Petition — McDonald v. Gerberding

VED

RECE

IN THE JAN 29 1980

FICE OF THE CLERK

Supreme Court of the U u , US.

TERM, 1980

No. _79-UOs

FREDERICK N. McDONALD, Petitioner,

V.

JOHN R. HOGNESS, President of the University of

Washington; DR. BENJAMIN H. BELKNAP, Chair-

man of the Admissions Committee of the University

of Washington School of Medicine; DR. ROBERT L.

VAN CITTERS, Dean of the Medical School; DR.

ROBERT A. FLENNAUGH, GEORGE V. POWELL,

JAMES R. ELLIS, R. MORT FRAYN, MRS. WILLIAM

H. GATES, JACK G. NEUPERT, R. S. PHILIP,

and the Board of Regents, University of Washing-

ton; W. W. WASHBURN, Registrar of the Univer-

sity of Washington; UNIVERSITY OF WASHINGTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF WASHINGTON

/ RICHARD B. SANDERS

328 Fairview Avenue North

Seattle, Washington 98109

‘(206) MA3-6042

Counsel for Petitioner

January 26, 1980

| TABLE OF CONTENTS

Page

Opinion Below 1

Jurisdiction 1

Questions Presented vee

Statement of the Case 3

Reasons for Granting the Writ 9

Conclusion 16

Appendices:

Appendix A

Decision of the Washington

Supreme Court A

Appendix B

Judgment of Washington Superior

Court for King County Bi-2

Appendix C

? Findings of Fact and Conclusions

of Law‘ of Washington Superior

Court for King County C1-C34

Appendix D

Mandate of Washington Supreme Court. D

Appendix E

Washington Supreme Court Order :

Denying Petition for Rehearing E

Appendix F

Oral Decision of Washington

Superior Court for King County F1-F7

Appendix G

Constitutional and Statutory Provisions G

8

TABLES OF AUTHORITY Page

Table of Cases | Constitutional Provisions

| ey

Page U.S. Constitution, 14th Amendment ) Se

App. G

Albemarle Paper Co. v. Moody,

422 U.S. 405, 45 L.Ed. 2d. 280, | Statutes

95 S Ct. 2362 (1975) 13

3 28 U.S.C. 1257 €3) 2

Bakke v. University of California Regents, 42 U.S.C. 2000 (d) 2, App. G

436 U.S. 265 S. Ct. 2733, 57 L.Ed. 52 1.5.6. T6838 3, App. G

2d 750 (1978) 9, 10

| Other Authority

Defunis v. Odegaard, iss

82 Wn.2d. 11, 507 P.2d 1169 (1973), | K. Davis, Administrative Law: Treatise,

vacated as moot 416 U.S. 312, 40 L.Ed.2d 2nd. ed., Vol. 2 (1979) p. 162 15

164, 94 S.Ct. 1704 (1974) 10-13

Environmental Defense Fund v. Ruckelshaus

439 F.2d 584 (D.C. Cir. 1971) 15

Fink v. Finegan,

270 N.Y. 356, 1 N.E.2d 462, 465 (1936) 14

Holmes v. New York City Housing Authority,

398 F.2d 262 (1968) 13

Morton v. Ruiz,

415 U.S. 199, 232, 39 L.Ed. 2d. 270, 292, :

94 S.Ct. 1055 (1974) 15 | :

U.S. v. Carmack,

329 U.S. 230, 243, 91 L.Ed. 209 (1946) 13

White v. Roughton,

~ 530 F.2d 750, 753-754 (7th Cir. 1976) 15

IOS A A TELE I AER NERS Ok ge 9 ti ————————————————EE——E

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1980

No.

FREDERICK N. McDONALD, Petitioner,

Vv.

JOHN R. HOGNESS, President of the University of

Washington; et al, Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF WASHINGTON

The petitioner Frederick N. McDonald respect-

fully prays that a writ of certiorari issue to review

the judgment and opinion of the Supreme Court of

the State of Washington entered in tnis proceeding

on August 2, 1979.

OPINION BELOW

The opinion of the Washington Supreme Court,

reported at 92 Wn.2d 431, 598 P.2d 707, appears

in the appendix hereto.

JURISDICTION

The opinion of the Washington State Supreme

Court was filed on August 2, 1979. A _ timely

2

motion for reconsideration was denied on October

31, 1979, and the State Supreme Couri's mandate

was issued on November 6, 1979. The jurisdiction

of this Court is invoked under 28 U.S.C. 1257

(3).

QUESTIONS PRESENTED

The following questions are presented by this

petition:

A. Whether the Fourteenth Amendment of the

United States Constitution prohibiting states from

denying persons within their jurisdiction the equal

protection of the laws or. the deprivation of life,

liberty or property without due process of law is

violated by a practice of the governing authorities

of the University of Washington, a_ state

institution, giving preference solely on the basis of

race to certain persons to the exclusion of others

in competition for limited spaces available in the

medical school.

B. Whether a practice of the University of

Washington wherby white students are required,

solely on the basis of race, to meet different and

more stringent criteria than are persons of certain

other races in obtaining admission to the medical

school, violates the Federal Civil Rights Act, Title

42, U.S.C. 2000 (d) which prohibits discrimination

or exclusion on the basis or race from any program

or activity receiving federal financial assistance.

_————

esis | P

3

C. Whether the same practice violates 42

U.S.C. 1983 which prohibits any person, under

color of law, from depriving another of any rights,

privileges, or immunities secured by the U.S. Con-

stitution.

D. Whether the Fourteenth Amendment of the

United States Constitution prohibiting states from

denying persons within their jurisdiction life,

liberty or property without due process of law is

violated by an admissions procedure of the Univer-

sity of Washington Medical School which is arbitrary

and/or capricious.

STATEMENT OF THE CASE

Frederick N. McDonald, a 24 year old cauca-

sion, was denied admission to the University of

Washington Medical School's entering 1976 class.

His prior academic record was outstanding and

included a cumulative undergraduate grade point

average of 3.58 out of 4.0 and MCAT scores which

put him in the top five percent of medical school

applicants nationally. As a chemistry _major, he

was invited to join the Honorary Chemical Society,

Phi Lamba Upsilon. Besides academic excellence,

Fred McDonald's background included training as a

medic in the Washington National Guard and volun-

teered services as an aide in a convalescent center.

The trial court characterized his credentials as

"outstanding." V.R. 514, Appendix F.

4

The University of Washington Medical School,

Federally funded, received 1,703 applications for

the entering 1976 class. Under the University's

enrollment limitations, there were 175 openings

allotted to the School of Medicine, although 50 of

those were reserved for residents of neighboring

states participating in a special program.

While the published criteria for admission to

the University of Washington Medical School was

racially neutral on its face, the trial court found

(Finding 17) that an applicant's race was indeed

taken into consideration in the admissions process.

In practice, Blacks, Chicanos, and American

Indians with basic. academic credentials were re-

cruited nationally by the Medical School and were

given "extra points" on the interview portion of

the selection process which virtually assured their

admission. Dr. Lagunoff, one of Fred McDonald's

interviewers, testified at the time of trial that Fred

would have been given more points on the inter-

view had he been Black:

Q "Well, he would have been given some

positive points, wouldn't he, for being

Black?"

A "Yes, | think that's likely that would

have been in his favor. That would

have been a consideration in our minds

that would favor him, yes." V.R. 232.

"... | would give him some _ special

credit for being a member of a minority

group when it came to the overall evalua-

Gen.” - VR. 233.

