Amicus Curiae Brief — DeFunis v. Odegaard

Supreme Court of the Unitei_s

-

OctoBER TERM, 1973.

No. 73-235

Marco Dr Funis, et al., Petitioners,

v.

CHARLES ODECAARD, et al., Respondents.

BRIEF OF THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

AMICUS CURIAE IN SUPPORT OF

THE DECISION BELOW

RicHarp F. Bascock

Ross, Hardies, O’Keefe,

Babcock & Parsons

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

RosweEL. B. Perkins

Debevoise, Plimpton,

Lyons & Gates

299 Park Avenue

New York, New York 10017

KENNETH C. Bass, III

11160 Saffold Way

Reston, Virginia 22090

Davin 8S. TATEL

R. STEPHEN BRownIna

Lawyers’ Committee for

Civil Rights Under Law

733 Fifteenth Street

Suite 520

Washington, D. C. 20005

Attorneys for

Lawyers’ Committee For

. Ciwil Rights Under Law

LLL ES GASSER

Puess or Brron S. Apams Printine, Inc., Wasuincton, D. C.

> s

I NN hie eg ees ce ek at ne

DIN aii ss hr cscnRKRD oxo cesiedd c.

PIII nds: d Oas Caco aks Ce tee a:

I. To roe Extent Tuat Race Was A Factor In

Tis ApMissions Process, No UNcoNSsTITUTIONAL

DiscrimINaTION Was IMPOSED ................ 9

A. Consideration of Race for Purposes of

Integration and Overcoming Historical

Racial Deprivation Is Consistent With The

Fourteenth Amendment and This Court’s

EES CRE er Pe are as 10

1. The Fourteenth Amendment .......... 11

2. This Court’s Decisions ............... 13

B. This Racial Classification Is Not ‘Invidi-

ous’’ and Is Supported By A ‘‘Compelling’’

RE Perak Ra Cle LA ae 17

1. This Classification Is Not Invidious.... 17

2. Attaining Racial Equality In Education

Is A Compelling State Interest ........ 18

Li. Tue Arguments Apvancep Acarnst Tue Dsz-

qision BeLow Are Nor Persuasive ........... 20

A. Petitioners Have Failed To Prove That

The PFYA Standard Should be the Only

Measure of Law School Admissions ...... 20

ii Index Continued

Page

B. Proven Existence of Prior Racial Discrimi-

nation Is Not an Essential Prerequisite to

Affirmative Consideration of Race ....... 23

C. It Is Not Necessary To Draw The Classifi-

cation On The Basis Of Cultural, Educa-

tional or Economic Deprivation .......... 25

III. Reversat oF tHe Decision Betow Wovutp Im-

PERIL THE VIABILITY OF AFFIRMATIVE ACTION

eR SR RE tr retest Sc Oy rene es EY hea 26

ERR LN Aad OSI Ne, See CER Ee 28

TABLE OF CITATIONS

CasEs:

Alexander v. Holmes County Board of Education 396

MA EE: os ans BC de dh wegweichnen ha ets 2, 27

Anderson v. Martin, 375 U.S. 399 (1964) ............ 16

Brown v. Board of Education, 347 U.S. 483

EP Ac ethva nid canbe Wake ceGa Ghee heeKe 15, 16, 17, 27

Contractors Association of Eastern Pa. v. Secretary

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

ee Se OE Pa Se ar aL Uiaahasckiseecs 28

Gibson v. Mississippi, 162 U.S. 565 (1896) .......... 13

Green v. County School Board, 391 U.S. 430 (1968)... 27

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... 9, 21, 27

16

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

Korematsu v. United States, 323 U.S. 214 (1944).... 16

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

i i teedkeh se anne eethal Cota dines 6's 4 22

Loving v. Virginia, 388 U.S. 1 (1967) .............. 16, 17

McLaughlin v. Florida 379 U.S. 184 (1964) .......... 16

Missouri ex rel Gaines v. Canada, 305 U.S. 337

SE CRU needs xs chek ebh ineecaGick’on veces 28

Norwalk CORE v. Norwalk Redevelopment Agency,

we SS ee eee

Offerman v. Nitkowski, 378 F.2d 22 (2d Cir. 1967) .. 15,18

Palmer v. Thompson, 403 U.S. 217 (1971) ........... 13

Plessy v. Ferguson, 163 U.S. 537 (1896) (dissenting

SRC Sut aa chidnseesho4adn dn Gaend obawes ss 0

Porcelli v. Titus, 302 F. Supp. 726 (D.N.J. 1969) .... 24

Index Continued

Reed v. Reed, 404 U.S. 1 (1971) ..............0005:

Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873).. 14

Strauder v. West Virginia, 100 U.S. 303 (1879)...... 16

Swann v. Charlotte-Mecklenburg Board of Education,

ee et: Re ert rer 14, 15, 18, 24

Sweatt v. Painter, 339 U.S. 629 (1950)..... 9, 18, 19, 28, 29

Tigner v. Texas, 310 U.S. 141 (1940) ................ 20

Turner v. Fouche, 396 U.S. 346 (1970) ............. 25

United States v. Scotland Neck City Bd. of Ed., 407

She Se ROE is bane Ub ek i Coast eees Rat 27

Wanner v. School Board of Arlington County, 357 F.2d

Gee Ce Se SD <i. d sraccansubawebuncant ciecas

Weg eT) Council of City of Emporia, 407 U. S. 451

(1 dike sri ina eae sstonine nana amawnine kek bs 27

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ........... 16

STATUTES AND EXECUTIVE ORDERS

Act of March 3, 1865, 13 Stat. 507 .................. 12

Act of May 17, 1882, 22 Stat. 88, 25 U.S.C. §46....... 12

Civii Rights Act of 1964, 42 U.S.C. § 2000(d)........ 23

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ....... 21, 27

Executive Order 11246, 30 Fed. Reg. 12319, as amended

CHEN Wiis cbs ke ecards hencsa chawbasthercasess 27-28

OTHER AUTHORITIES

Association of American Law Schools, The Law

Schools and Minority Group Students, 12 (1970).. 22

Bell, In Defense of Minority Admissions Programs:

"A Response to Professor Graglia, 119 U. Pa.

