Petition — DiLeo v. Board of Regents of the University of Colorado

2

“y ceueata’

FILED

NOV 18 1978

Iu the

ROSAK, 2R_OLERE

Supreme Court of the United Sue senna

APRIL TERM, 1979

No. . 78-793

PHILIP F. DiLEO,

Petitioner

THE BOARD OF REGENTS OF

THE UNIVERSITY OF COLORADO, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COLORADO SUPREME COURT

GerASH & Sprincer, P.C.

Scott H. Robinson

Jeffrey A. Springer

Suite 2317, 1700 Broadway

Denver, CO 80290

Telephone: (303) 839-1888

Counsel for Petitioner

November 1978.

INDEX

OPINION BELOW _.........-.

JURISDICTION ...................

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......

STATEMENT OF THE CASE ....

REASONS FOR GRANTING THE WRIT

1. The Judgment and Opinion of the Colorado

Supreme Court is Contrary to the Constitution

of the United States of America and is not in

Accord with the Decisions of this Honorable

Court, Including the Recent Ruling in

Bakke v. Regents of the University of California

The Lawfulness of DiLeo’s Exclusion

from the Program ...........

CONCLUSION ........ Gees Sine f

Appendix:

Page

Opinion of the Supreme Court of Colorado ........ App. A

Court’s Ruling on Defendants’ Motion

for Summary Judgment — 20... App. B

ii

CITATIONS

CASES: Page

Baker v. Carr,

369 U.S. 186, 82, S.Ct. 691, 7 L.Ed.2d 663 (1962) .. 8, 9

Bolling v. Sharpe,

347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ...... 15

Brown v. Board of Education,

347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 823 (1954) . 14

DeFunis v. Odegaard,

416 U.S. 312, 94S.Ct. 1704, 40 L.Ed.2d 164 (1974) .. 13

Missouri ex rel. Gaines v. Canada,

305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938) 14

Palmer v. Thompson,

403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971) .. 13

Plessy v. Ferguson,

163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed, 256 (1896) ... 14

Regents of the University of California v, Bakke,

° sack , 98 S.Ct. 2733, 57 L.Ed.2d

750 (1978) | 7, 11, 13, 14, 15

Sweatt v. Painter,

339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950) ...... 14

Warth v. Seldin,

422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 2197

Yick Wo v. Hopkins,

118 U.S, 356, 6 S.Ct. 1064, 30 L.Ed.2d 220 (1886) ... 14

MISCELLANEOUS:

United States Code,

eS

mre ar cs

42 U.S.C. §2000d (Title VI, 1964

Civil Rights Act §601) .o..ccccccccscssssescssserenneenece 2

In the

Supreme Court of the United States

APRIL TERM, 1979

| SR

PHILIP F. DiLEO,

Petitioner

v.

THE BOARD OF REGENTS OF

THE UNIVERSITY OF COLORADO, et. al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COLORADO SUPREME COURT

The petitioner, PHILIP F, DiLEO, prays that a writ

of certiorari issue to review the judgment and opinion of

the Colorado Supreme Court entered in this proceeding

on August 28, 1978,

OPINION BELOW

The opinion of the Colorado Supreme Court in this

case, as yet unreported, appears as Appendix A hereto,

infra. The opinion of the trial court, The District Court in

and for the County of Boulder, State of Colorado, is un-

reported, and appears as Appendix B hereto, infra.

JURISDICTION

The opinion and judgment of the Colorado Supreme

Court was entered on August 28, 1978. This Petition for

Certiorari was timely filed within ninety days from the

date aforesaid. The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(8).

2

QUESTIONS PRESENTED

The petitioner, Philip F. DiLeo, filed suit against the

University of Colorado seeking, inter alia, a judgment estab-

lishing his eligibility for consideration for admission to the

University of Colorado Law School under a “Special Aca-

demic Assistance Program” administered by the law school.

The questions presented for review are:

1, Whether an applicant for admission to a State-

funded school of law who seeks consideration for admission

under a special admissions program and whose is excluded

from such consideration solely on the basis of his race has

standing to challenge the constitutionality of his exclusion?

2. Whether §601 of Title VI of the 1964 Civil Rights

Act (42 U.S.C. §2000d) or the Equal Protection clause of

the Fourteenth Amendment permit the summary exclusion

of a law school applicant from consideration for admission

under a special program for culturally, educationally, and

economically disadvantaged individuals, solely on the

grounds of race?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment IV:

“No State shall . . . deny to any person within its

jurisdiction the equal protection of the laws.”

United States Code, Title 42:

Ҥ2000d No person in the United States shall, on the

ground of race, color, or national origin, be excluded

from participation in, be denied the benefits of, or be

subjected to discrimination under any program or

activity receiving Federal financial assistance.”

3

STATEMENT OF THE CASE

Philip DiLeo sought to be admitted to the University

of Colorado School of Law in 1973 and 1974 through a

program the University entitled the “Special Academic

Assistance Program.” The program was established to assist

applicants who appeared to have the intellectual ability to

graduate from law school, but who otherwise would not

be eligible for admission under normal standards due to

their deprived educational and cultural backgrounds.

According to the rules of the law school defining the

program, it was designed:

To identify prospective law students who appear to

have the intellectual ability to graduate from this law

school but would not otherwise be eligible for ad-

mission under normal admission standards, and who

are members of identifiable groups which have not had

adequate educational and cultural opportunities avail-

able to them and which are seriously underrepresented

in the legal profession, It is understood that Negroes,

Mexican-Americans and American Indians are such

groups, members of which may be expected to consti-

tute most, if not all, the participants in this program.

It is not intended, however, to preclude the participa-

tion by members of other identifiable groups which

are shown to fit within the standards set forth in the

first sentence of this subsection.”

In both of the years that Philip DiLeo applied for

admission under the Special Academic Assistance Program,

his application was rejected due solely to the fact that he

was not a member of a designated “identifiable group”

which was educationally or culturally deprived and “se-

riously underrepresented in the legal profession”. At the

time of Philip DiLeo’s requests for consideration, an appli-

4

cant had to be of Black, Mexican-American, or Aimerican-

Indian heritage to be considered a member of an “iden-

tifiable group” for admission consideration under the Spe-

cial Academic Assistance Program,

As a result solely of his not being Black, Mexican-

American, or Indian, Philip DiLeo .was completely fore-

closed from consideration for admission under the Special

Academic Assistance Program despite his fully demonstrat-

ing his status as an applicant who had the intellectual abil-

ity to graduate but whose eligibility for admission under

general admissions standards was hampered by the inad-

equate educational and cultural opportunities which had

been available to him throughout his formative years.