5

Dr. Benjamin Beiknap, Chairman of the Admis-

sion Committee, offered the principal defense of

the "plus points" given to qualified minorities in

the interview. He advanced two rationale: (1)

"medical manpower needs of the region" (VR 472)

(there are few Black, Chicano, and Indian doctors

in the area), and (2) racial diversity (VR 477).

"In a class of 175, diversity will

occur just by the sheer numbers. Diver-

sity on almost any other grounds--there

are rich and poor students, and there

are only children and there are those who

have a dozen siblings, there are those

who have three years of undergraduate

education and those who have Ph.D.'s,

there are those who have at the time of

entrance to medical school suffered major

adversity, grief or illness or what-have-

you, and there are those who have not

had any exposure along those lines, and

there are those who are single, those

who are married, and those who are di-

vorced several times.

However one wants to cut it--eco-

nomic, geographical--a class will sort

itself out in terms. of diversity in a

group of individuals by itself, except for

ethnicity." (VR 478).

The selection process at the University of

Washington Medical School can be briefly summar-

ized as follows. A numerical "first screen score"

is first calculated for each applicant based upon

his undergraduate grade point average and MCAT

score. A perfect grade point average would give

6

the applicant 4.0 and a perfect score on the MCAT

test would give him an additional 4 points. On a

scale of 8, Fred McDonald, for example, received a

first screen score of 7.11. Washington residents

(and nonresident minorities) having an adequate

first screen score are referred to an admissions

committee which reviews the applicant's overall

paper credentials and in substance determines

whether the application should be summarily denied

or whether the applicant should be given an in-

person interview.

The interview itself is usually about 20 min-

utes in length. Two faculty members and one med-

ical student participated in Fred McDonald's inter-

view; however, the record shows that there were

no set number of interviewers present at each

applicant's interview, nor did the same individuals

take part in each of the interviews. At the con-

clusion of the interview, each of the interviewers

rates the applicant on a scale from 0 to 4 based on

his perception of the applicant's "motivation, matur-

ity, and demonstrated humanitarian qualties."

These ratings are then averaged. The results of

the interview are kept confidential from the appli-

cant himself and, of course, there is no procedure

wherby the applicant can have an administrative

review of his interview rating. Fred McDonald

received an average score of 2.17 out of a possible

* points.

cnt

7

At the conclusion of the interview, a "skeletal

consideration list" is prepared which establishes a

rough order or agenda for consideration of the

candidates by the executive committee of the admis-

sions committee. The skeletal consideration list is

divided into four categories based entirely on the

candidate's score in the interview (Finding 10g).

Candidates receiving 3.5 or better in the interview

are in category 4, those from 2.5 to 3.5 in cate-

gory 3, 1.5 to 2.5 in category 2, etc. Applicants

are ranked within each of the categories based

upon their total score which is derived from adding

their first screen score to their interview score.

As a matter of practice, placement in category

4 virtually assures the applicant will be offered an

acceptance, while placement in category 2 (as was

Fred McDonald) virtually assures that the applica-

tion will be denied. The interview is therefore the

central feature of the selection process.

Fred McDonald, for example, had a higher

first screen score than about one-half of_the appli-

cants ultimately admitted by the U.W Medical School

and a higher first screen score than any of the

Blacks, Chicanos, or American Indians who were

admitted by the medical school. His name appeared

far down the skeletal consideration list; however,

because of his relatively poor score on the inter-

view; whereas minority applicants with marginally

acceptable academic credentials, but lower first

screen scores

8

were ranked far above McDonald in the skeletal

consideration list by virtue of their "extra points"

on the interview.

The trial court made no finding that the inter-

view constituted a valid measure of the referenced

subjective attributes of motivation, maturity, and

humanitarian commitment, nor did it purport to

find that these intangibles, even if measureable,

were necessary for the practice of medicine.

On the contrary, testified Dr. Thomas Cullen,

an educational psychologist from the U.W. Medical

School who had written his doctoral dissertation on

aspects of the U.W.'s medical admissions program

as well as the interview. Cullen summarized the

standards by which an applicant's performance

might be judged in the interview:

"By governing principal, | interpreted

that to mean a fundamental iaw that

people can go to, and to my knowledge,

there is no published governing principal

that multiple evaluators could use _ to

measure non-cognitive factors." (V.R.

423).

After McDonald's application was denied, he com-

menced this action in Superior Court seeking in-

junctive relief and monetary damages. His com-

plaint was dismissed at the conclusion of plaintiff's

case by the trial judge and affirmed on appeal. In

the trial (see Plaintiff's Trial Brief p. 11 et seq.)

as well as before the Washington State Supreme

9

Court (see Appellant's Brief p. 15 et seq.), Mc-

Donald argued that his rights under the U.S. Con-

stitution and referenced Federal statues had been

violated as is reflected in the published opinion of

the State Supreme Court. This petition follows.

REASONS FOR GRANTING THE WRIT

This case involves some of the most funda-

mental rights of citizens under the Federal Consti-

tution, notably the rights to equal and fair treat-

ment.

The importance of the issues raised can be

judged from a number of perspectives. While the

appeal was initially filed at the intermediate level

of Washington's Appellate Courts, the Court of

Appeals, on its own motion, certified the case to

the State Supreme Court on November 9, 1978.

The order provided:

"An appeal having been filed in this court

and the judges of the Court of Appeals,

prior to a hearing theron, being of the

opinion that the above case, pursuant to

RCW 2.06.030 (d), involves fundamental

and urgent issues of broad public import

requiring prompt and ultimate determina-

tion as they relate to Bakke v. Univer-

sity of California Regents, 46 U.S.L.W.

TES (U.S. Juné 28, 1978), it is hereby,

Ordered that the above-entitled case is

certified to the Supreme Court for such

determination as that court deems appro-

priate."

10

The Supreme Court's published opinion also

recognizes "the public importance of the issue and

the likelihood of its recurrence. . ." and pur-

ported to establish a precedent of equal impor-

tance.

This court has in the past recognized the

critical importance o. the equal protection issue in

the context of so-called affirmative action programs

in graduate school admissions. See, e.g. Regents

of the University of California v. Bakke, 438 U.S.

265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) and

Defunis v. Odegaard, 416 U.S. 312, 40 L.Ed. 2d

164, 94 S.Ct. 1704, (1974). As illustrated by the

case at bar, however, the fundamental questions

which motivated this court to accept review of

Defunis and Bakke, as well as intimately related

issues, have yet to be put to rest--at least in the

context of an admissions policy which is racially

neutral on its face, but invidiously discriminatory

in practice.

The case at bar, however, raises yet another

fundamental issue of due process not addressed in

either Bakke or Defunis: the interview. The

nation's medical schools almost without exception

employ the interview in some phase of their selec-

tion process. The interview is commonly used in

other contexts: not only in the educational, but

in the employment field as well. Racial discrim-

ination thinly veiled by an interview purporting to

11

measure such unknowables as "motivation, maturity,

and demonstrated humanitarian commitment" points

to the potentially more fundamental problem: the

fairness or validity of the interview itself. This

court has never condoned arbitrary and capricious

administrative adjudicatory action and has in gen-

eral, at the very least, required that there be a

discernable governing principle or standard avail-

able to afford the citizen a basis for judicial re-

view of the challenged administrative action in

order to protect the fundamental due process.

Even absent the racial elements of this case, this

latter issue is of such importance that it alone

should justify review.

Not only is the case important for the reasons

set forth above, but it gives this court the oppor-

tunity to clarify the nature of the rights involved

so they are not lost in a sea of conceptual confu-

sion.

The State Supreme Court Opinion is in con-

flict with earlier decisions of this court -in numer-

ous respects.