es & FF 8 eee ee eee 21

Cooper & Sobol, Seniority and Testing Under Fair

Employment Laws: A General Approach to

Objective Criteria of Hiring and Promotion, 82

EEOrC. Ba: Be. Be CEG oon vn ncandsccecascancs 9

Fleming & Pollack, The Black Quota of Yale Law

School—An Exchange of Letters, 19 The Public

ts: SU EE acs eva ncachceekabokecuaka 22

Freund, Constitutional Dilemmas, 45 B.U.L. Rev. 13.. 12

Freund, P., On Law and Justice 44 (1968) .......... 14

Hyman, Segregation and the Fourteenth Amendment,

2. Be | eee

Index Continued

LSAT Annual Council Report 201-02 (1970) ........ 22

are S., The oy History of the American

Secondary ema + hen in the United States, Fi-

nancing Post-Secondary Education in the United

States 3. (1973) ins 8 GOR/ GC cob vabeasObeUsbse de deed 19

O'Neil, Preferential Admissions : Equalizing the Access

of Minority Groups to Higher Education, 80 Yale

Bs McA SEED 4 ccctecnnssgbadsctedies 10, 17, 18, 26

Report of the National Advisory Commission on Civil

REOUENGR TRUE. ccsncncasnncdudencbescbstdoss 11

bahar 1 Third New International Dictionary mi

Wright, e Role of the Supreme Court in a Demo-

cratic Society—Judicial Activism or Restraint?,

Sp GN A CIE ne deeb de dasecccsbsusce 14

IN THE

Supreme Court of the United States

Octoser TERM, 1973.

No. 73-235

Marco De Funis, et al., Petitioners,

v.

CHARLES ODEGAARD, et al., Respondents.

BRIEF OF THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

AMICUS CURIAE IN SUPPORT OF

THE DECISION BELOW

The opinion of the Supreme Court of Washington

is reported at 82 Wn.2d 11, 570 P.2d 1169, and is re-

printed as Appendix A to the Petition for a Writ of

Certiorari.

JURISDICTION

Certiorari was granted November 19, 1973, and this

case is before the Court under 28 U.S.C. § 1257(3).

CONSENT OF THE PARTIES

The Lawyers’ Committee for Civil Rights Under

Law files this brief with the consent of both parties

whose letters of consent have been filed with the

Clerk.

QUESTION PRESENTED

Whether applications for admission to a state law

school filed by individuals of a recognized ‘‘minority”’

race can be reviewed by a special admissions process

designed: (1) to identify qualified applicants whose

qualifications could not be accurately assessed without

such a special procedure; and (2) to ameliorate the

continuing effects of past racial discrimination by ob-

taining a law school student body of qualified ‘‘mi-

nority’”’ and ‘‘majority’’ students?

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under

Law was organized on June 21, 1963, following a con-

ference of lawyers called at the White House by

President John F. Kennedy. It is a nonprofit private

corporation whose principal purpose is to involve pri-

vete lawyers throughout the country in the struggle

to assure all citizens of their civil rights. The mem-

bership of the Committee includes eleven past presi-

dents of the American Bar Association and three

former Attorneys General. The Committee filed a

brief and argued in this Court as an amicus in

Alexander v. Holmes County Board of Education, 396

U.S. 19 (1969).

The Committee, being composed of lawyers, is par-

ticvlarly concerned with civil rights issues involving

legal education. The Committee’s ‘‘Retained Lawyer

Program,”’ designed to assist black lawyers establish

legal in Mississippi, is based on the Com-

mittee’s belief that adequate legal services for minori-

ties can be assured in the long run only by increasing

the number of minority lawyers in the legal profes-

sion. Because we believe the issue in this case is of

critical importance to achieving such racial equality in

legal education and of far-reaching significance to the

entire civil rights effort, the Committee files this brief

in support of the decision below.

INTRODUCTORY STATEMENT

Petitioner Marco DeFunis, Jr., twice applied for

admission to the University of Washington Law

School and was twice denied such admission. Follow-

ing the second denial, and prior to the commencement

of classes in September of 1971, DeFunis, his wife

and his parents filed suit in the Superior Court of

Washington seeking an order compelling his admis-

sion.’ Petitioners’ complaint claimed only that the

law school unlawfully admitted students who were

‘“‘not residents and taxpayers of the state of Wash-

ington” as well as ‘“‘many candidates whose quali-

fications and credentials [were] much below the cre-

dentials and qualifications of’’ DeFunis (App. 14

15).? The complaint set forth in detail DeFunis’

admirable undergraduate and graduate scholastic

records, academic honors, and high ranking on the

Law School Admission Test (““LSAT’’). The com-

plaint predicted that DeFunis would perform in law

1DeFunis had been admitted to four other law schools, but

preferred to attend the University of Washington.

2‘ App.’’ refers to the Single Appendix filed in this Court;

“*R.”’ refers to the full record filed with the Clerk, ‘‘Pet. App.’’

refers to the Appendix to the Petition for Certiorari.

4

school ‘‘as an honor student.’’ (App. 15). Thus,

this case was initiated on a theory that admissions to

law school must be strictly and mechanically governed

by ranking applicants on the basis of grade-point aver-

ages and LSAT scores. The complaint did not allege

the existence of racial discrimination.

The racial issue now before this Court arose at

the trial of this case when it developed that the

law school had adopted a special admissions program

to identify qualified applicants of recognized ‘mi-

nority’’ ethnic background. Applications of such

minority individuals, t.¢e., Black Americans, Chicano

Americans, American Indians, and Philippine Ameri-

cans, were given special consideration by admissions

officers believed specially qualified to evaluate the po-

tential success in law school of such applicauts. All

files of Black applicants—regardless of the applicant’s

‘Predicted First Year Average’? (PFYA) *—were

reviewed initially by both a law professor who had

served as director of the school’s summer training pro-

gram for disadvantaged prospective law students and

a second-year Black law student who had served

earlier ‘‘as director of the Governor’s Multi-Service

Center in Seattle, a job involving considerable per-

sonnel evaluation.” (82 Wn. 2d—, 570 P.2d 1175;

Pet. App. A-10). These two individuals were se-

lected, according to the admissions chairman, because

their experience made them “‘best .. . able to assist

the committee in the interpretation of those files.’

(R. 00509). Applications of all Chicanos, American

Indians, and Philippine Americans were reviewed by

an associate dean of the law school. All minority

* This figure is a mathematic calculation based on pre-law school

grades and LSAT scores.