Specifically, Philip DiLeo established in his applica-

tion for consideration under the Special Academic Assis-

tance Program and in uncontroverted allegations in his

Complaint that he grew up in a slum area of New York

City denominated as “Little Italy”; that as he grew up his

family was supported by his father who was employed as

a janitor and who earned $50.00 per week; that the DiLeos

were poverty stricken to the point that the family of six

shared a three-bedroom flat which rented for $30.00 per

month and which had no hot water and no bathroom fa-

cilities; that DiLeo’s parents spoke only broken English;

that Philip DiLeo read his first book only when he was in

the sixth grade; and that his admission to undergraduate

studies came about only through his outstanding individual

efforts while enrolled in a free airplane mechanic voca-

tional school located in New York City.

Philip DiLeo further demonstrated in support of his

consideration for admission through the Special Academic

Assistance Program that, although his undergraduate

course studies were initially hindered by the difficulties

he had in adjusting to an academic and social atmosphere

markedly different from his deprived background, he was

5

nevertheless able to successfully complete his undergradu-

ate studies and graduate with a respectable grade point

average which had steadily risen throughout his studies.

It was uncontested that, although Philip DiLeo would

not have been admitted under the general admissions

standards in effect in 1978 and 1974, had he;been consid-

ered under the Special Academic Assistance Progra:n he

would have been eligible for admission and might have

been admitted inasmuch as nine applicants whose “predic-

tion” scores indicated that they were less qualified than

DiLeo were not only considered for admission under the

special program but actually were offered admission into

the law school under the auspices of the Special Academic

Assistance Program,

Upon the rejection of his application for consideration

for eligibility in the Special Academic Assistance Program

in 1974, DiLeo brought this action challenging his sum-

mary exclusion from the program on the basis of race.

DiLeo contended that he was entitled to be considered for

admission under this program for culturally and educa-

tionally disadvantaged applicants without regaid to race

or ethnic heritage.

The defendant law school moved for summary judg-

ment on the grounds that the operation of the Special

Academic Assistance Program to the complete exclusion

from consideration of DiLeo was constitutional and did not

constitute a denial of equal protection. Specifically, the

law school asserted that the Special Academic Assistance

Program served a substantial State interest in making

preferential admission into the school available to indi-

viduals from culturally and educationally deprived back-

grounds, to thus graduate competent lawyers who were

members of groups the school determined were “seriously

underrepresented” in the legal profession,

6

In seeking summary judgment, the law school ex-

pressly delineated four rationales in support of the claimed

State interest in the operation of the program along racial

lines:

(1) that minority attorneys would be better able to

satisfy the needs of minority clients; -

(2) that an increase in minority attorneys would iessen

a perceived alienation by the populace towards the legal

system;

(3) that minority attorneys would serve as important

rdle models; and

(4) that increasing the number of minority law stu-

dents would necessarily enrich the educational experience

of all students.

In addition, the law school urged that, if the trial

court were to hold the program unconstitutional, it should

do nothing more than simply return DiLeo’s application

to the school for reconsideration, presumably in the ab-

sence of any special program for disadvantaged applicants

such as DiLeo.

In ruling on the summary judgment motion, the trial

court assumed as true that DiLeo was not eligible for ad-

mission under general admission standards, and that he

indeed satisfied the requirements for inclusion within the

program through his membership in an identifiable group

which lacked educational and cultural opportunities and

which was seriously underrepresented in the legal profes-

sion. The trial court further assumed as true that DiLeo

would have heen admitted into law school had he been

considered for admission through the Special Academic

Assistance Program by virtue of the inclusion of “Italian-

Americans” as an “identifiable group” for the purposes

of the program. (See Appendix B)

7

The trial court then ruled that the only issue Philip

DiLeo could raise was whether the exclusion of Italian

Americans as a group whose members were eligible for con-

sideration under the Special Academic Assistance Program

was arbitrary and capricious, ruling that this group exclus-

ion was neither. (Appendix B).

On appeal, the Colorado Supreme Court affirmed the

trial court, with one Justice dissenting. (Appendix A) The

Colorado Supreme Court held that DiLeo lacked standing

to contest his exclusion from the Special Academic Assis-

tance Program despite his demonstrating that he was denied

consideration for admission under the program solely on

the grounds of race, while other applicants similarly situ-

ated in terms of qualifications and disadvantaged back-

ground were considered under the program and were ac-

tually offered admission into the law school.

In so holding, the Colorado Supreme Court consid-

ered the opinions of this Honorable Court entered in Re-

gents of the University of California v. Bakke, ...... US.

Sse , 98 S. Ct. 2733, 57 L.Ed.2d 750 (1978), and con-

cluded that Bakke neither mandated DiLeo’s admission

into law school nor provided him standing to contest his

racially-based exclusion from the Special Academic Assis-

tance Program.

Justice Erickson of the Colorado Supreme Court dis-

sented, and in a separate opinion, indicated that he would

rule that DiLeo not only had the necessary standing to con-

test his exclusion from the program, but also that the ex-

clusion of DiLeo from the Special Academic Assistance

Program was unconstitutional.

8

REASUNS FOR GRANTING THE WRIT

1. THE JUDGMENT AND OPINION OF THE COL-

ORADO SUPREME COURT IS CONTRARY TO

THE CONSTITUTION OF THE UNITED STATES

OF AMERICA AND IS NOT IN ACCORD WITH

THE DECISIONS OF THIS HONORABLE

COURT, INCLUDING THE RECENT RULING

IN BAKKE V. REGENTS OF THE UNIVERSITY

OF CALIFORNIA.

STANDING

Philip DiLeo clearly has the requisite standing to

challenge his racially-based exclusion from consideration

for admission under the Special Academic Assistance Pro-

gram of the University of Colorado School of Law.

The “gist of the question of standing” is whether a

particular litigant has “such*a personal stake in the out-

come of the controversy as to assure that concrete adver-

seness which sharpens the presentation of issues upon which

the court so largely depends for illumination of difficult

questions.”” Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7

L.Ed.2d 663 (1962). The history of proceedings below and

the nature of this controversy demonstrate irrefutably

Philip DiLeo’s substantial interest in the outcome of his

legal battle to gain admission to the law school.