At the outset the opinion appears to premise

the availability of relief on equal protection grounds

upon a showing that McDonald would have been

admitted but.for the use of racial criteria. This

departs from the same court's conclusion that Marco

Defunis had standing to pursue his claim even

though he would not have been admitted but for

LL A RE ees ge

—_

12

the racial considerations. See Defunis v.

Odegaard, 82 Wn.2d 11, 507 P. 2d 1169 (1973).

Under the rule oft announced by this court, the

remedy of a person in the disfavored class for

equal protection purposes would be to vest him

with the privileges of those in the favored class.

"The guarantee of equal protection cannot

mean one thing when applied to one indi-

vidual and something else when applied

to a person of another color. If both

are not accorded the same protection,

then it is not equal." Bakke supra, 438

U.S. at 290.

If favored racial minorities are to receive

"plus points" on the interview, so to should Fred

McDonald.

The State Supreme Court opinion attempts to

distinguish Bakke by declaring that the University

of Washington program is similar to the "Harvard

Plan" referenced in Justice Powell's opinion. The

State Supreme Court holds that the state has a

"compelling interest" to use racial criteria for the

sake of "diversity" and "promotion of integration

in public education". What the state court means

by "diversity" is not what this Court meant, how-

ever. During the course of the trial, the chair-

man of the admissions committee made it clear that

his concern for diversity was racial diversity, as

such (see page 5 infra).

13

This is no more than racial preference for its

own sake, an obvious violation of the principles

set forth in Bakke:

"Preferring members of any one group

for no reason other than race or ethnic

origin is discrimination for its own sake.

This the Constitution forbids." Bakke,

supra, 438 U.S. at 307.

Although the selection process (or, at least,

the "selector") was obviously and admittedly ra-

cially biased, the trial court and the State Supreme

Court refused to adopt the principle set forth in

Albemarle Paper Co. v. Moody, 422 U.S. 405, 45

L.Ed.2d 280, 95 S.Ct. 2362 (1975), which would

place the burden of proof on the agency to show

the validity of their selection process. While the

state court opinion attempts to distinguish Albe-

marle as dealing with employment, it is submitted

that there is no difference in principle between a

student seeking admittance to medical school and a

worker seeking employment or promotion. The

trial court made no finding that the selection pro-

cess was valid and the school made no attempt to

prove that it was.

The State Supreme Court decision also sub-

stantially departed from the due process require-

ment "that selections among applicants be made in

accordance with ascertainable standards". Holmes

v. New York City Housing Authority, 398 F.2d

262 (1968).

14

The State Supreme Court refused to follow

the due process definition of "arbitrary"--"without

adequate determining principle" -- U.S. v.

Carmack, 329 U.S. 230, 243, 91 L.Ed. 209 (1946),

and in effect held that there was no necessity for

the university to judge applications on criteria

anymore specific or capable of definition than

"motivation, maturity, and humanitarian commit-

ment," Nor does the opinion even require that the

members of the interview committee agree on the

meaning of the term:

"In short, the fact some qualified appli-

cant are rejected and non-mathematical

factors are weighed differently by differ-

ent interview committee members does not

show arbitrary and capricious conduct."

92 Wn 2d at 451.

This language leaves the determination of

whether one applicant possesses more "maturity,

motivation, and humanitarian commitment" than an-

other applicant entirely up to the interview commit-

tee without the possibility of meaningful review.

Although the application process purports to be

competitive, it cannot be.

"An examination cannot be classified as

competitive unless it conforms to meas-

ures or standards which are sufficiently

objective to be capable of being challenged

and reviewed when necessary by other

examiners of equal ability and experience."

Fink v. ay 270 N.Y. 356, 1 N.E.

’ 6).

|

;

|

|

15

The trial judge correctly summarized the trial

court's inability to review the interview committee's

determination:

". . . We are just not equipped to sec-

ond guess their discretionary activity."

Appendix F At

Exactly. However, the "vesting [of] virtually

unfettered discretion" in an administrator and his

staff “is clearly violative of due process." White

v. Roughton, 530 F2d 750, 753-754 (7th Cir. 1976).

Nor can ad hoc decisions of administrators be per-

mitted. Morton v. Ruiz, 415 U.S. 199, 232, 39

L.Ed.2d 270, 292, 94 S.Ct. 1055 (1974).

"Judicial review must operate to insure

that the administrative process itself will

confine and control the exercise of dis-

cretion. The court should require ad-

ministrative officers to articulate the

standards and principles that govern

their discretionary decisions in as much

detail as possible." Enviromental De-

fense Fund v. Ruckelshaus 439 got

584, 594, 598 (D.C. Cir. 1971).

"In all contexts, the need is a strong

one for protection against unnecessarily

broad discretionary power, exercised

with insufficient protections against arbi-

trariness." K. Davis, Administrative

Law Treatise, 2nd ed. Vol. 2 (1979)

Oo. Wee

16

CONCLUSION

For these reasons, a writ of certiorari should

issue to review the judgment and opinion of the

Washington State Supreme Court.

Respectfully submitted,

RICHARD B. SANDERS

328 Fairview Avenue North

Seattle, Washington 98109

(206) MA3-6042

Counsel for Petitioner

APPENDIX A

DECISION OF THE WASHINGTON SUPREME COURT

Aug. 1979 McDONALD v. HOGNESS 431

{1]

[2]

[3]

[4]

(5)

(6]

92 Wn.2d 431

(No. 45864. En Banc. August 2, 1979.]

FREDERICK N. McDonaLp, Appellant, v. JOHN

R. HoGness, Et AL, Respondents.

Colleges and Universities — Constitutional Law — Equal

Protection — Classification — By Race — Admissions Poli-

cies. The consideration of race asa positive factor in the selection

of students for admission into a state university program does not

violate constitutional equal protection guaranties when there is no

quota which removes the member of a particular racial group from

competition with all other applicants, and the consideration of race

is designed to promote a compelling state interest.

Colleges and Universities — Constitutional Law — Equal

Protection — Compelling State Interest — Racial Balance.

Increasing the diversity of the racial makeup of the student body in

a state university, as well as correcting a previous underrepresenta-

tion of certain racial groups in designated professions, is a compel-

ling state interest.

Administrative Law and Procedure — Delegation of Pow-

ers — Standards — Sufficiency. A legislative delegation of

authority to adopt standards may indicate what is to be done and

who is to do it in general terms when more > precise terms are not

feasible. -

Administrative Law ‘aa Procedure — Delegation oi Pow-

ers — Review — Sufficiency. Protection against arbitrary exer-

cise of delegated powers may be provided by administrative

practices and informal rules providing procedural safeguards.

Administrative Law and Procedure — Discretionary

Action — Validity — Test. In order to establish arbitrary and

capricious action on the part of an administrative body, a party

must show that the action is willful and unreasoning in disregard of

facts or circumstances. Discretion exercised honestly is not arbitrary

and capricious just because it is believed to be erroneous.

Colleges and Universities — Admission Practices — Pro-

fessional Schools. Subjective factors involving judgmental evalu-

ations may be considered in state professional school admission

determinations.

Starrorp, J., concurs in the result only; Rose.uint and Horowitz, JJ.,

did not participate in the disposition of this case.

432 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

Nature of Action: An unsuccessful applicant to the

University of Washington School of Medicine sought to be

admitted to the school and to recover damages.

Superior Court: The Superior Court for King County,:

No. 817562, James J. Dore, J., dismissed the action on June

21, 1977, at the end of the plaintiff's case.

Supreme Court: Holding that the consideration of race

in the admission procedure did not deny equal protection,

and that the selection process was not arbitrary and capri-

cious, the court affirms the judgment.