5

applications were later considered by the full admis-

sions committee, which was the only body that could

extend an offer of admission. Minority applications

were evaluated as a group and not compared directly

with non-minority applications. (R. 00457-9)

Applications of non-minority individuals with a

PFYA of 74.5 or greater were also in all cases con-

sidered by the full admissions committee. Applica-

tions of non-minority individuals with PFYA’s below

74.5 were reviewed initially only by the chairman of

the committee who would refer them to the full com-

mittee or reject them himself, As a general rule ap-

plications with a PF YA of 77 or above were considered

by the full committee immediately upon receipt of all

necessary papers, while those below 77—as well as

several above 77—were deferred for later considera-

tion at the same time as those between 74.5 and 77

and those below 74.5 which had been referred to the

full committee by the chairman—a referral option

which he exercised frequently. (R. 00448) Thus,

regardless of PFYA, no applicant was automatically

accepted (R. 00363) and seven to twelve with PFYA’s

above 77 were in fact rejected. (R. 00449; App. 34) *

The trial court concluded that the different pro-

cedures employed in evaluating minority applicants

*It is important to note that the minority admissions program

did not operate so as to impose a substantial or unreasonable

burden on the majority ‘‘white’’ class. The admissions process

resulted in the acceptance of 37 ‘‘minority’’ students out of more

than 275 total acceptances, while 18 of the approximately 145

students who actually enrolled were ‘‘minority’’ individuals (App.

37-46; Def. Ex. 44, p. 27). Thus, approximately 13.4% of the

applicants accepted and 12% of students entering were ‘‘minority’’

individuals. If Asian students are considered as part of the

‘*minority’’ class, the percentages increase to 15% of students ad-

mitted and 15% of actual enrollees who were ‘‘minority’’ indi-

viduals.

6

constituted a denial of equal protection of the laws in

violation of the Fourteenth Amendment ( App. 54).

That Court further found “‘[t]hat some minority stu-

dents were admitted . . . prior to and instead of

[DeFunis] with college grades and aptitude test

scores [PFYA’s] so low that had they been white,

their applications would have been summarily denied.”’

(Finding XXIII, App. 53). This finding was made

despite the fact that the record shows unequivocally

that no applicant—regardless of race—was summarily

rejected on the basis of low PFYA’s. Every applica-

tion, regardless of race and regardless of PFYA, was

reviewed individually by at least one member of the

admissions committee. Indeed, at least ten of the non-

minority applicants with PFYA’s below 74.5 were

actually admitted to the law school following full-

committee review. (App. 37-46). And approxi-

mately fifty applications of non-minority applicants

with PFYA’s below 74.5 were reviewed by the full

committee following screening by the chairman.

(R. 00028). The record is thus clear that there was no

threshhold PFYA below which a non-minority ap-

plicant was summarily rejected. PFYA’s were used

to screen applications, but admission or rejection de-

pended on whether or not the applicant was judged

“capable of successfully completing the law school

program”’ and able “‘to make significant contributions

to law school classes and the community at large.”’

(82 Wn.2d—, 570 P.2d 1176; Pet. App. A-10, 12). The

admissions officials saw PFYA’s as only one factor in

a determination of ‘‘qualifications”; the trial court

equated ‘‘qualifications’’ with PFYA’s alone. (R.

60553-561).

Although different procedures were utilized to screen

minority and non-minority applicants, the standard of

7

admissions applicable to all was the likelihood of suc-

cess in law school. As the chairman of the admissions

committee testified :

‘Our attempt, throughout, is to assess the

relative probability of the individual’s succeeding

in law school, that criterion was applied to these

[minority] applicants, as well as it had been to

the other applicants. They were simply not di-

rectly compared. We sought, within the minority

category, those persons who we thought had the

ighest probability of success in law school.’’

R. 00459.

The trial court ordered the law school to admit

DeFunis in September of 1971. Although the Wash-

ington Supreme Court later reversed that order in

March of 1973, DeFunis has continued his legal educa-

tion at Washington without interruption by virtue of

a stay granted by Mr. Justice Douglas on June 5,

1973. Assuming continued satisfactory progress,

DeFunis will graduate in June 1974.

Some of the briefs filed in this Court have sought

to portray this case as one involving rejection of

‘*qualified’’ non-minority applicants in favor of ‘‘un-

qualified’’—or at least ‘‘far less qualified’’—minority

applicants. We submit that this record will not

support such a thesis; it would be an error of extraor-

dinary dimensions to decide the important con-

stitutional issue in this case on the basis of that

characterization of the record. The record here

does show what the law school itself recognized when

it instituted the special admissions program for mi-

nority applicants, namely, that law school admissions

‘‘qualifications’’ cannot be measured purely mecha-

nistically, at least not in a profession as intensely hu-

man and personal as the law. Academic credentials

8

and high test scores do not necessarily make good law

students, much less good law practitioners. Some of

this country’s most eminent lawyers and jurists came

from educational and cultural backgrounds which

might have produced ‘‘low’? PFYA’s under today’s

evaluative techniques. Yet no mechanical test known

to man can accurately assess the qualities of judgment,

character, stability and compassion needed in good

lawyers and law students. Those traits demand per-

sonal evaluation. Where the applicant is an individual

whose own background, education and experience may

differ markedly from that of the conventional admis-

sions officials and whose conventional test scores may

not accurately predict performance, special pro-

cedures may well be necessary. The real issue in this

case is whether a law school can permissibly recognize

this fact and develop special admissions procedures to

do something about it.

The dean of the law school testified without contra-

diction on the need for special evaluation of minority

applications:

‘*We are also aware that because of these fac-

tors [cultural disadvantage] some of our usual

methods of evaluating [minority] applicants are

not accurate.

“Some of the indicators are not particularly

good ... they have a margin of error even as to

students from the majority culture, and we know

that as to students from these minority cultures,

they may be even less reliable.

“We set [minority applications] aside and we

separately evaluate them because they present a

separate kind of evaluation problem.” (R.

00524-525; see also R. 00087-88, 00173, 00190-191,

00516).

we aera: WR? ECE

ERIN IF EE PERE SOR LLL PL A RIE RD

9

One central fact emerges in this record. As the

Washington Supreme Court itself recognized, all the

admitted applicants—regardless of race, and regardless

of admissions procedures—were judged ‘‘qualified’’ to

complete the law school program by the admissions

committee. (82 Wn.2d—, 570 P.2d 1176; Pet. App.