Philip DiLeo twice sought admission to the Univer-

sity of Colorado Law School through the Special Academic

Assistance Program administered by the school. This pro-

gram had as its specific purpose the preferred admission

of prospective law students who had the intellectual abil-

ities to graduate but whose eligibility for admission was

hindered by the inadequate educational and cultural op-

portunities which had been made available to them. Philip

DiLeo’s request for consideration for admission under this

9

program was twice denied by the defendant law school,

and following those denials, he filed the present lawsuit

seeking judicial intervention in assistance of his endeavor

to become a lawyer. His resolve to become an attorney

remains unabated. }

The defendant law school has steadfastly opposed in an

actively adverse fashion DiLeo’s attempts to gain admission

into the school. These countervailing efforts were expended

throughout the proceedings below in support of the school’s

earlier resolute determination that DiLeo was not eligible

for admission to the school under the special admissions

program. At no time has the law school faltered in its

position that Philip DiLeo is not eligible for admission.

There can be little question that the parties to this con-

troversy were and are so appropriately adverse as to ensure

that the issues presented will be satisfactorily honed for

judicial consideration. See Baker v. Carr, supra.

The defendants moved for summary judgment on

several occasions, and numerous briefs were filed with the

trial court pertaining to the motions for summary judg-

ment. In entering summary judgment, the trial court in

fact assumed that DiLeo was a member of an identifiable

group which had not had adequate educational and cultural

opportunities available to it and was seriously underrepre-

sented in the legal profession. The trial court further as-

sumed that, although DiLeo would not have been admitted

under general admissions standards, he would have been

admitted had his “group”, Italian-Americans, been desig-

nated by the law school as eligible for consideration under

the special program, and that he was denied the right to

apply under the special program solely because his group

was not so designated. In granting summary judgment,

however, the trial court concluded that the exclusion of

DiLeo’s “group” was within the lawful discretion of the

law school.

10

Initially, it must be noted that the formulation of the

Special Academic Assistance Program along group lines

necessarily engendered certain claims by DiLeo concerning

Italian-Americans, as to “group” educational and cultural

deprivation and representation within the legal profession.

The gravamen of DiLeo’s claim of unlawful discrimination,

however, is not that Italian-Americans are and have been

discriminated against unlawfully, but rather, that he, an

individual, has been denied the basic right to be consid-

ered as such. As all the Courts below conceded, Philip

DiLeo did demonstrate that he was situated similarly to

applicants within the “designated” racial or ethnic groups

as to his rising above an economically, educationally, and

socially disadvantaged background. This is and was un-

disputed.

What was controverted by the Colorado Courts, im-

plicitly by the trial judge and expressly by the Supreme

Court, was the scope of the judicial remedy available to

Philip DiLeo. DiLeo did and does not truly seek a declara-

tion that the Special Academic Assistance Program is un-

constitutional as a whole, and must be struck down in its

entirety. Rather, what he contests is the failure of the Uni-

versity of Colorado Law School to consider his application

for admission on equal terms with other applicants simi-

larly situated.

Philip DiLeo has standing by virtue of his intimate

personal stake in the outcome of these proceedings. It is

DiLeo whose opportunities for equal consideration have

been denied, and it is DiLeo, and not some hypothetical

candidate for general admission, whose complaint of un-

constitutional treatment is directed at that aspect of the

Special Academic Assistance Program which is unlawful:

the designation of eligible disadvantaged students by race

or ethnic heritage.

11

To argue that Philip DiLeo has no standing to contest

his personal exclusion from an otherwise lawful program

because of his race is to argue the absurd. What is uncon-

stitutional is not the existence of a program for disad-

vantaged applicants, but rather, the limitation of that pro-

gram to persons whose skin or surname entitles them to a

disturbing and unseemly presumption of competitive in-

adequacy.

Several rationales were offered by the Colorado Su-

reme Court in support of its conclusion that DiLeo lacked

standing. Initially, the court contrasted DiLeo with Allan

Bakke on the theory that “but for” the very existence of a

special admissions program, Bakke would have been ad-

mitted under general admissions procedures.

Although “but for” language does appear in the opin-

ion delivered by Justice Powell announcing the judgment

of the Court, see University of California Regents v. Bakke,

US. ......., 98 S.Ct. 2733, 57 L.Ed.2d 750 n.54 (1978),

reference to the history of the Bakke proceedings demon-

strates that in fact it was never established conclusively that

Bakke would have been admitted had there been no stu-

dent positions allocated to the special program. In any

event, however, as in Bakke, here illegal racial discrimina-

tion was definitely the “but for” cause of an individual’s

exclusion from equal participation in a State-supported pro-

gram. Bakke illustrates that it is insufficient to merely spec-

ulate that Philip DiLeo would not have been admitted had

he been considered on a constitutionally equal basis with

other applicants similarly situated.

The Colorado Supreme Court also expressed its con-

cern that DiLeo was asking them to assume the role of

educators through what they perceived to be a demand for

a complete judicial restructuring of admissions procedures.

This concern is illusory. All that Philip DiLeo requests,

12

and is entitled to, is a judicial determination that applica-

tions for admissien to the University of Colorado Law

School be administered in a racially neutral way, such that

applicants similarly situated are accorded similar treatment

without regard to race or ethnic background.

Even if an appellate court were to declare as uncon-

stitutional the entire Special Academic Assistance Program,

this would not deprive DiLeo of standing. DiLeo was not

accorded consideration for admission on an equal basis

with other candidates similarly situated, and he is entitled

to a judicial determination that this treatment was un-

lawful. The University of Colorado School of Law has

indicated a desire to assist intellectually capable individuals

who have been subjected to cultural, educational or eco-

nomical disadvantage in their efforts to enter law school

and become lawyers. Even if the present program is stricken

as a whole, it is reasonable to assume that the law school

may in the future implement a similar program redrawn

along racially-neutral lines, and Philip DiLeo’s interest in

such a program is manifest.

The argument that DiLeo's success in challenging the

program would leave him without remedy is a little bit

like claiming that a Black law school candidate who is pre-

cluded from consideration by virtue of his race has no

standing to contest such exclusion since a State has no legal

duty to open and operate a school of law for its citizens.

The Special Academic Assistance Program did and does

exist, and DiLeo did and does have a right to have his

application for admission considered on an equal basis

with other individuals similarly situated as to cultural de-

privation.