Richard B. Sanders, for appellant.

Slade Gorton, Attorney General, James B. Wilson,

Senior Assistant, and Steve Milam, Assistant, for

respondents. -

WRrtGHT, J.—Frederick N. McDonald, an unsuccessful

applicant to the University of Washington (U.W.) School of

Medicine, seeks admission to the school and damages. In -

the trial court he alleged that in denying his application for

the 1976 entering (E-76) class the school discriminated

against him racially in violation of the Fourteenth

Amendment,’ Title 6 of the 1964 Civil Rights Act? and 42

U.S.C. 1983.° He also asserted that the school's admission

process is arbitrary and capricious as was the treatment of

his application. The trial judge dismissed the action after

McDonald rested his case. McDonald appealed. The Court

of Appeals, Division One, certified the case to this court.

"U.S. Const. amend. 14, § 1 reads in part: “nor shall any state deprive any

person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws."

"Section 601, Title 6 of the 1964 Civil Rights Act (42 U.S.C. § 2000d) states:

"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 sub-

jected to discrimination under any program or activity receiving Federal Gnancial -

assistance.” 4

342 U.S.C. § 1983 reads:

*Every person who, under color of any statute, ordinance, regulation, custom,

Ln eae ae ith sient

= ay TRO Sb He .

ee Cree ee

Aug. 1979 McDONALD v. HOGNESS 433

92 Wn.2d 431

There are two major questions. First, does a state medi-

cal school's admission policy deny equal protection when it

considers ‘race as a factor in evaluating applications? Sec-

ond, are the admission standards and procedures of the

U.W. medical school arbitrary and capricious, and did their

application to McDonald constitute arbitrary and capri-

cious action?

For the E-76 year, 1,703 individuals applied, and 175

could be admitted. Of the 175 positions, 50 were earmarked

for qualified residents of Alaska, Montana and idaho under

the Washington, Alaska, Montana and Idaho (WAMI) pro-

gram, a system of regional medical education. See RCW

28B.15.225 and RCW 28B.70. Another two seats were ear-

marked for another special program. Selection factors were

set forth in Medical School Admissions Requirements

1976-77, at page 304, as follows:

Candidates are considered comparatively on the basis of

academic performance, medical aptitude, motivation,

maturity, and demonstrated humanitarian qualities.

Extenuating background circumstances are considered as

they relate to these selection factors.

And see Bulletin of U.W. School of Medicine, 1975 and

1976.

Medical school personnel believe grade-point average

(GPA) is the best measure of academic performance, while

the Medical College Admissions Test (MCAT) score is the

best measure of medical aptitude. Noncognitive criteria—

motivation, maturity and demonstrated humanitarian

qualities—are assessed from the applicant's file and the

interview. McDonald, a Washington resident, had a cumu-

lative undergraduate GPA of 3.58 out of 4.0 at the time he

applied. He allegedly scored in the top 5 percent nationally

or usage, of any State or Territory, subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to the cepri-

vation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to.the party injured in an action at law, suit in equity, or

other proper proceeding for redress.”

434 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

on the MCAT.‘ Though the trial court found McDonald

qualified, it said his overall credentials were comparatively

average. - |

The medical school's selection process was aptly summa-

tized by the trial court: ;

[T]he Committee on Admissions functions simulta-

neously at three levels. . . . Generally, the paper creden-

tials of each applicant are reviewed independently by two

members of the Admissions Committee... .

(C]andidates considered potentially competitive . . . are

invited to meet with an_ interview-conference

committee. . . . Interview—conference committees evalu-

ate the candidates’ paper credentials and the candidates

... and forward their evaluations to the Executive

Committee [EXCOM] of the Committee on Admissions

as a part of each... . application. . . . [The EXCOM],

which reviews applicants in the context of the total

applicant pool, makes final determinations.

The “first screen" score calculated upon receipt of an

application is based on GPA and MCAT. It is the "bright-

line” test for referral to the admissions committee and is

considered later by admissions committee application read-

ers and interview-conference committee members. Of the

1,703 applicants, 816 were referred to the reading commit-

tee. Interviews were granted to 546 applicants considered

potentially competitive by reading committee analyses.

The interview-conference committee evaluates the can-

didate and his paper credentials in terms of published

selection factors and identifies strengths and weaknesses.

Before each interview-conference, each committee member

reviews a copy of the candidate's application file, including

letters of recommendation. Members are provided at each

session with written guidelines and forms for comments.

After the 20- to 30-minute interview the candidate is

. McDonald's MCAT Sccres Total E-76 Accepted

Class Mean MCAT Scores

Verbal 97% 76%

Quantitative . 69% - 17%

General Information 91% 69%

Science 95% 86%

a en eres

_view-conference summary.

Aug. 1979 McDONALD v. HOGNESS 435

92 Wn.2d 431

excused and each member independently places the appli-

cant in one of four categories: (1) Unacceptable (specific

deficiencies); (2) Possible (with comparative deficiencies

academically and/or with regard to noncognitive features);

(3) Acceptable (no deficiencies that are not balanced by

other abilities, would be an average medical student); and

(4) Outstanding (no apparent deficiencies, high probability

of making an excellent physician and scholar). Following

each interview-conference, committee staff calculate’ an

average of the individual committee members’ ratings

based on a scale of 4 for "outstanding" downward through 1 .

for "unacceptable". The average is entered on the inter-

The Skeletal Consideration List (SCL) serves as a rough

agenda for EXCOM selection meetings. Placement is

determined by one's total score—first screen score plus

interview-conference score—grouped again in categories 4,

3, 2 and 1. Placement in category 2 or 1 nearly always leads

to application denial. McDonald averaged 2.17 on the

interview and was placed in category 2. His SCL position

was at the number 237 level. When: corrected for "ties" of

546 candidates interviewed for 175 slots, more than 300

placed higher than McDonald. However, every Black,

Chicano and American Indian placing higher than

~McDonald on the SCL had a lower "first screen” score than

he did. On April 30, 1976, EXCOM voted that all candi-

dates not otherwise acted upon, which included McDonald,

be considered noncompetitive for the E-76 class, and his

application was denied.

The first question is whether using race as a positive fac-

tor in a state medical school's admission policy and process

violates the equal protection clause of the Fourteenth

Amendment and section 601, Title 6 of the 1964 Civil

Rights Act (42 U.S.C. § 2000d). We conclude that it does

not.

At the outset, we note that the evidence shows McDonald

would not have been admitted into the E-76 class even

absent the six minority persons accepied and without any

436 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

consideration of race.° This alone is justification for deny-

ing relief on equal protection grounds. Alevy v. Downstate

Medical Center, 39 N.Y.2d 326, 338, 348 N.E.2d 537, 547,

384 N.Y.S.2d 82, 91 (1976). However, because of the public

importance of the issue and the likelihood of its recurrence,

we will consider the broader question. Under the Supreme

Court majority's analysis in Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733

(1978), if the admission program does not violate the Four-

teenth Amendment, it does not violate section 601 of Title

6. Regents of Univ. of Cal. v. Bakke, supra at 325. Accord-

ingly, we shall emphasize the equal protection issue.

