remedy present and

past discrimination cannot be overemphasized. For

decades, the Executive Branch has attempted to

eliminate racial discrimination in employment through

affirmative action requirements in its federal con-

tracts. See, e.g., Executive Order 11246. More recently,

affirmative action programs ha. been adopted by

federal, state, and local agencies throughout the

country to remedy the effect of racial discrimination

in employment, admissions to schools, housing, the

distribution of teachers and students within schools,

and many other areas, The discretion of these agencies

to adopt and implement such programs must be

encouraged if equal treatment for racial minorities

in our society is ever to become a reality. Restriction

of this discretion would not only slow progress in

civil rights to a snail’s pace, but would in fact result

in the perpetuation of past discrimination.

A further effect of restricting the discretion of

publie agencies would be to impose an enormous

burden on the already overburdened judicial system.

It would result in the bringing of a large number of

lawsuits which are wholly unnecessary since many

agencies are willing to rectify their own discrimina-

tory practices without a court order. Moreover, those

agencies which are willing to take affirmative action

to rectify the effects of their diseriminatory practices

are better equipped than the courts to determine the

specific causes of the discrimination and the best

means to compensate for it. This is the reason courts

ordinarily grant substantial deference to the judgment

of the executive and legislative branches. We suggest

that such deference is fully appropriate here.

The Constitution mandates equal protection, not

color blindness. Measures, such as those adopted by

the Law School, which seek to promote, rather than

to deny equal treatment, should not be deemed il-

legally discriminatory. Fruend, Constitutional Dilem-

mas, 4 B.U.L. Rev. 13, 20 (1965). As shown above

§§B(2),(3) supra, Congress, in both Title VI and Title

VII of the Civil Rights Act of 1964, has condemned

unexplained and unjustified discriminations burden-

ing racial minorities. These statutes also express a

strong Congressional commitment to the principle of

voluntary compliance and the necessity for affirma-

tive action aimed at eliminating the effects of past

and present discrimination. This Court has given ex-

traordinary deference to Congress’ judgment about

the need to enact such measures in order to secure

equal protection. Cf. Katzenbach v. Morgan, 384 US.

641 (1966). See also United States v. Guest, 383 US.

745 (1966); Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964). Thus, Congress retains broad

authority to enact laws designed to correct conditions

perceived to involve a denial of equality or other

fourteenth amendment rights; the Court defers to the

presumed need for a remedy, without requiring a

showing of actual discrimination. By the same token,

state agencies should retain authority to preseribe

remedies to implement the guarantees of the four-

In the foregoing portions of this brief, we have

demonstrated (1) that it is wholly incorrect to

granting of a preference since it is used solely to

remedy the adverse impact of the Law School's entry

criteria on nonwhites. In this section of the brief we

will assume solely for purposes of argunieot that the

Law School's minority admissions program does grant

a “preference” to nonwhites and therefore involves

a discrimination burdening some whites, and w¢ will

show that, even if this were so, it would be fully

constitutional. The fundamental proposition oft which

this argument rests is that the racial classification in

this case is not the type of suspect racial classification

to which the presumption of unconstitutionality ap-

plies. Consequently, the Court should not require the

Law School to demonstrate that the admissions

program is necessary to achieve a compelling state

interest, Rather, a less strict standard of review is

appropriate, Sinee the minority admissions program

is a rational means to achieve a legitimate state

interest, it is wholly legal.

This Court has traditionally applied a strong pre-

sumption of unconstitutionality to classifications that

are challenged as discriminating against, excluding,

stigmatizing or otherwise burdening certain groups

that need special judicial protection. See, ¢.g., Mec-

Laughlin v. Florida, 379 U.S. 184, 192 (1964); Boll-

ing v. Sharpe, 2%AT US. 497, 499 (1954). This

presumption is founded upon the indisputable prem-

ise that racial classifications have been used in the

past mainly to the detriment of minority groups

that have been victimized by state sanctioned dis-

crimination and relegated to a position of political

impotence. Were it not for the extraordinary pro-

tection afforded by the judiciary through the pre-

sumption of unconstitutionality ordinarily applied to

racial classifications, these groups would have no

possible way to redress their legitimate grievances.