Indeed, to argue that DiLeo has no standing because

the iaw school might in the future choose not to offer any

special admissions program is analogous to claiming that

the Black residents of Jackson, Mississippi could not attack

13

the city’s operation of racially segregated swimming pools

because the city could choose later not to operate any swim-

ming pools at all. Obviously, it makes no sense to assert

that the victims of unlawful discrimination have no right

to challenge such discrimination merely because a possible

consequence of a successful challenge might be a retaliatory

response by the public entity which forecloses the very pro-

gram or facility sought to be utilized on an equal basis.

Compare Palmer v. Thompson, 403 U.S.217, 91 S.Ct. 1940,

29 L.Ed.2d 438 (1971).

The bottom line of standing is, as recently stated by

this Court, whether a particular litigant has a “personal

stake” in the outcome of a controversy. Warth v. Seldin,

422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 2197 (1975). As

pointed out by Justice Powell in Bakke, the appropriate

standing analysis is not whether the student candidate would

or would not have been admitted in the absence of a special

program, but rather whether, because of the race-conscious

operation of the program, an applicant was denicd the op-

portunity to compete equally with those similarly situated.

University of California Regents v. Bakke, ..... U.S. ..._,

98 S.Ct. 2733, 57 L.Ed.2d 750 n.14 (1978).

As things stand now, Philip DiLeo simply will not be

admitted to the University of Colorado d spite his uncon-

tested status as a culturally disadvantaged individual elig-

ible for special admissions consideration. In the event that

the race-conscious group eligibility aspect of the existing

Special Admissions Assistance Program is declared uncon-

stitutional, DiLeo will then have an equal opportunity for

future admission. DiLeo’s plight can well be contrasted with

the eventual outcome of Marco DeFunis’ campaign to enter

the legal profession. See DeFunis v. Odegaard, 416 U.S.

312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). It is one thing

to say that Marco DeFunis’ challenge to a racially discrim-

14

inatory admissions program was moot since he was about

to realize his ambition and graduate from law school. It

is another proposition altogether to assert that Philip DiLeo

has no personal interest in seeking a determination that his

unequal treatment was unconstitutional.

The Lawfulness of DiLeo’s Exclusion from The Program

This Honorable Court’s decision in Regents of The

University of California v. Bakke, supra, is dispositive. The

egalitarian ideal of a color-blind constitution is a concept

deeply imbued in the intellectual fabric of our democratic

society. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct.

1138, 41 L.Ed. 256 (1896) (Dissenting opinion of Justice

Harlan). Although this admirable ideology has often been

disregarded in practice, nevertheless the concept of the

“equal hand” is a principle fundamental to a just society.

See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30

L.Ed. 2d 220 (1886).

The past decisions of this Honorable Court have estab-

lished the unconstitutionality of racial criteria in the field

of education. Educational opportunities are to be made

available on equal terms to all regardless of race. Brown v.

Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.

823 (1954). A legal education must therefore be made

available on the same basis for all persons similarly situated.

Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed.

1114 (1950). See also Missouri ex rel. Gaines v. Canada,

305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938). Basic

to this concept of equal treatment of persons “similarly

situated” is the requirement that individual attributes and

capacities cletermine eligibility for a legal education. Simply

stated, this means that all individuals have a right to be

judged on their personai merit and not on their race or

ethnic descent. Social deprivation may well be an appropri-

ate factor to be considered in determining eligibility for law

15

school admission, and indeed this is precisely the enunciated

rationale of the Special Academic Assistance Program ad-

ministered by the University of Colorado School of Law.

Bakke requires the invalidation of the “group” criteria

involved in the challenged program here. As was pointed

out by Justice Erickson in his dissent to the opinion issued

by the Colorado Supreme Court, the admissions program

administered by the University of Colorado School of Law

is “essentially and fatally similar” to that struck down in

Bakke. The Colorado program creates a per se racial classi-

fication, which thus requires application of strict judicial

scrutiny. See University of California Board of Regents v.

Bakke, supra. See also Bolling v. Sharpe, 347 U.S. 497, 74

S.Ct. 693, 98 L.Ed. 884 (1954). As in Bakke, the purposes

sought to be furthered by the Colorado program can be pro-

moted by less onerous and racially-neutral means. And, as

in Bakke:

The fatal flaw in [the] preferential program is its

disregard of individual rights as guaranteed by the

Fourteenth Amendment. Shelley v. Kraemer, 334 U.S.

1, 22, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441

(1948). Such rights are not absolute. But when a

State’s distribution of benefits or imposition of burdens

hinges on the color of a person’s skin or ancestry, that

individual is entitled to a demonstration that the chal-

lenged classification is necessary to promote a substan-

tial interest. ;

Philip DiLeo would urge that, as in Bakke, the Uni-

versity of Colorado cannot demonstrate the necessity of

limiting preferential academic assistance to members of

delineated racial or ethnic groups.

16

CONCLUSION

This Petition for Certiorari presents issues of a critic-

ally important character. Bakke left open the lawfulness of

preferential admissions policies for disadvantaged appli-

cants administered in a racially-neutral manner. A great

many colleges and universities operate programs similar

to that in question here, and such programs receive many

applications submitted by deserving law school candidates

from disadvantaged backgrounds. The uncertainty con-

cerning special admissions programs necessarily attendant

to Bakke can be removed by the Court accepting this case

for review and rendering a much-needed decision.

Philip DiLeo has overcome myriad social injustices in

his efforts to better himself. He has managed to rise above

the cultural abyss that is “Little Italy” to the point that

he was able to obtain a college degree. Since 1973, he has

waged a heretofore unsuccessful battle for equal consider-

ation for admission to law school in furtherance of his

ambition to enter the practice of law. The decisions below

in effect have told Philip DiLeo that he may not contest

the unequal consideration his eligibility for law school

admission has received. This was unjust.

DiLeo has a great personal interest in having this

Petition granted. In addition, the issues raised herein are

of pressing contemporary concern. For the foregoing rea-

sons, this Petition for Writ of Certiorari should be granted.

Respectfully submitted,

GeraAsH & SprINGER, P.C.

Scott H. Robinson

Jeffrey A. Springer

Suite 2317, 1700 Broadway

Denver, CO 80290

Telephone: (303) 839-1888

Counsel for Petitioner

17

APPENDIX 1-A

IN THE SUPREME COURT

OF THE STATE OF COLORADO

NO. 27455

PHILIP F. DiLEO,

Plaintiff-Appellant,

v.