McDonald states that the U:W. medical school's. practice

is to admit all qualified minority persons because of race,

but not all qualified nonminority individuals. Nonminority

candidates are forced to compete with one another for the

remaining seats, a "competitive disadvantage." The organi-

zational focus of McDonald's criticism is the interview-

conference committee, which purportedly puts the minority

applicant with basic credentials (adequate MCAT and

GPA) in a position on the SCL which "assures ultimate

acceptance". Nonminority individuals with better "first

screen” scores than some minority persons are denied

"extra points" afforded minority applicants which would

Finding of fact No. 18 states McDonald “would not have been admitted even

if all six of the minority applicants [admitted] were removed. Plaintiff McDonald

was not on the [18-person] designated alternate list. . .* During redirect exami-

nation, Dr. Benjamin Belknap, admissions committee chairman, stated anyone

not on the alternate list would not have been admitted. He also indicated that

absent any racial consideration or criteria employed, McDonald would not have

been admitted. McDonald also had very low placement on the SCL. See page 435.

This case differs from Bakke v. Regents of Univ. of Cal., 18 Cal. 3d 34, 553

P.2d 1152, 132 Cal. Rptr. 680 (1976), where the University of California conceded

it could not meet its burden of showing Bakke would not have been admitted

absent the racial preference. There Bakke's overall “benchmark” or total score in

1973, which included GPA, MCAT and subjective elements like letters of recom-

mendation and the interview rating, barely missed the cutoff (see page 437) at the

time when four seats reserved for minorities were unfilled. In ‘contrast,

McDonald's overall rating—based on the interview and subjective, noncognitive

criteria as well'as on his objective “first screen" score—is relatively low, as

reflected in his placement on the SCL.

ME OAD LL DARE wen 1 bro UT Aintree tes

nant tahoe hance Aa Ren

Aug. 1979 McDONALD v. HOGNESS 437

92 Wn.2d 431

place ‘them in favored SCL categories. "If Fred McDonald

were Black, he would have gotten a higher score on the

interview,” appellant declares.

First, McDonald inaccurately describes the U.W. system.

As respondent points out and as the record shows, not all

qualified minority persons are admitted by the medical

school. Seven minority persons ranked higher than

McDonald on the 1976 Skeletal Consideration List and

were not offered admission. Approximately 30 minority

applicants in the interview-conference pool were not

offered admission. cs

Furthermore, analysis of Regents of Univ. of Cal, v.

Bakke, supra, shows,the school of medicine's admission

policies and procedures do not violate the equal protection

clause of the Fourteenth Amendment.’ In Bakke, the Med-

ical School of the University of California at Davis had two

admission programs for the entering class of 100 students—

the regular and special programs. A separate committee

operated the special program, and selected only minority

applicants to fill 16 positions reserved for them. —

Bakke, a white male, applied to the Davis medical school

in both 1973 and 1974. His application was considered by

the general admission program and he was interviewed in

both years. In 1973 he had a strong "benchmark or overall

score of 468 out of 500 but no applications with scores

below 470 were accepted after Bakke's was completed. In

both years, Bakke was denied admission while applicants

were admitted under the special program with grade-point

averages and MCAT scores significantly lower than

Bakke's.

’n.2d 11, 37 n.16, 507 P.2d 1169 (1973),

ola verte b snopes hen aided 14, and the privileges and

immunities clause of Const. art. 1, § 12, have the same import” and are applied as

one. Northshore School Dist. 417 v. Kinnear, 34 \Wn.2d 685, 720-21, 530 P.2d 178

(1974); Markham Advertising Co v. State, 73 Wn.2d 405, 427, 439 P.2d 243

nseq i icine’ itutional undo:

1968). Co uently, since the school of medicine's system is constitution

si federal constitutional provision, it is constitutional under the Washington

counterpart.

438 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

Bakke sued, seeking admission. He alleged the special

admission program excluded him on a racial basis, in viola-

tion of his rights under the equal protection clause of the

Fourteenth Amendment, the state privileges and immuni-

ties clause and section 601, Title 6 of the 1964 Civil Rights

Act (42 U.S.C. § 2000d). The trial court held the program

violative of both the constitutional and statutory provi-

sions. Ignoring the state constitutional and statutory

grounds, the California Supreme Court held the program

violated the equal protection clause of the Fourteenth

Amendment. Bakke v. Regents of Univ. of Cal., 18 Cal. 3d

34, 553 P.2d 1152, 132 Cal. Rptr. 680 (1976). ,

Five members of the United States Supreme Court voted

to affirm the judgment of the California court ordering that

respondent Bakke be admitted to Davis. Mr. Justice Powell

based his decision to affirm on a finding the program vio-

lated the equal protection clause. Mr. Chief Justice Burger

and Justices Stewart, Rehnquist and Stevens avoided the

constitutional issue we confront here, holding instead that

the university excluded Bakke from Participation in ics

medical education program because of his race in violation

of section 601, Title 6 of the 1964 Civil Rights Act: (42

U.S.C. § 2000d). Four justices, Brennan, White, Marshall

and Blackmun, dissenting, found the admission program

valid ori the constitutional ground.

Appellant argues that Bakke supports his position

because here all qualified minority applicants are admitted

while nonminority applicants are forced to compete among

themselves as in Bakke for the remaining seats. But this

admission program significantly differs from that at Davis.

Appellant concedes that a quota or target number of

minority applicant admissions is not involved. Further,

there is not a separate admission system isolating minority

persons from competition with nonminority persons as in

Bakke; the university "gave no separate consideration or

Separate treatment" to Black, Chicano and American

Indian applicants interviewed.

eee

ar eae ce

Aug. 1979 McDONALD v. HOGNESS 439

92 Wn.2d 431

[1] Separate consideration of minority applicants is dis-

couraged by Mr. Justice Powell in his Bakke opinion.

Under Mr. Justice Powell's opinion, the use of race is

impermissible where one group is cut off solely on a racial

basis from competition with others. On the other hand,

Powell considers the use of race in admissions permissible

if it (1) is designed to promote a compelling state interest,

and (2) does not insulate an applicant from competition

with remaining applicants.

In applying his test, Mr. Justice Powell characterizes as

compelling, the goal of the attainment of a diverse student

body stressing that the freedom to select a student body is

an element of academic freedom, a special First Amend-

ment concern.’ Regents of Univ. of Cal. v. Bakke, supra at

312. He explains that this diversity encompasses a broad

array of qualifications and characteristics of which racial

origin is a single element. Regents of Univ. of Cal. v.

Bakke, supra at 314. He concludes from the experience of

other university admission programs which take race into

account in achieving diversity that the assignment of a

fixed number of places to a minority group is not necessary.

Regents of Univ. of Cal. v. Bakke, supra at 316.

"The University of Washington argues that the denial of McDonald's applica-

tion was an exercise of its constitutionally protected freedom to decide who shall

be admitted to study. It quotes Mr. Justice Frankfurter's concurring opinion in

Sweezy v. New Hampshire, 354 U.S. 234, 263, 1 L. Ed. 2d 1311, 1332, 77 S. Ct.

1203, 1218 (1957), also quoted by Mr. Justice Powell in Bakke, at 438 U.S. 312:°

"It is the business of a university to provide that atmosphere which is

most conducive to speculation, experiment and creation. It is an atmosphere in

which there prevail "the four essential freedoms" of a university—to deter-

mine for itself on academic grounds who may teach, what may be taught, how

it shall be taught, and who may be admitted to study.""

Mr. Justice Powell also relies on Keyishian vu. Board of Regents, 385 U.S. 589,

603, 17 L. Ed. 2d 629, 640, 87 S. Ct. 675, 683 (1967), where the court noted a

national commitment to safeguarding an academic freedom

of transcendent value to all of us and. . . therefore a special concern of the

First Amendment ... The Nation's future depends upon leaders trained

through wide exposure to that robust exchange of ideas which discovers truth

"out of a multitude of tongues...”

