# Amicus Curiae Brief — DeFunis v. Odegaard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1598%3A26 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 416 U.S. 312 ## Text eo erer ee ee eeeee eee eeeeeenesteeeeeeeeesese eo ee eee eee eee et Feeeeeeseseeeee 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- ee . 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 ...... ee 47 47 49 55 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 ey 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 2 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 3 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 4 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- I RTA PEI ELTL OSE OP PE BEE | ae 5 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 6 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 7 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- z — $ 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, 10 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). 11 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). 12 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 13 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 14 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 15 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). 16 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 17 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- 18 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 19 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 20 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 21 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. 22 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 23 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 24 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 25 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 27 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). 30 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. 31 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. 32 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). 33 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). 34 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. 35 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- 36 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 37 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 38 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 —————————————————————— 39 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. (c) Sinee the law school’s racially discriminatory entry criteria 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, 41 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 ih i ‘ : : 2fiie af ) 2 f i i 3 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, 44 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. 45 “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 46 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. 47 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). 48 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. 49 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: 50 [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 51 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. 52 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. v. Stumph, O©-69-239-06JCL (N.D. Cal., Dee. 20, 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 61 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, 62 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. 7 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 — 64 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 66 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 67 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. ©. Lrowe. Jones 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1598%3A26. Public record. Not legal advice.