When, however, the complaint is that whites are

burdened by government action which makes racial

distinctions in order to ameliorate burdens suffered

by members of a minority race, the traditional

rationale for stringent review does not apply. For

the reasons discussed below, the presumption of un-

constitutionality is unwarranted in this case.

1. ‘The minority admissions program does not burden s minority group

traditionally subjected to private and public discrimination.

The major purpose of the fourteenth amendment

was to safeguard blacks against discriminatory state

laws. Palmer v. Thompson, 403 US. 217 (1971);

Strauder v. West Virginia, 100 U.S. 303 (1880);

Slaughter-House Cases, 3 US. 26 (1873). Consistent

with this purpose, a basic function of the presump-

tion of unconstitutionality has been to protect groups

that have historically been victims of private preju-

against them. Cf. Hernandez v. Texas, 347 U.S. 475,

478 (1954). Racial classifications, when they have

been used, all too often have reflected historie preju-

dices, rather than legislative rationality. Their

purpose has virtually always been the preservation

of white supremacy and the subjugation of minority

groups into an inferior civil status. Their effect has

virtually always been to stigmatize and degrade the

minority group. Thus, the judiciary, as the guardian

of individual rights, has closely scrutinized racial

classifications.

This heightened judicial sensitivity has been par-

ticularly necessary because invidious racial classifica-

tions have so often been facially neutral: much racial

legislation has been ostensibly evenhanded, but on

closer view, has stigmatized, subjugated, and damaged

only the minority group. See, ¢.g., Wright v. Council

of the City of Emporia, 407 US. 451, 461 (1972);

McLaughlin v. Florida, 379 U.S. 184 (1964) ; Loving

v. Virginia, 388 U.S. 1 (1967); Brown v. Board of

Education, 3A7 U.S. 483, 494 (1954). Because even

supposedly neutral racial classifications used by the

state frequently invidiously discriminate against

minority groups, the Court has properly shifted to

the state the burden of justifying the use of these

classifications.

The white majority, however, does not need this

protection. It has not been subjected to historic dis-

crimination or victimized by private prejudice. Af-

firmative action programs such as the Law School’s

minority admissions policy obviously do not stem

from racial antipathy, and their purpose is not to

oppress any racial group. Furthermore, such special

consideration given minority applicants does not com-

pound the burdens imposed by the historical legacy

of slavery, segregation and discrimination. This is

not a classification that seizes on a group that has

historically suffered discrimination and which relies

on this past discrimination as an excuse for heaping

on additional disadvantages. Instead it seeks to al-

leviate these burdens. Cf. Gruenwald v. Gardner, 309

F.2d 591 (2d Cir.), cert. denied, 393 U.S. 982 (1968).

2. The minority admissions program does not burden politically pow-

erless insular minorities.

Another function of strict equal protection review

has been to protect politically weak minority groups

from class distinctions directed against them through

the majoritarian political system. Recently, the Court

noted that one of the traditional indicia of suspectness

is that the class is “relegated to such a position of

political powerlessness as to command extraordinary

protection from the majoritarian political process”

San Antonio School District v. Rodriguez, 411 U.S.

1, 28 (1973). Potential abuse of the legislative process

by the majority has been a crucial factor that has

invited close judicial serutiny of legislation that may

discriminate against “discrete and insular” minorities

which are relatively powerless to protect their in-

terests by resort to the political branches, Graham v.

Richardson, 408 U.S. 365, 372 (1971).

Discrimination burdening insular minorities will

not evoke the political response that the majority can

rely upon to protect its interests from invidious

legislation. United States v. Carolene Products, 304

US. 144, 153 at n4 (1938). Further, when a

minority group complains that it is peculiarly

damaged by certain legislation, the judiciary must

listen closely because the minority did not have a

hand in making the decisions involved. Indeed, a

foundation for the illegality of segregation laws is

that they are imposed on “the group that is not

dominant politically, and therefore, does not make

the choice involved.” Wechsler, Toward Neutral Prin-

ciples of Constitutional Law, 73 Harv. L. Rev. 1, 33

(1959). Often, therefore, the judicial branch has of-

fered minority groups their only hope for redressing

their legitimate grievances,

Thus, this Court has found that heightened judicial

solicitude is appropriate when reviewing legislation

affecting aliens, who are unable to vote [Graham v.