Like Mr. Justice Powell, we believe that the atmosphere of “speculation,

experimentation and creation” is promoted by a diverse student body. We agree

that in seeking diversity, the UW. mecical school must be viewed “us seeking to

Ce

440 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

In dicta, Mr. Justice Powell indicates that the Harvard

admission plan, which like the plan here employs race as an

admission factor, furthers a compelling state interest in

diversity of the student body. Regents of Univ. of Cal. v.

Bakke, supra at 316-18. Justices Brennan, White, Marshall

and Blackmun also found the Harvard plan constitutional

under their approach. Regents of Univ. of Cal. v. Bakke,

supra at 326 n.1. Thus, a majority of the court find consti-

tutional a plan without a quota or separate consideration

for minority groups but where race may be a beneficial fac-

tor. The University of Washington School of Medicine's

admission policies and procedures have the same redeeming

characteristics.

[2] McDonald argues there is no finding the classifica-

tion here, serves a compelling or substantial interest, or is

necessary to realize such an interest. As respondent

emphasizes, however, both in seeking diversity® and in ful-

filling the DeFunis mandate of "promoting integration in

public education," the school of medicine has a compelling

state interest permitting consideration of race. The

Washington plan also fulfills the second element of Mr.

Justice Powell's test. The system assures competition

among applicants, thereby avoiding "denial of individual-

ized consideration," the principal evil of the Davis plan.

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 318 n.52,

57 L. Ed. 2d 750, 789 n.52, 98 S. Ct. 2733, 2763 n.52 (1978).

achieve a goal that is of paramount importance in the fulfillment of its mission."

Regents of Univ. of Cal. v. Bakke, supra at 313. But though a university, must

have wide discretion in making admission judgments, ‘constitutional limitations

protecting individual rights may not be disregarded." Bakke, at 314.

*Pinding of fact No. 15, not challenged by McDonald, indicates a purpose of

promoting diversity in the student body and not just a purpose of serving medical

needs of the region:

Consistent with overall University of Washington policy, the University's

School of Medicine and its faculty have determined that in order to best serve

the educational needs of the medical school and to better serve the medical

professional needs of this region, it is essential that the school of medicine

- should seek greater representation of certain minority groups in its classes

where there has been serious under-representation in the school and in the

ed

oa Ff ne ena et

Aug. 1979 McDONALD v. HOGNESS 44]

92 Wn.2d 431°

In the second Bakke opinion which supports the U.W.

medical school on this issue, Justices Brennan, White,

Marshall and Blackmun pronounce the Davis program con-

stitutionally valid. In their opinion, the state need only

show the racial criteria (1) serves an important, articulated

purpose, (2) does not stigmatize any discrete group, and

(3) is reasonably used in light of the program's objectives.

Regents of Univ. of Cal. v. Bakke, supra at 361. The

Brennan group believes Davis' goal of admitting students

disadvantaged by effects of past discrimination is suffi-

ciently important. They reasonably read Mr. Justice

Powell's opinion as agreeing this can constitute a compel-

ling purpose. Regents of Univ. of Cal. v. Bakke, supra at

o66 n4%- }

In DeFunis v. Odegaard, 82 Wn.2d 11, 507 P.2d 1169

(1973), this court rejected the argument that a state law

school violated equal protection rights by denying plaintiff

admission, yet accepting ‘minority applicants with lower

objective indicators than plaintiff. We stressed gross under-

representation in law schools and the legal profession in

finding an overriding interest in promoting integration in

public education. We held the interest in eliminating racial

imbalance within public legal education is compelling.

DeFunis v. Odegaard, supra at 33.”

medical profession. . . . The medical school and its faculty have also deter-

mined that some members of minority groups may have sutfered cultural and

educational disadvantages by virtue of their ethnic background, and have

determined that such disadvantages are properly to be considered when eval-

uating the overall qualifications of such an applicant.

(Italics ours.)

McDonald's claim that admissions committee chairman Belknap’s testimony

shows a purpose of serving regional medical manpower needs and not a purpose of

promoting educational diversity is unsupported by the record. The record also

refutes the contention Belknap was not referring to diversity in Powell's broad

sense, which involves consideration of race in conjunction with other attributes.

*The United States Supreme Court granted certiorari, DeFunis v. Odegaard,

414 U.S. 1038, 38 L.-Ed. 2d 329, 94 S. Ct. 538 (1973), but later declared the case

moot and refused to decide the constitutional issue. Defunis v. Odegaard, 416

U.S. 312, 40 L. Ed. 2d 164, 94 S. Ct. 1704 (1974). On remand, a plurality of this

court reaffirmed its previous judgment. DeFunis v. Odegaard, 84 Wn.2d 617, 529

P.2d 438 (1974).

442 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

In the instant case the trial court determined the school

had decided that in order to serve the educational needs of

the school and the medical needs of the region, the school

should seek greater representation of minorities "where

there has been serious underrepresentation in the school

and in the medical profession." Thus, the program furthers

a compelling purpose of eliminating racial imbalance within

public medical education.

Furthermore, the program here meets the additional ele-

ments of the Brennan group's test. The racial classifi¢ation

does not stigmatize any discrete group and is reasonably

used in light of its objectives.

As noted by Mr. Justice Powell in Bak*2 and by this

court in DeFunis, it is not enough that a state can show

that its purpose is substantial or compelling. The use of

race, a suspect classification, must be necessary to the

accomplishment of its purpose. Regents of Univ. of Cal. v.

Bakke, supra at 305; DeFunis v. Odegaard, 82 Wn.2d 11,

32, 507 P.2d 1169 (1973); Nielsen v. State Bar Ass‘n, 90

Wn.2d 818, 820, 585 P.2d 1191 (1978). Though the Davis

plan failed this element of Powell's test in Bakke, he indi-

cated that a program under which race is but one factor in

achieving diversity would survive it. In addition, this court

found necessary in DeFunis a law school admissions policy

which provided that minority applicants were compared to

one another but not with nonminority applicants. Since the

program here does not involve consideration of minority

applicants apart from others, it appears to meet both the

Powell Bakke and DeFunis standards of necessity.

The University of Washington School of Medicine

admissions program survives both the Powell and Brennan

group tests. Moreover, a majority of the Bakke court stated

race may be a factor in a state medical school's admissions

program. Justice Powell joined the Brennan group in

reversing the portion of the California court's judgment

enjoining Davis from considering the race of any applicant.

Regents of Univ. of Cal. v. Bakke, supra at 326. Thus, the

Bakke majority followed the lead of this court which held

ee ee wee

Aug. 1979 McDONALD v. HOGNESS 443

92 Wn.2d 431

in DeFunis that “consideration of race as a factor in the

admissions policy of a state law school is not a per se viola-

- tien of the equal protection clause of the Fourteenth

Amendment." DeFunis v. Odegaard, supra at 31. Alevy v.

Downstate Medical Center, 39 N.Y.2d 326, 348 N.E.2d 537,

384 N.Y.S.2d 82 (1976).

Finally, McDonald asserts that Mr. Justice Stevens’

opinion, in which Mr. Chief Justice Burger, and Justices

Stewart and Rehnquist joined, would not even permit

"racial discrimination" under the Harvard plan. By impli-

cation, in appellant's view the Stevens opinion condemns

the U.W. medical school's program, which also uses race as

one of many admission factors. As indicated earlier, how-

ever, a majority said the Harvard approach is constitu-

tional. Stevens relied exclusively on the federal statute.

avoiding the constitutional issue. The Stevens group held

only that the Davis medical school excluded Bakke from its

program of medical education in violation of section 601,

Title 6 of the 1964 Civil Rights Act (42 U.S.C. $ 2000d). We

think the substantial differences between the Davis and

U.W. programs render the Stevens holding inapplicable.