THE BOARD OF REGENTS OF

THE UNIVERSITY OF

COLORADO, FRED BETZ, SR.,

GERALDINE BEAN, DALE

ATKINS, ERIC W. SCHMIDT,

THOMAS S. MOON, JACK KENT

ANDERSON, RAPHAEL J.

MOSES, ROBERT M. GILBERT,

and BYRON JOHNSON, as

members of the Board of Regents

of the University of Colorado,

ROLAND C. RAUTENSTRAUS,

President of the University of

Colorado, COURTLAND H.

PETERSON, Dean of the University

of Colorado School of Law, JAMES

N. CORBRIDGE, JR., Vice-

Chancellor for the Academic Affairs

and member of the Committee on

Admissions, University of Colorado

School of Law, ALEX KUO,

Assistant Vice-Chancellor for

Academic Affairs, University of

Colorado, PEARL I. COLVIN,

J

18

Assistant Dean for Admissions and

Placement, University of Colorado

School of Law, and WILLIAM E.

RENTFRO, Director, Special

Academic Assistance Program,

University of Colorado School

of Law,

— ae

Defendants-Appellees.

Appeal from the District Court of Boulder County

Honorable David R. Torke, Acting District Court Judge

EN BANC RULING AFFIRMED

David J. Ternlund,

Attorney for Plaintiff-Appellant.

Richard A. Tharp,

Attorney for Defendants-Appellees.

Donald O. Kinonen

John W. Finley, Jr.

Brashich and Finley

Michael Blinick,

Attorneys for Amici Curiae, the Committee on

Academic Nondiscrimination and Integrity and

Mountain States Legal Foundation.

MR. CHIEF JUSTICE PRINGLE delivered the

Opinion of the Court.

This case involves a challenge to the constitutionality

of the Special Academic Assistance Program (S.A.A.P.) as

established and administered by the University of Colo-

rado School of Law.

The law school’s program is set forth in article 6 of

the Rules of the law school. Rule 1-6-2(c)ii establishes the

19

standards for eligibility for the program and reads in per-

tinent part as follows:

“(A] program designed to identify prospective law

students who appear to have the intellectual ability to

graduate from this law school but would not otherwise

be eligible for admission under normal admission stan-

dards, and who are members of identifiable groups

which have not had adequate educational and cultural

opportunities available to them and which are seriously

underrepresented in the legal profession. It is under-

stood that Negroes, Mexican-Americans and American

Indians are such groups, members of which may be

expected to constitute most, if not all, the participants

in this program. It is not intended, however, to pre-

clude participation by members of other identifiable

groups which are shown to fit within the standards set

forth in the first sentence of this subsection.” (Em-

phasis added).

Groups which meet the listed criteria are selected by

reviewing various materials, primarily census bureau data,

which reflect such information as median and per capita

income, education level and representation in the legal

profession. Both national and regional figures, when avail-

able, are reviewed. Regional figures in particular are used

in assessing representation in the legal profession.

Using this method of review, the law school deter-

mined in 1974 that Asian Americans and Italian Americans

did not fit the program's criteria, at that time. The group

of Italian Americans was defined as foreign born or native

born with one foreign born parent.

In 1975, it was determined that Cubans and Hawai-

ians were not to be included in the program but that

Puerto Ricans would be included.

20

Applicants for the S.A.A.P. are screened to determine

whether they are members of an eligible group. The

S.A.A.P. is a competitive admissions program for those

eligible and both subjective and objective criteria are used

in evaluating eligible applicants.

The approximate number of students to be admitted

is determined in advance, based on available facilities.

This predetermined nuihber of spaces is only filled if there

are qualified applicants available. We do not here deter-

mine whether this use of a predetermined number affects

the constitutionality of the program because we decide the

case on another issue.

Plaintiff DiLeo applied for admission to the law

school through the S.A.A.P. for the entering class of 1973

and subsequently for the envering class of 1974, In both

years, the application was rejected on the basis that he was

not a member of an identifiable group having inadequate

educational and cultural opportunities and seriously un-

derrepresented in the legal profession. Following these

two rejections, DiLco brought this action in the District

Court for the County of Boulder challenging the S.A.A.P.

The trial court in granting the law school’s motion for

summary judgment, held that DiLeo did not have standing

to challenge the constitutionality of the program itself

since if there were no S.A.A.P, he would not have been

admitted to the law school. The trial court, stating that

DiLeo could only challenge the exclusion of his group

from the program, also held that the law school had not

acted arbitrarily or capriciously in excluding the group of

which DiLeo was a member from eligibility in the program.

The case is now before us on appeal and we affirm

the trial court's ruling to the extent it holds that DiLeo’s

application was properly rejected for consideration in the

S.A.A.P.

21

The case before us presents a sensitive and complex

issue, an issue the resolution of which has important moral

and social consequences. The law school has established

the S.A.A.P. to increase minority enrollment and minority

representation in the legal community, Similar programs

have been established by colleges and universities through-

out the nation to remedy the effects of past societal dis-

crimination,

DiLeo claims that the program as established and op-

erated by the School of Law of the University of Colorado

is unconstitutional, He argues that while a program for

the disadvantaged is itself constitutional, the S.A.A.P. as

administered by the law school is unconstitutional in that

it operates to exclude persons solely on the basis of their

race or ethnic background, Specifically, he argues that he

being of Italian American heritage and a product of slum

schools, was educationally, socially and economically dis-

advantaged and should have been considered an eligible

applicant for the S.A.A.P.

The essence of Plaintiff's Fourteenth Amendment ar-

gument is that the law school violated his right to equal

protection of the laws by denying him admission to the

law school while admitting applicants who he claims were

similarly situated.

While this case was pending before us, the United

States Supreme Court issued its decision in Regents of the

University of California v. Bakke,...* US. , 98S. Ct.

2733, ........ L.Ed.2d ....... (1978). In Bakke, the Court re-

viewed a challenge to the validity of a medical school’s

special admissions program. The result of this review was

that the Medical School of the University of California at

Davis was ordered to admit Alan Bakke to the school.