Richardson, 403 U.S. 365 (1971)], blacks, who have

historically been excluded from the political process

[Nizon v. Herndon, 273 U.S. 536 (1927); Gaston

County v. United States, 395 U.S. 295 (1966) ], and

women, who face pervasive discrimination in the

political arena, [Frontiero y. Richardson, 411 U.S.

677, 685 n.17 (1973) (plurality) ]. Consequently, when

the political or administrative process has oppressed

protected minority groups, denied them equal treat-

ment, or ignored their needs, the judiciary has taken

an active role in safeguarding the minority from the

depredations of tae majority, Hunter v. Erickson, 393

U.S. 389 (1969). In contrast, the deference the Court

affords most economic and social regulatory legisla-

tion is largely attributable to the simple fact that the

interest groups that are burdened have “more than

enough power to protect themselves in the legislative

halls.” Dandridge v. Williams, 397 U.S. 471, 520

(1970) (dissenting opinion).

As Justice Powell put it in a recent case in which

the Court refused to extend further the concept of

suspect classes :

The system of alleged discrimination and the

class it defines have none of the traditional in-

dicia 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. San Antonio

School District v. Rodriguez, 411 U.S. 1, 28

(1973).

Thus, when racial classifications are used amelio-

ratively to rectify the effects of discrimination, as

in the present case, the rationale for extraordinary

judicial protection is inapplicable. The white majority

has much less need for an alert judiciary that will

guard it from invidious official action. The majority

no more needs judicial protection from a law school

admissions program assisting minority groups than

it needs to be protected from a special admissions

program for foreign students, military veterans, the

poor or the physically handicapped.**

As the Court stated in Hunter v. Erickson, in

striking down an ordinance requiring iserimi

tion laws to be approved by referendum, “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.” 393 U.S. 389, 391 (1969). The

majority can, any time it feels that a governmental

affirmative action program involves sacrifices it is

unwilling to undertake, resort to the political process

to obtain a remedy.

3. The minority admissions program cannot be presumed to stigmatize

racial minorities.

Petitioner and several amici have argued that the

Law School’s minority admissions program will stig-

*1The only element the challenged racial classification has in com-

mon with the classifications this Court has found presumptively

unconstitutional is that an immutable trait, race, is the basis of

the classification. However, this Court has never ruled that classifi-

vely unconstitu-

tional. See, ¢.g.,Labine v. Vincent, 401 U.S. 532 (1971); Levy v.

Louisiana, 391 U.S.°69 (1968). Moreover, in this instance race is

necessary, method of classification.

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

is being used only as an effective measure to ameliorate diserimina-

tion in this ease, there is no reason to presume that the classification

is arbitrary and unreasonable,

matize minority students. In a fortunately bygone

era, this Court described the white perception oi

blacks as: “... . beings of an inferior order, and al-

together unfit to associate with the white race, either

in social or political relations, and so far inferior

that they had no rights which the white man was

bound to respect . . . a stigma of deepest degradation

was fixed upon the whole race.” Scott v. Sanford 60

U.S. 393 (1857).

In the day of Dred Scott the races were kept

separate because blacks were considered “beings of an

inferior order” and not fit to associate with the white

race. The petitioner now stands the stigma rationale

on its head and implies that the integration of what

would otherwise be a virtually segregated law school

through a minority admissions program will stigma-

tize black law students and lawyers with a stamp of

inferiority. Minority students should not be fore-

closed from a legal education simply because of the

possibility that some whites might misunderstand the

reasons for, and functions of, a minority admissions

program.” A belief that minority lawyers are stigma-

tized solely because they are minorities and may have

attended law school under the minority admissions

program can only stem from racial prejudice which

26The assumption that students admitted through the minority

admissions program are unqualified is totally erroneous. The Law

School accepted no unqualified minority applicants; only those ap-

plicants “whose records indicated that they were capable of suc-

cessfully completing the Law School program” were admitted. Any

suspicion someone might harbor that these students are unqualified

will quickly be di ed since by the time these minority students

are admitted to practice, they will have successfully completed the

same curriculum as their white colleagues.

this Court should not condone. Traditionally law

schools have had special admiasions programs which

give special consideration to veterans, the physically

handicapped, and persons from various geographical

areas. Not only have these students not been stigma-

tized, they have not been distinguished in any mamner

from the student body at large. If minority students

are perceived any differently, racial prejudice can be

the only explanation. The realistic view is that minor-

ity races would be stigmatized even more if there

were only a few minority students allowed in law

schools, and if there continue to be few minority

lawyers.