Here, there was not a quota excluding McDonald from

competing for a certain group of seats.

The University of Washington School of Medicine's

admission policies and procedures survive the Bakke Powell

and Brennan equal protection tests, using race as an

admission factor in a manner permitted under both Bakke

and DeFunis. Accordingly, we hold that the use of race in

these policies and procedures does not offend the equal

protection clause of the fourteenth amendment to the

United States Constitution.

McDonald's second major argument is that the medical

school's admission policies and procedures are arbitrary

and capricious and that their application to him constituted

arbitrary and capricious action. As part of this argument,

he urges that the delegation of authority to the Board of

Regents to set admission requirements denies due process

and violates equal protection rights under U.S. Const.

444 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431 ee rs 3

-~

amend. 14 and Const. art. 1, § 12 because it contains no

standards prescribing how that authority is to be exercised.

Under Barry & Barry, Inc. v. Department of Motor Vehi-

cles, 81 Wn.2d 155, 500 P.2d 540 (1972) and subsequent

cases, the delegation survives our scrutiny.

In Barry & Barry, this court found a constitutional dele-

gation in authority given to the director of the Department

of Motor Vehicles to approve fee schedules and set maxi-

mum employment agency fees. Discarding the requirement

of specific legislative standards, we held:

[T]he delegation of legislative power is justified and con-

stitutional, and the requirements of the standards doc-

trine are satisfied, when it can be shown (1) that the

legislature has provided standards or guidelines which

define in general terms what is to be done and the

instrumentality or administrative body which is to

accomplish it; and (2) that procedural safeguards exist

to control arbitrary administrative action and any

administrative abuse of discretionary power.

Barry & Barry Inc. uv." Department of Motor Vehicles,

supra at 159. .

Applying the first part of the test, the court concluded

that RCW 19.31.070—which provides for the director's

issuance of reasonable rules and regulations to enforce the

Employment Agency Act—was clear in indicating the rules

could be issued administratively, and specifically by the

director of the Department of Motor Vehicles. As to the

second element, we found adequate procedural safeguards

in administrative procedures act provisions providing that

interested parties will be heard before rule adoption and for

judicial review to protect against arbitrary and capricious

administrative action. Noting the power delegated did not

admit of precise standards, we held that the director-pro-

mulgated schedule of employment agency maximum fees

was a valid and constitutional delegation of legislative

power. :

Aug. 1979 McDONALD v. HOGNESS 445

92 Wn.2d 431

[3] Distinguishing Barry & Barry, appellant urges that

here "the legislature has provided no standards or guide-

lines whatsoever, specific, general or otherwise . . ." Con-

trary to McDonald's assertion, the legislature has provided,

within Barry & Barry's meaning, standards which define in

general terms what is to be done and the administrative

body to accomplish it. RCW 28B.10.050 specifically states

the regents shall determine entrance requirements. Under

RCW 28B.10.528, the regents are authorized to delegate to

the university president or his designee any of their powers

and duties.” RCW 28B.20.130 lists—as a general power

and duty of the regents—establishment of entrance

requirements. That section goes on to suggest the manner

in which that authority should be exercised, providing: (1)

completion of examinations may be a prerequisite to

admission; (2) evidence of completion of high school or

other educational institutions whose programs meet univer-

sity approval may be a requirement. As in Barry & Barry,

it is: doubtful whether the task delegated is susceptible to

more precise standards. Requirements in general terms may

suffice when the subject matter will not admit of more spe-

cific standards. Yakima County Clean Air Authority v.

Glascam Builders, Inc., 85 Wn.2d 255, 258, 534 P.2d 33

(1975). ess ,

[4]. The more difficult question is whether the second

element of the Barry & Barry test is met. Dd procedural

safeguards exist to control arbitrary administrative action

and any administrative abuse of discretionary power? In

Barry & Barry, administrative procedures act provisions

ensured interested parties. would be heard before rule

adoption, as well as judicial review against arbitrary and

capricious action. In subsequent cases, we repeatedly have

found adequate procedural safeguards in provisions for

Pursuant to RCW 28B.10.528, the power and duty to establish entrance

requirements has been delegated to the U.‘V. school of medicine. Furthermore,

WAC 478-160-095 states that the dean of the schovul of medicine is responsible for

interpretation and administration of regulations governing admission of medical

students.

446 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

juaicial review of an agency's decision. United Chiroprac-

tors of Wash., Inc. v. State, 90 Wn.2d 1, 578 P.2d 38 (1978);

Polygon Corp. v. Seattle, 90 Wn.2d 59, 578 P.2d 1309

(1978); Spokane v. Spokane Police Guild, 87 Wn.2d 457,

553 P.2d 1316 (1976). |

RCW 28B.19, the State Higher Education Administrative

Procedure Act, applies to the U.W. Board of Regents and

to the medical school but exempts admission policies from

rulemaking provisions, including notice and publication

requirements.” There is not any other provision providing

for judicial review of decisions of the executive committee

of the committee on admissions. Nevertheless, committee

decisions are subject to review as they were in DeFunis and

the present case on the ground the committee acted arbi-

trarily and capriciously. The decisions are also subject to

review for abuse-of discretion. See, e.g., Wilson v. Board of

Governors, 90 Wn.2d 649, 585 P.2d 136 (1978). And see

State ex rel. Bartlett v. Pantzer, 158 Mont. 126, 489 P.2d

375 (1971) (holding denial of admission to state law school

was abuse of discretion). In Spokane v. Spokane Police

Guild, supra, we held that a statute providing for superior

- court review of whether an arbitrator's decision was arbi-

trary or capricious constituted an adequate procedural

safeguard under Barry & Barry. Accordingly, the opportu-

- nity for limited review—even in the absence of a special

statute—suffices.

In. Polygon Corp. v. Seattle, supra, this court looked for

safeguards in the underlying statutes, ordinances and prac-

tices of the City of Seattle. Here a review of medical school

practices shows procedural safeguards. First, basic admis-

sion criteria are published and applied at all levels of the

process. Competitive applicants are subject to three-tiered

“RCW 28B.19.020(2) excludes from the definition of rule any "rules, regula-

tions, orders, statements, or policies relating primarily to ... Standards for

admission; academic advancement, academic credits, graduation and the granting

of degrees”. That provision concludes that “such matters need not be established

by rule adopted under this chapter unless otherwise required by law."

B.S elie Mere teitien ts C5

Aug. 1979 McDONALD v. HOGNESS 447

92 Wn.2d 431 ©

review involving a minimum of several admissions commit-

tee members. At the interview-conference levei, interview-

ers are trained and familiarized with applicant files

beforehand. They are provided with guidelines, including

the admission criteria, and evaluation sheets to ensure

some consistency in the manner in which interviews are

conducted and appraised. These and other school of medi-

cine procedures described below support our holding there

are sufficient procedural safeguards to avoid arbitrary

administrative action and abuse of discretion.

[5] We now turn from.the standards issue to the

broader question of whether the admission policies and

procedures are arbitrary and capricious and whether the

process leading to the denial of McDonald's application was

the same. In DeFunis, plaintiff similarly contended law

school admissions procedures constituted arbitrary and

capricious action. We applied the long-standing test:

Arbitrary and capricious action of administrative bod-

ies means willful and unreasoning action, without con-

sideration and in disregard of facts or circumstances.

Where there is room for two opinions, action is not

arbitrary or capricious when exercised honestly and

upon due consideration, even though it may be

believed that an erroneous conclusion has been

reached.