Alan Bakke, a white male, alleged that the special ad-

missions program operated to exclude him on the basis

of his race in violation of the Equal Protection Clause of

22

the Fourteenth Amendment of the United States Consti-

tution, a provision of the California Constitution, and §601

et seq. of Title VI of the Civil Rights Act of 1964. The

Bakke case reached the Court in a posture where Alan

Bakke was considered qualified for regular admission and

would have been admitted to the medical school but for

the special admissions program. |

There was no majority opinion of the Court in the

Bakke case. Only five of the Justices actually addressed the

constitutional issue. Four of these Justices (Brennan, White,

Marshall and Blackmun) found that the special admissions

program did not violate the Constitution. These Justices

concluded “that Davis’ goal of admitting minority students

disadvantaged by the effects of past discrimination is suf-

ficiently important to justify use of race-conscious admis-

sions criteria.” ... U.S, at , 98 S.Ct, at 2789,

L.Ed.2d at . (1978),

Mr. Justice Powell, who announced the judgment of

the Court, found that the special admissions program served

a compelling state interest’ but that a racial “quota” was not

‘Powell found that the attainment of a diverse student body was

compelling in the context of a university's admissions program.

The United States Supreme Court has previously recognized the

importance of this goal. In Sweatt v, Painter, 389 U.S. 629, 634,

70 S.Ct, 840, 850, 94 L.Ed. 1114, 1119 (1950), that Court stated;

“Moreover, 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 prac-

tice, cannot be effective in isolation 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 vacuum, removed from the interplay of views with

which the law is concerned. . . . [W]ith such a substantial and

significant segment of society excluded. . . . we cannot con-

clude that the education offered . .. is substantially equal. ...”

Accord, Swann v. Charlotte-Mecklenburg Board of Education, 402

US. 1, 91 S.Ct, 1267, 28 L.Ed.2d 554 (1971); DeFunis v. Odegaard,

82 Wash. 2d 11, 507 P.2d 1169 (1978), vacated as moot, 416 U.S.

$12, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

—

23

necessary to achieve this interest. However, he did deter-

mine that the competitive consideration of race and ethnic

origin might properly be a part of an admissions program.

Mr. Justice Stevens, in an opinion joined by Chief

Justice Burger, Mr. Justice Stewart and Mr. Justice Rehn-

quist, determined that Title VI applied and that Bakke

was excluded from the medical school in violation of ‘Title

VI. These Justices did not reach the constitutional issue

of whether race can ever be a factor in an admissions policy.

Whether in the absence of Title VI considerations, or

given an amended version of Title VI, any of these Justices

might join the Fourteenth Amendment conclusions of

Justices Brennan, Marshall, White and Blackmun is yet to

be decided,

The law school asserts that the decision in Bakke does

not mandate DiLeo’s admission to law school. We agree.

The threshold question to be addressed is whether

DiLeo has standing to challenge the constitutionality of the

S.A.A.P. The general rule as developed in Colorado is that

a person to have standing to challenge the constitutionality

of state actions must be personally adversely affected by

the particular constitutional defect asserted. E.g., People v.

Stage, ....... Colo. ......,. 575 P.2d 423 (1978); Garcia v.

City of Pueblo, 176 Colo. 96, 489 P.2d 200 (1971) ; People

v. Stark and Peacock, 157 Colo. 59, 400 P.2d 923 (1965).

The following language from McKinley v, Dunn, 141 Colo.

487, 492, 349 P.2d 139, 142 (1960) is instructive in this

regard:

“We follow the generally accepted rule that constitu-

tionality is to be considered only in the light of the

standing of the party who seeks to raise the question

and that a person may challenge the constitutionally

of a statute only when and as far as it is being or is

about to be applied to his disadvantage. Cross v. Bilett,

122 Colo, 278, 221 P.2d 923.” (Emphasis added).

24

The trial court’s finding that DiLeo had no standing

was based on its view that in effect there would be no rem-

edy available for DiLeo even if the court agreed with his

allegations of unconstitutionality. We agree.

Initially we note that Philip DiLeo is not in a similar

position to Alan Bakke in that “but for the existence of

the special program” Bakke would have been entitled to

the educational benefit of admission to medical school. It

is clear from the record that DiLeo would not have been

eligible for admission to the University of Colorado School

of Law under normal admissions standards.’ Thus even if

the S.A.A.P. were unconstitutional in respect to an appli-

cant who like Bakke would have been admitted if there were

no special admissions program, DiLeo is not situated so

as to make that challenge.

In fact, DiLeo does not want the special admissions

program to be declared unconstitutional. Rather, he wants

it to be redrawn along non-racial lines. The program as

established by the law school is drawn along group lines.

For example, one of the principal criteria of the program

is that the applicant be a member of a group which is un-

derrepresented in the legal community. DiLeo asks us to

declare unconstitutional this group aspect of the program.

But this would be in effect to strike down the program as

presently constituted. It is not the proper function of a

court to establish an admission program for a university,

?In fact it is not clear that even if DiLeo had been considered eli-

gible for the S.A.A.P. he would have been admitted. In 1973, of

59 applicants who were offered admission through the S.A.A.P.,

50 had higher prediction indexes than DiLeo and 24 applicants

who were members of eligible groups and had higher prediction

indexes than DiLeo were denied admission. (A prediction index

is a composite factor which is derived by combining in a mathe-

matical formula (1) the applicant’s grade point average, (2) a

quality rating of the applicant’s degree school, (3) the applicant's

LSAT score, and (4) the applicant's writing ability score.)

25

nor to rewrite the program according to its own notions.

Thus the import of DiLeo’s argument would be to leave

the university with no special admissions program. Since

DiLeo would not be admitted through the regular admis-

sions program, a successful challenge to the program’s un-

constitutionality would leave DiLeo’s position unchanged.

Our holding in Lee v. People, 170 Colo. 268, 460 P.2d

796, (1969), is applicable at this point. In Lee we noted

that the defendant had no standing to raise an equal pro-

tection argument because the “[djefendant could not bene-

fit in any way by such a ruling here and, therefore, is in

no position to raise the issue in this case.” 170 Colo. at 273,

460 P.2d at 799. DiLeo is in this same position. He cannot

benefit from a ruling that the special admissions program

is unconstitutional; therefore, he has no standing to raise

that issue.

We affirm the ruling of the trial court.

MR. JUSTICE ERICKSON dissents.

MR. JUSTICE CARRIGAN does not participate.

NO. 27455

DiLEO v. BOARD OF REGENTS, UNIVERSITY

OF COLORADO

MR. JUSTICE ERICKSON dissenting:

I respectfully dissent. In my view, the record demon-

strates an injury to DiLeo that is likely to be redressed by

a favorable decision on his behalf. Regents of the Univers-

ity of California v. Bakke, _...... US. ......... 98 S.Ct. 2733,

2743-44 (n. 14), ........ L.Ed.2d ........ (1978) (Powell, J.);

Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45

L.Ed.2d 343 (1975).