A-12). The only way one can conclude that some

minority students who were admitted were ‘‘less qual-

ified’’ than other students is by forcing the question

into an unrealistic and unwise framework of statis-

tical objectivity—a reduction of the admissions process

to a mechanical science of computers instead of an art

of human dimensions. Neither our law schools nor

our courts should fall prey to this deceptively logical

measure of aptitude, especially at a time when the

validity of standardized tests when used to evaluate

minority individuals is widely questioned. *

ARGUMENT

I. TO THE EXTENT THAT RACE WAS A FACTOR IN THIS

ADMISSIONS PROCESS, NO UNCONSTITUTIONAL DISCRIM-

INATION WAS IMPOS=D.

The record here is clear that race per se was not the

single determinative factor in admission to this law

school. The process did not involve automatic ad-

mission or rejection of any applicant solely because of

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

The conclusion sustained by this record as to the role

of race in this admissions process is that applicants

of certain minority races went through an initial ad-

missions screening process somewhat different than

° See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971);

Cooper & Sobol, Seniority and Testing under Fair Employment

Laws: A General Approach to Objective Criteria of Hiring and

Promotion, 82 Harv. L. Rev. 1598 (1969).

10

that employed for non-minority applicants. Further-

more, even if the record is read to reach some con-

clusion regarding the relative ‘‘qualifications’’ of

minority vs. non-minority applicants, the most that

can be said is that some minority applicants with

lower mechanical ‘‘predictions’’ of scholastic success

were admitted while some non-minority applicants

with higher prediction quotients were denied admis-

sion. The use of race here does not violate the Consti-

tution. °

A. Consideration of Race for Purposes of Integration and

Overcoming Historical Racial Deprivation Is Consistent

With the Fourteenth Amendment and This Court's De-

cisions.

The history and purpose of the Fourteenth Amend-

ment as well as this Court’s decisions do not sustain

the conclusion that official consideration of race is

per se unconstitutional state action without regard to

the circumstances. The first Mr. Justice Harlan’s oft-

quoted remark that ‘‘the Constitution is color-blind, and

... does not... permit any public authority to know

the race of those entitled to be protected in the enjoy-

ment of [civil] rights,’’ Plessy v. Ferguson, 163 U.S.

537, 554, 559 (1896) (dissenting opinion), cannot be

taken out of its historical context and distorted into

a rigid, mechanical rule that uncritically equates con-

sideration of race with unconstitutional action. The

Framers of the Fourteenth Amendment did not intend

such a simplistic rule. Indeed if race could never be

* For a scholarly and thorough examination of the legal, socio-

logical, educational and practical aspects of the issues involved in

this case, see O’Neil, Preferential Admissions: Equalizing the

Access of Minority Groups to Higher Education, 80 Yate L.J. 699

(1971).

Pd es Din ed es ahs eh ke tae tii ey a add Se ie ee

4 | rer

11

considered by governmental authority, effective imple-

mentation of the Fourteenth Amendment would be

impossible.

1. The Fourteenth Amendment

The social, political and legal history of the Four-

teenth Amendment is well known. Since the first col-

onists settled this country in the early 1600’s until

after the Civil War, slavery and subrogation of mi-

norities were widespread in America. Indeed the first

Americans, the Indians, were subjected to conquest,

ridicule and forced isolation well into the 1890’s and

even today remain isolated and segregated in many

ways. That unconscionable aspect of the history of

the formation of this Republic, born with racial dis-

crimination and slavery in its midst, led to civil war.

That war in turn led to historic declarations of equality

and the legal termination of slavery by the ratification

of the Thirteenth Amendment. But neither the war

nor the related constitutional amendments or enabling

legislation led to immediate equality. Even today the

promises of racial equality set forth by Congress more

than 100 years ago have not been realized. It is un-

acceptable, but nonetheless true, that substantial bar-

riers to equality remain. As recently as 1968, a

presidential commission was able to state—and docu-

ment—the conclusion: ‘‘Our nation is moving

toward two societies, one black, one white—separate

and unequal.’’ Report of the National Advisory Com-

mission on Civil Disorders, at 1. History well proves

the difficulties of obtaining—through law—the ultimate

goal of equality: a society in which every individual is

in truth treated equally as an individual, regardless

of raes, creed, color, sex or national origin. The Law-

vers’ Committee for Civil Rights Under Law is funda-

POO ATT ST EY a RE ae oO rears ~ - : PSS ae ee

” Bee oe

12

mentally committed to the attainment of that goal at

the earliest moment. We are not yet there. Until we

are, programs such as that involved here are not only

proper, but are necessary. Until we can honestly say

that we have a society in which race is irrelevant, the

Fourteenth Amendment cannot be so “‘color-blind’’ as

to prohibit achievement of racial equality. ‘‘Equal

protection, not color blindness, is the constitutional

mandate, and the experience of liberty of contract

should caution against an absolute legal criterion that

ignores practical realities.” Freund, Constitutional

Dilemmas, 45 B.U.L. Rev. 13, 20.

The Framers of the Fourteenth Amendment and the

Reconstruction Congress were not so naive as to be-

lieve that equality was attainable solely through enact-

ment of legal provisions declaring all are equal. They

knew that eliminating racial discrimination required

a process which at times would necessitate affirmative

consideration of race to attain the equality so long

denied. Indeed many of the same individuals who

wrote the Fourteenth Amendment participated in the

passage of legislation creating the Freedman’s Bureau

in 1865, Act of Mar. 3, 1865, 13 Stat. 507. Although

“Ttlhe Bureau’s work was not confined to Negroes,”

S. Morrson, Tor Oxrorp History of THE AMERICAN

PEOPLE 711 (1965), its primary purpose and design

was to aid emancipated slaves facing the ‘“‘burdens”’

of freedom. Passage by Congress of one of the so-

ealled ‘“‘Indian Preference Acts,’’ §6 of the Act of

May 17, 1882, 22 Stat. 88, 25 U.S.C. § 46, also suggests

that the contemporary view of the Congress was not to

eliminate every consideration of race in government

action regardless of consequence or intent. That

statute, which mandates that preference be given to

RAAT BIO MELA SOOT EERO EO I EBERLE PVE A TRNS PNE MOSS

Pate Be Saat A oe a SIR se :

13

Indians in hiring clerical, mechanical and other help

on reservations and by Indian agencies, would have

been impossible under the ‘‘color-blind”’ theory ad-

vanced by some briefs in this case."

