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

—Sepceme-Boari, U.S.

In the Supreme Court of the United States” ?

JAN 12 \979

No. 78-793

MICHAEL RODAK, JR., CLERK

PHILIP F. DrLEO,

Petitioner,

vs.

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 mem-

bers of the Board of Regents of the University of Colo-

rado, 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, As-

sistant Vice-Chancellor for Academic Affairs, University of

Colorado, PEARL I. COLVIN, Assistant Dean for Admis-

sions and Placement, University of Colorado School of Law,

and WILLIAM E, RENTFRO, Director, Special Academic

Assistance Program, University of Colorado School of Law,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JOHN P. Hottoway, Esq.

University of Colorado

Boulder, Colorado 80309

(303) 492-7481

RicHarp A, Tuarp, Esq.

University of Colorado

Boulder, Colorado 80309

(303) 492-7481

Counsel for Respondents

———<——

E, L, Menpennarn, Inc., 926 Cherry Street, Kansas City, Mo, 64106, (816) 421-2020

INDEX

ISSUES PRESENTED FOR REVIEW .................:.::::0000-

ARGUMENT IN OPPOSITION TO GRANTING OF

PETITION FOR WRIT OF CERTIORARL ................

1. The Colorado Supreme Court Properly Con-

cluded, Given the Circumstances of This Indi-

vidual Action, That DiLeo Lacked Standing to

Challenge the Constitutionality of Respondents’

Special Academic Assistance Program (SAAP)

ST UPUNNENUT saetinsstenshitlecvilesetcasstonbiedentaitehipbilannaereantethinmrianies

Authorities Cited

CASES

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663

ae ea

Cross v. Bilett, 122 Colo. 278, 221 P.2d 928 ........................

DiLeo v. The Board of Regents of the University of

Colorado, et al., ........ a 5 cataibine ae

Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d

STII hss saciipera aplastic shebeeandnlacncigseditteiiahille teaieansainien

Garcia v. City of Pueblo, 176 Colo. 96, 489 P.2d 200

EEE NR aE aN aE

Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969) ........

McKinley v. Dunn, 141 Colo. 487, 492, 349 P.2d 139, 142

AI tostbctrslchciebicnih delle teteirkas delhdnncticanagiieialoialibaisltienssai

People v. Stage, ........ Ce fesse , 575 P.2d 423 (1978) ....

People v. Stark and Peacock, 157 Colo. 59, 400 P.2d 923

a

The Regents of the University of California v. Bakke,

fan US. ....... 98 S.Ct. 2733, ...... L.Ed.2d ...... (1978)

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

SID SII celitccgeesehesssvniancntavnsbncieddmiwesbainicusisnaine

In the Supreme Court of the United States

No. 78-793

PHILIP F. DrLEO,

Petitioner,

vs.

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 mem-

bers of the Board of Regents of the University of Colo-

rado, 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, As-

sistant Vice-Chancellor for Academic Affairs, University of

Colorado, PEARL I. COLVIN, Assistant Dean for Admis-

sions and Placement, University of Colorado School of Law,

and WILLIAM E. RENTFRO, Director, Special Academic

Assistance Program, University of Colorado School of Law,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ISSUES PRESENTED FOR REVIEW

Did the Colorado Supreme Court properly conclude

that Petitioner (DiLeo) lacked standing to challenge the

constitutionality of Respondents’ (The Law School) group-

oriented Special Academic Assistance Program (SAAP)

when:

2

1. DiLeo admitted that absent consideration and ad-

mission through the SAAP, he was not academically

qualified for admission to the Law School; and

when

2. A determination that the group-based SAAP was

unconstitutional would not provide DiLeo access to

the educational benefits of admission to Respon-

dents Law School; and when

3. The Colorado Supreme Court concluded that it

lacked authority to revise or amend the SAAP and

the likelihood of DiLeo being eligible for a new

special program, if any, was speculative; and when

4. The likelihood of DiLeo being offered admission

through the SAAP as presently constituted, even

if eligible for consideration, was speculative and

remote.

ARGUMENT IN OPPOSITION TO GRANTING OF

PETITION FOR WRIT OF CERTIORARI

1. The Colorado Supreme Court Properly Concluded,

Given the Circumstances of This Individual Ac-

tion, That DiLeo Lacked Standing to Challenge

the Constitutionality of Respondents’ Special Aca-

demic Assistance Program (SAAP).

The decision below of the Colorado Supreme Court

(Appendix A of Petition) affirmed the Trial Court’s grant-

ing of summary judgment in favor of the Respondents

herein (The Law School).

DiLeo had sought a ruling that the Law School’s SAAP

was unconstitutional by virtue of its use of race as a factor

3

of eligibility for consideration. The SAAP was, admittedly,

a program designed to increase minority enrollment in the

Law School. The pertinent provisions thereof read:

“[A] program designed to identify prospective law

students who appear to have the intellectual ability

to graduate from this law school but would not other-

wise 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

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 partic-

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

to preclude participation by members of other identi-

fiable groups which are shown to fit within the stand-

ards set forth in the first sentence of this subsection.”

(Emphasis added).