Guided by Bakke, which admittedly reflects diverse

and divergent views of the Justices of the Supreme Court

26

of the United States and provides definitive guidelines in

only the most ephermeral sense, I would hold that the

University of Colorado School of Law Special Academic

Assistance Program (S.A.A.P.) is unconstitutional.

I.

Standing

The trial court ruling which we are called upon to

review assumed (1) DiLeo was denied admission because

his group was not designated, and (2) had his group been

designated, he would have been admitted as a student.

The trial court did not rule upon the constitutionality

of the S.A.A.P. on the theory that even if the program were

unconstitutional, DiLeo lacked standing to challenge the

program because he was not qualified for admission under

the general admission standards.

As the majority opinion points out, this case differs

from the Bakke fact situation in that Bakke would have

been admitted but for the special admissions program at

the University of California at Davis Medical School. Here,

DiLeo claims that he was entitled to be considered for ad-

mission under the S.A.A.P. Under Law School Rule

106-2(c) (ii), students are admitted to the S.A.A.P. who

are members of identifiable groups (1) which are seriously

underrepresented in the legal profession and (2) which

have not had adequate educational and cultural opportun-

ities available to them. In both 1973 and 1974, the years

when DiLeo applied for admission under S.A.A.P., 29

places in the law class of 175 were allocated in advance to

the program. Only those who were Mexican-Americans,

Black-Americans, and American Indians were considered

for those places in 1973. On August 1, 1974, Puerto Rican-

Americans were added, but Asian-Americans and Italian-

Americans were declared ineligible.

a

27

DiLeo asserts that he comes from a background which

is characterized by indicia of deprivation as severe as that

faced by the designated minorities. Specifically, he has

established that he grew up in New York's “Little Italy,”

a slum inflicted with crime, drugs and violence; that he

was raised by uneducated, working class parents; and that,

through his secondary education, he attended slum schools

beset by ignorance and indifference. As such, he claims that

he must surmount difficulties as great as those faced by

those minorities given preference.

DiLeo is not asserting that it is unconstitutional for

the Law School to have a S.A.A.P. to aid disadvantaged

students, but claims he is disadvantaged and that his back-

ground qualifies him for consideration. As such, he asserts

that he would be eligible for admission under the S.A.A.P.

if non-racial criteria were applied, and that he has been

denied meaningful participation in that program because

of his race. The majority points out, at note 2, that:

“In 1973, of 59 applicants who were offered ad-

mission through the S.A.A.P., 50 had higher predic-

tion indexes than DiLeo and 24 applicants who were

members of eligible groups and had higher prediction

indexes than DiLeo were denied admission.”

From this, the majority draws the conclusion that, even

if DiLeo were considered in the special admissions program,

he would not have been accepted by the Law School.

The majority’s reference to this finding indicates that

it misapprehends the import of Bakke. Nine persons who

were participants in a program, from which DiLeo was

excluded on the basis of his race, were less qualified and

were not only considered, but also were offered admission

to the Law School. Thus, it is unnecessary that DiLeo

claim that he would have been admitted under the general

admissions program and in the absence of the University

28 .

of Colorado’s S.A.A.P. It is sufficient for purposes of stand-

ing that DiLeo establish that he was not considered as a

disadvantaged student under the S.A.A.P. because he was

not a member of a designated minority.

Moreover, I am persuaded that once it was shown

that DiLeo was excluded from the S.A.A.P. because of his

race, the burden of proof shifted to the University of Colo-

rado to demonstrate that DiLeo would not have been ac-

cepted if he had been considered for admission under the

S.A.A.P. In short, the University would have to demonstrate

that DiLeo would not have been considered for admission

under the S.A.A.P. even if that program did not use race

as a decisive factor. Board of Regents v. Bakke, 18 Cal.3d

34, 553 P.2d 1152, 1172 (1976) ; Franks v. Bowman Trans-

portation Co., 424 U.S. 747, 773 (n. 32), 96 S.Ct. 1251,

47 L.Ed.2d 444 (1975).

Il.

Suspect Classification

The issue common to both Bakke and this case is

whether a racial classification which is intended to assist

minorities, but which has the effect of depriving those not

so classified of benefits they would enjoy but for their race,

invokes the “compelling state interest” or only an “im-

portant governmental objectives” test. Only the Supreme

Court of the United States can pronounce the final words

on that question. See Oregon v. Hass, 420 U.S. 714, 95

S.Ct. 1215, 43 L.Ed.2d 570 (1975). A majority of the

Justices of that Court have yet to pronounce that word.

See Bakke, supra at 2756-60, 64 (Powell, J.) ; id. at 2783-84

(Brennan, White, Marshall, and Blackmun, J.J.) (concur-

ring in part and dissenting in part). However, at the present

time, in order to meet the requirements set forth by Justice

Powell, we must assume that the University must demon-

Oa tts i “

a ee

29

strate a compelling state interest in maintaining its pro-

gram and that no less restrictive method will effect its

purpose.

The University cannot meet that burden in this case.

The S.A.A.P. administered by the Law School is essentially

and fatally similar to that established by the Medical School

at Davis. The crucial fact is that both Bakke and DiLeo

were denied meaningful participation in at least some

major facet of the admissions program solely on the basis

of their race.

Once it has been demonstrated that the S.A.A.P., as

administered, created a per se racial classification, Bakke

requires that the strict scrutiny test be applied. If the pro-

gram affects a fundamental interest or employs a suspect

classification, strict scrutiny is invoked, and the program

can be upheld only if it is necessary to promote a compelling

state interest, and that interest cannot be promoted by less

onerous means. E.g., Dunn v. Blumstein, 405 U.S. 330, 92

S.Ct. 995, 31 L.Ed.2d 274 (1972); Loving v. Virginia,

388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Mc-

Laughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d

222 (1964).

Race is a key to admission under S.A.A.P. because

only members of specially selected racial groups are en-

titled to admission at the lower standards. Race is conclu-

sive for purposes of excluding certain applicants, such as

DiLeo, from participation. While students are not being

admitted solely on the basis of race, it is clear that some po-

tential students, including DiLeo, have been excluded

from participation in the S.A.A.P. solely on that basis. The

fact, relied upon by the majority, that §.A.A.P. applicants

found to belong to the appropriate racial groups must

compete among themselves for available positions and that

several objective factors are considered in the admission

process is irrelevant to DiLeo’s constitutional challenge.