The Fourteenth Amendment was intended ‘‘to elim-

inate the degrading concomitants as well as the bare

fact of chattel slavery.’” Hyman, Segregation and the

Fourteenth Amendment, 4 Vanp. L. Rev. 55 (1951).

Elimination of the badges of slavery required consid-

eration of race then and in some cases it requires con-

sideration of race now. Hopefully, some day, such

consideration will be unnecessary.

2. This Court's Decisions

This Court has recognized that the Fourteenth

Amendment envisions a process for attaining equality,

not a static standard forever precluding any consid-

eration of race. As this Court stated in Palmer v.

Thompson, 403 U.S. 217, 220 (1971), ‘History shows

that the achievement of equality for Negroes was the

urgent purpose ... for passage of the Fourteenth

Amendment. . . .”” (emphasis added). Until that

equality is achieved, the purpose will not be fulfilled.

"We recognize that technically the Freedman’s Bureau and

Indian preference laws represented federal legislation while the

Fourteenth Amendment is restricted to state action. But cer-

tainly the post-Civil War Congress would not have passed those

race-conscious acts if they truly believed the Fourteenth Amend-

ment prohibited any consideration of race by the States. Those

Congressmen, like this Court in 1896, undoubtedly recognized

“that the Constitution of the United States in its [then] present

form, forbids, so far as civil and political rights are concerned,

discrimination by the general government or by the states, against

any citizen because of his race.’’ Gibson v. Mississippi, 162 U.S.

565, 591 (1896) (emphasis added).

PA APES E ES GI

— ‘

Re ete ne Mane Ae, Mae NS ee ye i ie a a a tes _ ot OF tn eee!

>

14

In its first opinion interpreting the Fourteenth

Amendment, this Court recognized the central purpose

of that provision: ‘‘The existence of laws in the states

where the newly emancipated Negroes resided, which

discriminated with gross injustice and hardship against

them as a class was the evil to be remedied by this

clause....’’ Slaughterhouse Cases, 83 U.S. (16 Wall.)

36, 81 (1873) (emphasis added). Yet the Court has

carefully eschewed any formulation of the Fourteenth

Amendment that would prohibit the official considera-

tion of race involved in this case. Indeed, commenta-

tors have stated that racial classifications favoring

minority groups, rather than discriminating against

them, are not unconstitutional. Professor Freund, for

example, has suggested that no constitutional issue is

raised by admissions programs designed to benefit the

“disadvantaged segment of the community, whether

economically, educationally, or politically.”’ P. Freunp,

Own Law anv Justice 44 (1968). Another writer has

argued on a broader plane:

“(The function of protection ... is to

shield groups or individuals from stigmatization

government. Whether or not particular legis-

lation stigmatizes is largely a sociological question

requiring consideration of the structure and history

of our society as well as examination of the statute

itself. Legislation favoring N then, would

be constitutional because it is rational and because

in our society it would not stigmatize whites.”’

Ww The Role of the Supreme Court in a Demo-

cratic Society—Judicial Activiom or Restraint?,

54 Cornet L.Q. 1, 18 (1968).

This Court has itself held that race can be consid-

ered in educational planning, at least where desegrega-

tion of facilities is involved. In Swann v. Charlotte-

15

Mecklenburg Board of Education, 402 U.S. 1 (1970),

the Court approved a pupil transportation plan that

relied extensively on race—and race alone—in deter-

mining school assignments. The Court recognized the

realities of educational equality and the per-

missibility of racial assignments among schools, even

when judicially-ordered desegregation was not in-

volved:

“School authorities are traditionally cha with

broad power to formulate and implement educa-

tional pgpen Banged might well concl for example,

etree Starts es oe

each se ve a

scribed ratio a hees to white students valiedting

ng

the proportion for the district as a whole. To do

this as an educational policy is within the broad

yr oe | powers of school authorities; absent

a of a constitutional violation, however

that would not be within the authority of a federal

court.’”’ 402 U.S. 16.

This case cannot therefore be decided simply by iso-

lating the fact that applicants of minority races were

treated differently. Racial classification is not per se

unconstitutional without regard to the circumstances.’

The decisions of this Court striking down considera-

tion of race by governmental authorities have involved

certain characteristics not found in this case. The

clearest unconstitutional use of race occurs when the

*As one federal appellate court has put it, ‘‘ Consideration

of race is necessary to carry out the mandate in Brown .... Where

its use is to insure against, rather than to promote deprivation of

equal educational opportunity, we cannot conceive our courts would

find that the state denied equal protection to either race by re-

quiring its school boards to act with awareness of the problem.’’

Offerman v. Nitkowski, 378 F.2d 22, 24-25 (2d Cir. 1967).

16

government singles out one race and imposes sanctions

or deprivations of liberty. See, ¢.g., Yick Wo v. Hop-

kins, 118 U.S. 356 (1886) ; but ef. Korematsu v. United

States, 323 U.S. 214 (1944). Other cases involve state-

compelled segregation of races, ¢.g., Brown v. Board of

Education, 347 U.S. 483 (1954). Next are cases in

which the state encourages or facilitates private racial

segregation, perhaps on pain of cr‘minal sanction, e.g.,

Loving v. Virginia, 388 U.S. 1 (1967) ; McLaughlin v.

Florida, 379 U.S. 184 (1964). Finally there are the

laws which encourage private racial discrimination or

impose stigmas on individuals, e.g., Anderson v. Martin,

375 U.S. 399, 402 (1964) (statute requiring racial iden-

tification on ballots held unconstitutional because the

state might thereby ‘‘encourage its voters to discrim-

inate upon the grounds of race’’) ; Hunter v. Erickson,

393 U.S. 385 (1969) (requiring a referendum on a fair

housing ordinance held to place special burdens on

minorities and facilitate discrimination) ; Strauder v.

West Virginia, 100 U.S. 303, 308 (1879) (unconsti-

tutional to ‘‘brand upon [blacks] an assertion of their

inferiority”’ by excluding them from juries).

Each of these cases involve one of two elements:

either maintenance of racial segregation or imposition

of a recognizable psychological stigma or badge of

inferiority. Neither of those factors is present here.