Moreover, if the image conveyed by a minority ad-

missions program is a social and psychological burden,

it burdens minority students, not whites. As the

potential victims of this burden, members of these

groups are best able to evaluate the risks and decide

whether they are willing to assume them. The notion

that minority law students and lawyers will be bur-

dened by a minority admissions policy is especially

ironic when one considers that special: admissions

programs, which now exist in law schools throughout

the country, in most cases were established and sur-

vive with strong support from minority students and

the minority bar.

Since there is little danger that state policy seeking

to assist minority groups will become oppressive and

invidious if the judiciary does not closely safe-

guard the rights of the majority, there is no reason

for adhering to the presumption of unconstitutional-

a pee —

ity traditionally applied in other cases involving

racial classifications. Of course, this does not mean

the total abandonment of judicial review in cases such

as this. It only means that the Court should not re-

quire the Law School to demonstrate that its minority

admissions program is necessary to the achievement

of a compelling state interest. Under the applicable

standard of review, the rational basis test, it is clear

that the minority admissions program is constitu-

tionally permissible. See Sec. I(C), supra. Indeed,

as the following discussion will establish, the minority

admissions program is supported by a compelling

state interest.

D. Even if a compelling state interest is the standard by which

the University’s actions are to be measured, the University

had such an interest.

Even if this Court should reject each of the argu-

ments presented in the foregoing sections of this

brief, and characterize the racial classification in this

case as suspect, we would contend that the Law

School’s admissions program is justified by a compel-

ling state interest.** Indeed, the admissions policy is

justified by probably the single most important domes-

tic interest: the need to establish and maintain racial

harmony among the people of the United States.

During the 1960’s racial tension throughout the nation

26We recognize that this Court may in this case apply a standard

of review less stringent than the compelling state interest test, yet

require a stronger showing of the rationality of the classification

and the strength of the interest served than is ordinarily demanded

by the rational basis test. However, we will show that the Law

School’s admissions policy passes muster under the compelling State

interest analysis, as well as any less rigorous standard of review.

exploded into prominence as the single most danger-

ous, destructive and intractable domestic problem

facing this nation. The Law School’s minority ad-

missions program represents an attempt to respond

to this fundamental issue.

In civilized nations governments are established

in large part to secure the peaceful resolution of

clashes between conflicting individuals and interest

groups. The legal system, in particular, is assigned

the fundamental task of ensuring that conflicts are

resolved in a peaceful manner. When entire racial

groups are systematically excluded from pusitions

within the legal system, the result is easy to predict.

The excluded group will feel alienated from the

system, and its legitimacy decreased in their eyes.

They will perceive that the system suppresses them,

and responds fairly only to the dominant racial group.

Bell, Racism in American Courts, Cause for Black

Disruption or Despair? 61 Calif. L. Rev. 165, 174-84

(1973). Ultimately, this diminution of perceived

legitimacy can only result in resort to direct action

by excluded groups outside the legal and political

system to secure a forum for their demands and con-

cerns.

At this time in history, it seems particularly ironic

to argue before this Court that the State of Washing-

ton does not. have a compelling interest in the de-

velopment of programs designed to overcome the

exclusion of the nonwhite races from the legal

profession. The interests involved are precisely the

most fundamental interests of all state and local

governments. Individuals may differ about the specific

steps that should be taken in the pursuit of these

fundamental and compelling governmental interests,

but it takes a substantial degree of blindness to argue

that the interest does not exist.

Of course, judicial review of suspect classifications

is not exhausted by a showing of a compelling need

for some governmental action. It must also be shown

that the classification is a rational means to achieve

that interest, and does not impose unnecessary

burdens. Even within these strict limits, however, the

state’s action in this case is constitutional, since there

is no alternative available to the state for integrating

the legal profession other than by ensuring that

minorities are trained for the profession at the state

law schools. Thus, even if the racial classification

involved in this case is reviewed under this Court’s

most stringent standard, the minority admissions

program still meets this test. This was the finding of

the Washington Supreme Court, and it is wholly

correct.