/

30

DiLeo does not challenge the establishment of a pro-

gram to give preference to disadvantaged individuals. Nor

does he challenge the University’s reliance on its belief that

the fact that an individual is a member of an identifiable, dis-

advantaged group makes it more probable that a member

of that group is disadvantaged. Nothing in the Bakke opin-

ion prevents the Law School from making that judgment.

Justice Powell makes clear, however, that the University

must define those groups it designates as disadvantaged

in racially neutral terms. That is, when the Law School des-

ignates a minority group, the members of which it wishes to

prefer, it may not designate that group by reference to its

racial characterists.

For the reasons stated herein, DiLeo, in my opinion,

has standing to challenge the S.A.A.P. S.A.A.P. creates a

per se racial classification which is prohibited and must

fail because of the limitations imposed by Bakke v. Regents

of the University of California, supra.

eS eee

31

APPENDIX 1-B

IN THE DISTRICT COURT

IN AND FOR THE COUNTY OF BOULDER

STATE OF COLORADO

Civil Action No. 75-2280

PHILIP DiLEO,

Plaintiff Court's Ruling

vs. on Defendants’

THE BOARD OF REGENTS OF } Motion For

THE UNIVERSITY OF Summary

COLORADO, et al., Judgment

Defendants ; |

Philip DiLeo applied for admission to the freshman

class of the University of Colorado School of Law to enter

in the Fall Semester, 1973. His application was denied.

DiLeo’s suit for damages and for an injunction was

filed in 1975. The defendants’ Motion for Summary Judg-

ment attacks all issues in that suit and is here determined.

FACTS

For the purpose of determining. defendants’ Motion

for Summary Judgment, the following facts are taken to be

true and uncontroverted.

1. DiLeo is not eligible for admission to the Univer-

sity of Colorado School of Law under normal admission

standards; he is a member of an identifiable group which

has not had adequate educational and cultural opportuni-

ties available to it and which is seriously underrepresented

in the legal profession. (Note that these facts are taken as

32

_true for the purpose of this motion only.) DiLeo is Italian-

American.

2. The University of Colorado School of Law has

designed and operates a Special Academic Assistance Pro-

gram (SAAP) as defined in Law School Rule 1-6-2(c) as:

. a program designed to identify prospective law

students who appear to have the intellectual ability to

graduate from this law school but would not otherwise

be eligible for admission under normal admission

standards, and who are members of identifiable

groups which have not had adequate educational and

cultural opportunities available to them and which

are seriously under-represented in the legal profession.

It is understood that Negroes, Mexican-Americans and

American Indians are such groups, members of which

may be expected to constitute most, if not all, the par-

ticipants in this program. It is not intended, however,

to preclude participation by members of other iden-

tifiable groups which are shown to fit within the

standards set forth in the first sentence of this sub-

section.

3. DiLeo was denied the right to apply as a SAAP

student solely because the law school did not designate

his group (Italian-American) as one of the groups eligible

for SAAP consideration.

4. Had DiLeo’s group been designated for inclusion

in the SAAP, DiLeo would be admitted as a law student

under the SAAP.

ISSUE PRESENTED

Is the exclusion of Italian-Americans from SAAP con-

sideration arbitrary and capricious?

(Counsel for plaintiff and defendant both argue that

the issue is whether or not the SAAP is unconstitutional

—

a ee ae ee SS

33

because it is reverse racial discrimination and violates

DiLeo’'s rights to equal protection of the law as guaranteed

by the Fourteenth Amendment and the Colorado Constitu-

tion. Counsel expertly, extensively, and compellingly

briefed and argued that issue.

Colorado has not yet responded to the controversy de-

cided for the State of Washington in DeFunis v. Odegaard,

507 P.2d 1169 and for the State of New York in ALEVY vy.

DOWNSTATE MEDICAL CENTER, Opinion No. 63

decided April 8, 1976. Jf this court were required to decide

the issue, and it is not, it would quote Mr. Justice Douglas

as the New York court did:

Mr. Justice Douglas wrote:

“There is no constitutional right for any race to

be preferred. The years of slavery did more than retard

the progress of the Blacks. Even a greater wrong was

done the whites by creating arrogance instead of hu-

mility and by encouraging the growth of the fiction of

a superior race, There is no superior person by con-

stitutional standards. A DeFunis who is white is en-

titled to no advantage by reason of that fact; nor is he

subject to any disability, no matter his race or color.

Whatever his race, he had a constitutional right to

have his application considered on its individual mer-

its in a racially neutral manner.”

This court would hold that, if Mr. DeFunis’ exclusion

from the University of Washington School of Law was on a

racially neutral basis — if it made no difference that he was

white, Black-American, Chicano-American, American- In-

dian or Philippine-American or any other race, then the

University of Washington program passes constitutional

muster; otherwise it does not.

The reason this court need not decide that issue is that

DiLeo does not allege, and could not show, a right to relief

34

in this lawsuit. If the SAAP program were declared un-

constitutional, there would be no SAAP program to con-

sider DiLeo’s application. If the program is constitutional,

then it excludes DiLeo by its terms,

As the New York court held in Alevy (Supra) “He

failed to show his own right to relief, even if the entire

minority program were eliminated.” )

CONCLUSIONS

The issue which DiLeo can raise is whether the ex-

clusion of his identifiable group was arbitrary and capric-

ious action by the law school, an agency of the state.

DiLeo encourages and advocates the existence of a

minority program at the law school. He wishes to deny the

law school the right to limit the program to the exclusion

of the culturally deprived Italian-American group of which

he is a member.

Exhibits and affidavits presented by the defendants

demonstrate a sincere and diligent effort by the law school

to identify those groups which most clearly fit the guide-

lines set in Law School Rule 1-6-2 (c). It is obvious that

the law school’s resources for the SAAP have to be select-

ively expended.

Mr. DiLeo’s assertion that the SAAP may not exist

at all unless it is thrown open to all identifiable groups is

an assertion that if the law school cannot correct the whole

problem it may not attempt to correct the most egregious

manifestation of the problem.

The court holds that the defendants acted well within

their legally permitted discretion to determine who shall

be admitted to the SAAP.

35

The Motion for Summary Judgment in favor of the

defendants and against the plaintiff as to all issues herein

is granted.

DONE IN OPEN COURT this Ist day of June, 1976.

BY THE COURT:

(Acting) District Judge