Washington’s law school admissions program was in-

tended to—and will—promote an integrated society.

It cannot be seriously contended that the “‘excluded”’

non-minority applicants were stigmatized or branded as

inferior because of their race.

17

B. This Racial Classification Is Not “Invidious” and Is

Supported by a “Compelling State Interest.”

The court below held that the admissions procedure

was not an unconstitutional racial classification. Ra-

cial classifications are normally “suspect’’ and con-

sideration of their constitutionality involves two sub-

questions: (1) is the racial classification ‘‘invidious;”’

and (2) is the classification rationally related to a

“‘eompelling’’ state interest. Cf., O'Neill, op. cit.

supra, at 711-18.

1. This Classification Is Not Invidious.

In a recent application of the “‘race-as-a-suspect-

eategory’’ analysis, this Court again noted, ‘‘[t]he

clear and central purpose of the Fourteenth Amend-

ment was to eliminate all official state sources of

invidious racial discrimination,” Loving v. Virginia,

388 U.S. 1, 10 (1967) (emphasis added). Throughout

a long line of cases that critical adjective has been

repeated. The dictionary defines the term as meaning

detrimental] to reputation . . . full of envious resent-

ment,’’ Wesster’s Tuimp New InrTerwationaL Dic-

TIONARY 1190 (1966). This Court itself expressed the

same meaning in Brown v. Board of Education, supra,

when it noted the inevitable stigma imposed on the

minority by racial segregation:

“To separate them from others of similar age

and qualifications solely because of their race

generates a feeling of inferiority as to their status

in the community that may affect their hearts and

minds in a way unlikely ever to be undone.”’ Jd.

at 494.

So viewed, the effect of the classification involved here

is not invidious:

“A preferential admissions system for minority

group students is clearly not a form of “‘invid-

18

ious’’ discrimination as that test has been defined

by the courts. The goal of preferential admis-

sions is not to separate the races, but to bring them

together. Moreover, no conduct is made criminal,

so that the precedents which have struck down

state statutes where race has been an element of

criminality are irrelevant. But even more impor-

tant than the obvious differences between the goal

of a preferential admissions system and the goals

the Court has in the past found to be impermis-

sible or invidious are the differences in the effect

of such a system. Preferential admissions do not

represent a covert attempt to stigmatize the

majority race as inferior; nor is it reasonable to

expect that a possible effect of the extension of

educational preferences to certain disadvantaged

racial minorities will be to stigmatize whites.”’

O'Neil, Preferential Admissions, supra, at 713.

2. Attaining Racial Equality in Education

Is a “Compelling” State Interest.

The central importance of racial equality in educa-

tion is obvieus and has repeatedly been recognized by

this and other courts. Indeed the importance of equal

education has been a sufficient factor to justify judici-

ally-decreed affirmative consideration of race. E.g.,

Swann, supra; Wanner v. School Board of Arlington

County, 357 F.2d 452, 454 (4th Cir. 1966); Offerman

v. Nitkowski, 378 F.2d 22 (2d Cir. 1967). The goal of

equality is especially important in legal education.

Racial integration of law school student bodies fur-

thers important societal interests as this Court has

itself noted:

‘‘ Although the law is a highly learned profession,

we are well aware that it is an intensely practical

one. The law school, the proving ground for legal

learning and practice, cannot be effective in isola-

19

tion from the individuals and institutions with

which the law interacts. Few students and no

one who has practiced law would choose to study

in an academic vaccum, removed from the inter-

play of ideas and the exchange of views with which

the law is concerned.’’ Sweatt v. Painter, supra,

at 634.

The Washington Supreme Court here correctly ana-

lyzed the ‘‘compelling state interest’’ issue:

“‘The legal profession sce a critical role in the

policy making sector of our society, whether deci-

sions be public or private, state or local. That

lawyers,in aking and influencing these decisions,

should be cognizant of the views, needs and

demands of all segments of society is a principle

beyond dispute. The educational interest of the

state in producing a racially balanced student

body at the law school is compelling.

Finally, the shortage of minority attorneys—and,

consequently, minority prosecutors, judges and

public officials—constitutes an undeniably com-

pelling state interest. If minorities are to live

within the rule of law. they must enjoy equal

representation within our ‘es = ystem.’’ 82 Wn.

2d at—, 570 P.2d at 1183-84, “et. App. A-26.

Within the past few months a presidential commis-

sion has concluded that in spite of recent efforts to

overcome racial discrimination in higher education,

an equal opportunity to attend college is still not avail-

able to racial and ethnic minorities. NationaL Com-

MISSION ON THE FINANCING OF PosTSECONDARY Epuca-

TION, FINANCING POSTSECONDARY EDUCATION IN THE

Unitep States (1973). That finding highlights the

continued need for special admissions procedures

such as the one involved here.

20

The special admissions procedure employed for

minority applicants is a rational means of achieving

the desired goal of educational equality. The Uni-

versity of Washington Law School officials reasonably

concluded that traditional admissions procedures did

not adequately evaluate minority applicants; they

designed a system which could reasonably be expected

to attain more accurate evaluations. That system

employed individual review of minority applicants by

persons familiar with the problems of those appli-

cants and able to gain insight into true ability. It is

not irrational to conclude that special cases need

special consideration. See Reed v. Reed, 404 U.S. 1, 75

(1971) ; Tigner v. Texas, 310 U.S. 141, 147 (1940). Nor

is it irrational to conclude that today’s educational

tests and majority-oriented college programs do not

predict law school performance as accurately for the

minority applicant as they do for the non-minority

applicant.

Il. THE ARGUMENTS ADVANCED AGAINST THE DECISION

BELOW ARE NOT PERSUASIVE.

Petitioners and the amici supporting their position

advance varied attacks on the decision below. None

are persuasive.

A. Petitioners Have Failed To Prove That the PFYA

Standard Should Be the Only Measure of Law School

Admissions.

The central thesis of petitioners’ argument—as well

as the basic assumption of the trial court’s findings—

proceeds from an analysis of law school admissions

based solely on grades and tests. One commentator

foresaw the thrust of this argument against minority

admissions programs at law schools. It is based, he

wrote, on a “‘leap from the undeniably correct premise

21

that students incapable of doing law school work

should not be admitted to law school, to the wholly

erroneous conclusion that law schools can and should

determine student capability on the basis of under-

graduate grades and LSAT scores. It assumes that

through utilization of such criteria, admissions officers

will unerringly select the best and most qualified appli-

cants. This has never been the case.’’ Bell, In Defense

of Minority Admissions Programs: A Response to

Professor Graglia, 119 U. Pa. L. Rev. 364, 366 (1970).