Petitioner has taken the position that the Supreme

Court of the State of Washington was in error in

characterizing the need for additional minority law

students and, ultimately, attorneys, as a compelling

state interest. He has incorrectly characterized the

Law School’s interest in increasing the number of

minority lawyers as stemming primarily from the

belief that minority lawyers provide better representa-

tion for minority clients. Phrased this way, peti-

tioner’s view of the problem is too narrow. In

many individual lawyer-client relationships the race

- of the lawyer is undoubtedly irrelevant, but it can

hardly be disputed that the rights of minority groups

will be better protected if there are more minority

attorneys. This is especially true in those situations

in which racial discrimination is involved, or in cases

in which it might be unpopular for white attorneys

to represent minority clients.

The national need for minority lawyers goes far

beyond whatever need minority clients have to be

represented by attorneys of their own race. It is the

sine qua non, extensively documented by the Kerner

Commiss’on in 1968 [Report of the National Advisory

Commission on Civil Disorders 283-88], of full inte-

gration at every level of society, because it concerns

access to positions of political and economic power

where policy-making and the decisional process affect.

the lives of all citizens. Those cases that have come

before the Court in the areas of school desegregation,

employment and public accommodations, as well as

the extensive civil rights legislation of the last ten

years, have all been directed toward bringing about a

fully integrated society. Other cases involving reap-

poitionment, voting rights and jury selection have

been recognized by the Court as affecting the ability

of minorities to obtain a fair parity of political and

economic power in our society.

As we have argued earlier, the legal profession

plays a critical role in the public and private policy-

making sectors of our society. See §II(A)(1),

supra. Yet, minorities are vastly underrepresented

in these sectors. Among the nation’s approximately

300,000 lawyers, roughly 4,000—less than 11% pereent

—are black. There are only 16 blacks in the House of

Representatives and one in the Senate. Significantly,

over 40 percent of these black legislators are lawyers.

On the basis of evidence such as that provided by

the record in this case relating to the University of

Washington Law School’s past admissions’ practices,

without a minority admissions program racial minori-

ties may never be fully integrated into the legal

profession or the major policy-making positions in

The Supreme Court of the State of Washington

found that there were compelling educational reasons

for having a racially integrated law school student

body. The University recognized, as has this Court,

that an all white le » school damages not only minori-

ties, it also harms white students who are deprived

of the benefits of a racially integrated learning ex-

perience. Cf. Trafficante v. Metropolitan Life In-

surance Co., 409 U.S. 205 (1972). This Court recog-

nized the educational benefits of a racially intevrated

law sehool in Sweatt v. Painter, 339 U.S. 629 (1950)

in which the Court, said:

The law school, the ing, ground for legal

learning and practice, cannot be effective in isola-

tion from the individuals and institutions with

which the law interacts. Few students, and no one

who has practiced law, could choose to study in

an academie vacuum, removed from the interplay

of ideas and the exchange of views with which

the law is concerned. Id. at 634A.

Racial isolation in law school can only buttress racial

prejudices and stereotypes which will be carried over

into professional life. The legal profession can little

afford lawyers who have been isolated from other

races, other cultures, and other ideas.

CONCLUSION

For the reasons set out above, as well as those

stated by the Respondents and other amici in support

of their position, the decision below should be affirmed.

January 29, 1974.

Respectfully submitted,

OCuirrosp Sweet

Roorr A. Cray, Jn.

Russet, W. Gattoway, Jn.

Sreruen Koerxa

Sreruen Rowretwr

Legal Aid Society of Alemeds County

Natuante. R. Jones

Generel Counsel

Wu D. Weis

Cuances Canter

James Merenson

Gronce Hamesron

Assn iete Counsel

Netonel Assocation bor the

Advememart A olved People

Micuas. H. Teany

Davip A. W exerer

Atlante Legal Aid Society, inc.

Hanoi 1, Goooman

Bauce E. Expy

Laurence M. Lavin

Community Legal Service, Inc.

Josernu A. Matena

C. Cuuwsrorner Brown

Legal Aid Bureas, Inc.

Eowagrp R.Srear, Jn.

Legal Aid Society of Cleveland

Aas W. Hovseeman

Michigan Legal Service Assstance Program

Dennis R. Yeaorn

E. Ricnarp Larson

Notional Employment Lew Project

Attorneys for Amici Curiae

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