DiLeo claimed the SAAP was unconstitutional because

he was not permitted, as an individual applicant, to com-

pete for admission through the SAAP. Mr. DiLeo had

been considered and denied admission in the normal

process, both in 1973 and 1974. Mr. DiLeo admitted he

did not academically qualify for regular admission. Absent

some form of preferential admission program, which by its

terms included him, DiLeo did not otherwise qualify for

admission to the Law School.

The gravamen of DiLeo’s claim was an attempt to

have the Courts declare the group-based SAAP uncon-

stitutional and allow him consideration for special ad-

mission as an alleged “disadvantaged individual” who had

suffered inadequate cultural and educational opportunities

and was, therefore, not qualified for admission under nor-

4

mal admissions criteria. He did not seek to have the Law

School’s SAAP eliminated as illegal, but redefined or re-

formed to include him as eligible for special consideration.

The Colorado Supreme Court concluded that it lacked

authority to revise, reform or rewrite the Law School’s

SAAP into a new program.

“It is not the proper function of a court to establish

an admission program for a university, nor to rewrite

the program according to its own notions.” DiLeo

v. Board of Regents of the University of Colorado,

siaeall IA. iiiiati vnonneotl APOE dissent

Thus, DiLeo’s dilemma was that declaring the SAAP un-

constitutional left him in the same position, to wit, not

eligible for admission to Law School. Thus, he lacked

standing under Colorado precedent because he could not

benefit, in any way, from a ruling that the special admis-

sions program, as constituted and administered, was uncon-

stitutional. Lee v. People, 170 Colo. 268, 460 P.2d 796

(1969). Nor did the existence and operation of the SAAP

adversely affect his position. Even if the spaces allocated

to the SAAP were available, DiLeo would not receive

the educational benefit of law school admission as he would

admittedly fail in the competitive admissions process. The

Colorado Supreme Court has consistently developed and

applied the rule in Colorado that to have standing to

challenge the constitutionality of state actions, a person

must be adversely affected by the particular constitutional

defect asserted. People v. Stage, ........ SI cote , 975 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); McKinley v. Dunn, 141 Colo.

487, 492, 349 P.2d 139, 142 (1960) and Cross v. Bilett,

122 Colo, 278, 221 P.2d 923.

5

Respondents submit these decisions are consonant with

this Honorable Court’s opinions on the question of standing

and acceptance of review of this case is inappropriate.

DiLeo is not similarly situated to Alan Bakke who

but for the existence of a special preferential admissions

program would have been entitled to the educational bene-

fit of admission to medical school. The Regents of the

University of California v. Bakke, ........ SNE eccdcs , 98 S.Ct.

1 L.Ed.2d ........ (1978).

If the Colorado Supreme Court had addressed the

viability of the SAAP in light of the Bakke decision and

concluded its present administration and operation were

illegal or unconstitutional, DiLeo’s position would remain

the same. Striking down the program leaves him still

unqualified for admission.

At best, DiLeo might entertain the speculative hope

that a favorable decision on the unconstitutionality of the

SAAP would cause Respondents to enact a preferential

program which by its terms allowed DiLeo’s consideration.

Thus, he is not in a position to demonstrate an injury

to himself that is likely to be redressed by a favorable

decision on his claim. Warth v. Seldin, 422 U.S. 490,

498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The merits

of the arguments regarding the constitutionality of the

SAAP, vis-a-vis other applicants, is not a basis on which

DiLeo’s claim can rest. Flast v. Cohen, 392 U.S. 83, 88

S.Ct. 1942, 20 L.Ed.2d 947 (1968). The Court’s review

of this program in substance produces no appreciable bene-

fit to DiLeo.

Furthermore, the record at this stage indicates that

the likelihood of DiLeo succeeding in admission, if eligible

for the SAAP as presently constituted, is speculative. As-

suming this group-based program were converted to a

6

program seeking “individually disadvantaged applicants,”

with no relation to legal representation or ethnic diversity,

DiLeo’s relative position vis-a-vis applicants admitted is

less than hopeful. (See footnote 2 of Colorado Supreme

Court Opinion, ........ IE esis Me ae | + )

Petitioner’s protestations about his “personal stake”

in the proceedings are also inapposite. Certainly he has

made efforts through litigation to gain admission. And

Respondents do not challenge his unabated desire to be-

come an attorney. But these desires and personal feelings

are not the underpinnings of standing as set forth in Baker

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

Nor does the lengthy history of litigation, the numerous

motions and appeals create standing. The personal stake

is whether a likelihood of a suffered injury being redressed

is present. As indicated, no suffered injury exists and

no relative change in access to educational benefits accrue

from DiLeo’s challenge to the SAAP. He is not an appro-

priate claimant to trigger a judicial review into the complex

questions of the legality of Respondents’ minority-based

special academic assistance program.

CONCLUSION

The Petition for Writ of Certiorari should be Denied.

Respectfully submitted,

JOHN P. HOLLOWAY

University of Colorado

Boulder, Colorado 80309

(303) 492-7481

RIcHArRD A. THARP

University of Colorado

Regent Hall, Box 13, Room 203

Boulder, Colorado 80309

(303) 492-7481

Counsel for Respondents