This ‘‘test-and-grade’’ approach is not only factu-

ally erroneous, but has been rejected as a matter of

law by this Court in an analogous context. In Griggs

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

held, without dissent, that employment testing or

measuring procedures could not be given controlling

force in hiring if the effect was to exclude minority

applicants unless those tests ‘‘are demonstrably a rea-

sonable measure of job performance.” Id. at 436.

Recognizing that inferior education in the formative

years leads to lower performance on intelligence and

ability tests in later years, id. at 430, the Court placed

on the proponent of ability testing the burden of show-

ing that the tests used were accurate in their predic-

tions and therefore not racially discriminatory.

Although Griggs involved a statutory question con-

cerning § 703 of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2, the analysis used there is equally applicable

here. Where utilization of ability tests has the effect

of excluding minority applicants, those tests become

themselves ‘‘suspect’’ and the proponent of relying

solely on testing bears the burden. Since it is the peti-

tioners who seek here to base admissions solely on

tests and grades, it is their classification that is “‘sus-

pect,’’ not that of the law school.

The record in this case justifies the respond-

ents’ conclusion that utilization of grade and LSAT

scores alone results in exclusion of minority stu-

dents. According to a study of the American Bar

Association’s Section of Individual Rights and Re-

sponsibilities (Def. Ex. 7), approximately 2.7% of

the students enrolled in law schools throughout the

Nation in 1969-70 were black. Even that statistic

can be misleading unless one notes that in the same

year an estimated fifty law schools of the roughly 140

schools approved by the ABA enrolled 90% of all

minority students. AssociIATION OF AMERICAN Law

ScHoo.s, THE Law ScHOoLs AND Minority Group Srv-

DENTS, 12 (1970). Low percentages of minority stu-

dents go hand in hand with high reliance on LSAT

scores and grade averages. Schools which have ob-

tained higher numbers of minority students have done

so by giving less emphasis to such test scores. See,

e.g., Fleming & Pollack, The Black Quota of Yale

Law School—An Exchange of Letters, 19 Tur Pustic

INTEREST, 44, 50-51 (1970). The debate over ‘‘cultural

bias’”’ in the LSAT is widespread and has resulted in

numerous discussions as well as studies by LSAT of-

ficials themselves. LSAT ANnNvuaL Councu, Report

201-02 (1970). In this context petitioners’ advocacy

of ‘‘quality’’ admissions standards must be viewed

with the same legal skepticism invoked in Griggs.

The Burden is on the petitioners; the burden has not

been met.

Petitioners’ advocacy of ‘‘quality’’ legal education

without any special consideration for racial minorities

is at this point in history similar to the position rejected

last month by the Court in Lau v. Nichols, 42 U.S.L.W.

4165 (Jan. 21, 1974) (No. 72-6250). There a unan-

23

imous Court held that the failure of the San Francisco

school system to provide English language instruction

to children of Chinese ancestry denied them equal

educational opportunity in violation of § 601 of the

Civil Rights Act of 1964, 42 U.S.C. §2000(d). The

core of that opinion is a recognition that equal educa-

tional opportunity does not come simply as a result

of objectively equal standards or curricula for all, re-

gardless of individual circumstances. Although the

obvious denial of equality in failing to provide means

of eliminating language barriers may at first glance

seem distinguishable from the failure to tailor admis-

sions procedures to the special circumstances of mi-

nority students, the difference is only one of subjective

sensitivity to the actual existence of discrimination.

The University of Washington Law School reason-

ably concluded that special procedures for minorities

were needed. It should not be stopped from doing

what San Francisco failed to do by not treating dif-

ferent students differently.

B. Proven Existence of Prior Racial Discrimination Is Not

an Essential Prerequisite to Affirmative Consideration

of Race.

Some of the briefs filed in this case urge that race

can only be considered where a prior history of race

discrimination is proven. That position is not only con-

trary to common sense—for it precludes voluntary

correction of deficiencies—it is inconsistent with the

precedents. A finding of prior racial discrimination

is necessary for a court to order affirmative racial

action, but that is not the issue here. It is not con-

tended that the University of Washington Law School

was required to consider race as one factor ir the ad-

missions process, rather the issue is whether the Con-

stitution permits the school so to decide. This

24

Court has noted the difference in Swann where it held

that racial balance could voluntarily be adopted as a

goal by local education authorities, but could not be

ordered by a federal court ‘‘absent a finding of con-

stitutional violation.’’ Swann, supra, 402 U.S. at 16.

Cases in the federal appellate courts make clear that

prior racial discrimination is not a necessary founda-

tion for voluntary state action seeking racial equality.

Porcelli v. Titus, 431 F.2d 1254 (3rd Cir. 1970), cert.

denied, 402 U.S. 944, (1971), is instructive. There

the Newark school authorities voluntarily adopted a

policy for promotion and selection of principals and

vice-principals which deliberately took into considera-

tion the race of the teacher. The court of appeals

rejected a constitutional challenge to that plan without

requiring a finding of prior racial discrimination in

faculty hiring or promotions. Indeed the district

court had explicitly declined the invitation of the in-

tervenors to find that prior ‘‘promotional examina-

tions were conducted in such a way as to discriminate

against Negroes.’’ Porcelli v. Titus, 302 F. Supp.

726, 736 (D.N.J. 1969).

The Second Circuit Court of Appeals has also noted

that a finding of prior racial discrimination is not es-

sential to voluntary state efforts to achieve equality.

In Norwalk CORE v. Norwalk Redevelopment Agency,

395 F.2d 920 (1968), that court reviewed a complaint

challenging urban renewal practices and held that the

alleged failure to consider relocation of minority resi-

dents required a full evidentiary hearing. There the

court said:

““What we have said may require classification by

race. That is something which the Constitution

usually forbids, not because it is inevitably an

impermissible classification, but because it is one

which usually, to our national shame, has been

25

drawn for the purpose of maintaining racial in-

equality. Where it is drawn for the purpose of

achieving equality it will be allowed, and to the

extent it is necessary to avoid unequal treatment

by race, it will be required.” 395 F.2d at 931-32

(footnotes omitted).

The relevant precedents recognize that voluntary

affirmative action to obtain racial equality is permissible

even if there has been no finding of prior racial

discrimination.’

C. It Is Not Necessary To Draw the Classification on the

Basis of Cultural, Educational or Economic Deprivation.

It has been suggested that the admissions program

in question might be valid if cultural, economic or

educational deprivation rather than race was used as

the identifying factor for special consideration. The

suggestion is not persuasive.

The problem addressed by the respondents was one

of racial imbalance. That problem could be met only

through considerations of race. But race was only

a starting point and not the dispositive factor resulting

in automatic admission. Race may have identified

those applicants justifying special evaluation, but

ability to perform in law school and contribution to

the school and the community were the determining

considerations.

The practical impossibility of using educational,

cultural or economic deprivation as the factor indi-

®It cannot be assumed that no prior racial discrimination ex-

isted at the University of Washington Law School. The record

here is inadequate to support that or a contrary conclusion. We

are informed by an associate dean of the University of Washing-

ton Law School that of the 3,812 students graduated between 1901

and 1970, 12 were black. That statistic could itself **prove’’

discrimination in other contexts. Cf. Turner v. Fouche, 396 U.S.

346 (1970).

26

eating special evaluation was recognized by the trial

court itself:

‘“‘The way I looked at the evidence in this case

was that to take a thousand Afro-American stu-

dents and determine all that bas happened to each

one and then make a separate finding as to each

one as to whether he was deprived in his child-

hood would be a very burdensome task; so that as

I see it, the admissions committee just took, for

example, the Black students and said these will

be considered separately by the law school and

by the professor interested in that program, and

it was assumed that every Black student was a de-

prived person.”’ (R. 00555).

Moreover, even if the administrative burdens could _

be overcome, the limited facilities and resources avail-

able for legal education prevent meaningful attempts

to meet the problems of all cultural, economic or edu-

cational deprivation. See, O’Neil, supra, at 746-47.

The law school chose to attack one area of recognized

educational inequality. It should not be constitu-

tionally restrained because it did not pick some other

area or quixotically try to eliminate all educational

inequality.

Ill, REVERS*“i. OF THE DECISION BELOW WOULD IMPERIL

THE VIABILITY OF AFFIRMATIVE ACTION PROGRAMS.

It has been suggested that the decision below can be

reversed without impairing other ‘‘affirmative action”’

programs. We disagree. In our judgment a re-

versal by this Court would jeopardize the vitality of

school integration plans, Title VII employment pro-

grams, and other forms of affirmative action. Equally

important, reversal here could lead to increased ju-

dicial dependence on the deceptively difficult distinc-

tion of de jure-de facto discrimination.

Oa ta int inact ks

EE Rn oe i lh ts

27

Elimination of racial discrimination nationwide—

root and branch—is a hard task. In retrospect the

early cases now seem simple and obvious. But elimi-

nation of facially discriminatory laws, as this Court

well knows, did not produce overnight equality. In-

deed more than fifteen years after Brown, desegrega-

tion of public schools still had not been achieved. De-

spite this Court’s imperative in Alexander v. Holmes

County Board of Education, 396 U.S. 19 (1969), the

job remains far from finished. This Court has wit-

nessed the evasive devices of ‘‘freedom of choice.’’

Green v. County School Board, 391 U.S. 430 (1968),

‘local control,’’ Wright v. Council of City of Em-

porta, 407 U.S. 451 (1972), and “‘boundary adjustment

by states’’, United States v. Scotland Neck City Bd.

of Ed., 407 U.S. 484 (1972). The invocation of

‘‘qualifications’’ and ‘‘objective testing’’ has also been

considered. Griggs, supra. The ultimate lesson of

history is clear: elimination of racial discrimination

and achievement of true equality is a hard job. The

modes of masking discrimination are subtle and elu-

sive. Implementing a ‘‘plan that promises realistic-

ally to work, and promises realistically to work now,’’

Green, supra, at 439, frequently requires consideration

of race—not just in school desegregation cases, but in

other areas as well.

The experience of federal officials in attempting to

eliminate job discrimination is typical. Congress tried

to deal with the problem in Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000(e) et seg. Prac-

tical implementation proved what we already know—

a simple proscription on racial discrimination was not

enough. Executive Orders were issued requiring ‘‘af-

firmative action.’”’ E.g., Ex. Ord. 11246, 30 Fed. Reg.

12319, as amended (1965). This concept subsequently

took the form of commitments to obtain percentages

of minority employees within a range.

Those goals necessarily involved affirmative considera-

tion of the race of the applicant. See, ¢.g., Contractors

Associatiton of Eastern Pa. vy. Secretary of Labor, 442

F.2d 159 (3rd Cir.), cert. denied, 404 U.S. 854 (1971).

Realistic, workable affirmative action programs must

be able to take race into account. At some point or

other, existing programs do use race. Forcing all state-

supported affirmative action programs to be rigidly

‘“‘eolor-blind’’ can only have one of three undesirable

results: (1) the programs cannot function; (2) the

programs will be limited to the South and other areas

where past discrimination can be judicially “‘proven;’’

or (3) courts and other government officials will resort

to self-deceptive labels or procedures to insulate their

actions from judicial invalidation. None of these re

sults, we submit, is acceptable.

A generation ago, in Missouri ex rel Gaines v.

Canada, 305 U.8. 337, 351 (1938)—a decision viewed

by many as a turning point in civil rights adjudica-

tions—this Court indicated segregated legal education

had no place in American society. Twelve years later

that indication became clear law and the Court held

in Sweatt v. Painter that ‘“‘white only” law schools

were unconstitutional. Now, twenty-four years after

Sweatt, legal education remains to a high degree open

only to the privileged majority. History, experience

and this record show that without special admissions

programs such as that under review we will not likely

achieve equal legal educational opportunities for racial

minorities. The promise of Sweatt is just now being

fulfilled by Washington and the other law schools that

have chosen to recognize past inequality and do some-

thing affirmatively about it. That promise should not

be broken. The decision below should be affirmed.

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

Roswett B. Perkins

Debevoise, Plimpton,

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New York, New York 10017

Kenweru C. Bass, III

11160 Saffold Wa

Reston, Virginia

Civil Rights Under Law