DuPont-Fort Lewis School Dist. 7 v. Bruno, 79 Wn.2d

736, 739, 489 P.2d 171 (1971).

DeFunis v. Odegaard, 82 Wn.2d 11, 38, 507 P.2d 1165

(1973). Plaintiff must carry the burden of proof on this

issue. State ex rel. Longview Fire Fighters Local 828 v.

Longview, 65 Wn.2d 568, 572, 399 P.2d 1 (1965).

[6] McDonald first states that the published selection

criteria do not provide a standard for admission or rejec-

tion. He singles out for criticism the subjective factors,

motivation, maturity and demonstrated humanitarian

qualities; he argues these are not definable, meaningful

concepts which can be reasonably applied. DeFunis indi-

cates, however, that consideration of subjective factors, or

448 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

factors involving judgmental evaluation, is permissible in

state professional school admissions.

Contrary to McDonald's assertion, the findings ade-

quately support the trial court's conclusion the selection

process is not arbitrary and capricious. As in DeFunis, the

record indicates both the admissions committee and the

interview-conference committee employ predetermined

standards and procedures for selection. Before participating

in an interview-conference, each admissions committee

member serves on the reading committee to acquire experi-

ence in evaluating application files. Application readers

work from a “screening” worksheet, and spend approxi-

mately 20 to 30 minutes evaluating several aspects of each

application: (1) the difficulty of the applicant's undergrad-

uate program; (2) MCAT variables; (3) outside activities;

(4) motivation for medicine; (5) maturity; (6) letters of rec-

ommendation; (7) special considerations, including extenu-

ating circumstances* 3

Before participating in an interview-conference, admis-

sions committee members also attend a training session

conducted by admissions committee chairman Belknap.

During this session they are provided with copies of the

- Association of American Medical Colleges Medical School

Requirements book, the School of Medicine bulletin, a

screening worksheet, guidelines for interviews and a com-

pleted application to review at that session. They also are

instructed on evaluating application files. If a committee

member is absent, an individual meeting is scheduled with

Dr. Belknap which lasts more than an hour.

At the interview-conference level, each trained inter-

viewer is required to read his or her personal copy of each

application including the letters of recommendation, before .

the interview-conference. Each member spends approxi-

mately 30 minutes per review and makes notes on the

application regarding areas for inquiry during the inter-

view-conference. Guidelines given to each interviewer at

each interview-conference session include: (1) a list of

selection criteria; (2) MCAT and GPA mean averages for

Aug. 1979 McDONALD v. HOGNESS 449

92 Wn.2d 431

the previous year's entering class; (3) suggested guidelines

for evaluation of motivation, maturity, humanitarian quali-

ties and candidate strengths and weaknesses; (4) MCAT-

suggested areas of noncognitive assessment; (5) suggested

areas for discussion; (6) suggested areas for observation.

The members of the interview-conference committee rate

the candidate comparatively on the basis of the selection

criteria, the application file and the interview.

McDonald's application was read by Dr. Belknap and a

student committee member and was rated competitive by

both. Subsequently, McDonald was interviewed for 22 min-

utes by an interview-conference committee comprised of

two faculty members and one student. Each interviewer

independently placed McDonald in category 2, indicating

he was a possible candidate "with comparative deficiencies

academically and/or with regard to noncognitive features.”

The interview-conference committee forwarded

McDonald's application to the executive committee. That

committee at its April 30, 1976, meeting voted that all can-

didates not acted upon be considered noncompetitive, sub-

ject to Chairman Belknap's review of the applications of

interviewed candidates remaining. Belknap reviewed the

remaining applications, including McDonald's. He reported

to the committee that in -his judgment there were not any

applicants the committee would be likely to consider more

competitive than those previously admitted, or made alter-

nates, based upon committee guidelines. A May 10, 1976,

letter notified McDonald his application was denied.

The foregoing standards and procedures consistently uti-

lized and. also used in evaluating McDonald's application

cannot be characterized as “willful and unreasoning. with-

out consideration.” or as exercised without “due

consideration."

It is further argued that McDonald would have been

admitted based on his combined GPA and MCAT (“tirst

screen") score but was not because of his score in an inter-

view with no demonstrated validity in measuring the three

450 McDONALD v. HOGNESS his 1979

92 Wn.2d 431

remaining selection factors. As respondent notes, the plain-

tiffs claims in DeFunis were similar. There plaintiff con-

tended that using subjective, nonmathematical factors and

weighing them differently for different applicants arbitrar-

ily denied admission. This court declared that the exercise

of judgment in evaluating an applicant's file is not arbitrar

and capricious action. We explained: .

The fallacy of plaintiff's argu is i

that, but for the special seneslasation gr er

pid on poh pm decisions by the committee would

ematical projections of the Cokie ne math

applicants. Actually, although the PFYA hosed” “ne GPA

and LSAT] was a very important factor, it was not th

sole determinative factor for the group of mudents.

Rather, the commi ili i

point in making “por come eh eure

DeFunis v. Odegaard, supra at 41. |

Here, like in DeFunis, the score based on GPA and

MCAT is not the solé criteria but instead is a starting point

for consideration. Relevant subjective criteria—motivation

maturity and demonstrated humanitarian qualities—are

specified in the medical school admissions book. As in

DeFunis, letters of recommendation and the difficulty of an

applicant's undergraduate program also are considered

Outside activities and extenuating circumstances are fac-

tors. The information in each applicant's file is evaluated

by interview-conference committee members in light of the

specified criteria and is included in their ratings In

DeFunis this court said, "Law school admissions need not

become a game of numbers; the process should remain sen-

Sitive and flexible, with room for informed judgment in

interpreting mechanical indicators." DeFunis v. Odegaard

supra at 42. See also Regents of the Univ. of Cal. v Bakke,

438 U.S. 265, 313-18, 57 L. Ed. 2d 750, 98 S. Ct. 2733

(1978) and DeFunis v. Odegaard, 416 U.S. 312, 340, 40 L

Ed. 2d 164, 182, 94 S. Ct. 1704, 1717 (1974) (Douglas, J.

dissenting) (law school not bound by mechanical criteria).

In short, the fact some qualified applicants are rejected and

Aug. 1979 McDONALD v. HOGNESS 451

92 Wn.2d 431

nonmathematical factors are weighed differently by differ-

ent interview committee members does not show arbitrary

and capricious conduct.

The university has broad discretion in admission dec!-

sions and may use subjective, noncognitive criteria. The

Board of Regents alone is given authority that it may dele-

gate to set admission requirements: Regulations and poll-

cies relating to admissions are exempt from rulemaking

provisions of the State Higher Education Administrative

Procedure Act. Thus, it is evident that the legislature

intended to vest broad discretion in the university on

admission matters.’* Other courts justified nonintervention

both upon a university's bread discretion in admission

decisions and upon an analogy to cases involving academic

standards.” Like the Montana court's stance in State ex

rel. Bartlett v. Pantzer, 158 Mont. 126, 489 P.2d 375

(1971), we generally favor nonintervention in admission

decisions but nevertheless will continue to review them for

arbitrary and capricious action and abuse of discretion.

Finally, McDonald argues that since racially discrimina-

tory criteria are used, the university must demonstrate that

12See Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 348 N.E.2d 537,

540, 384 N.Y.S.2d 82 (1976). ;

3 See, e.g., State ex rel. Bartlett v. Pantzer, 158 Mont. 126, 489 P.2d 375

(1971) (analogy to grade case) and Timmerman v. University of Toledo, 421 F.

Supp. 464 (N.D. Ohio 1976) (there is no reason to distinguish between require-

ments for entry or completion of study).

In Bakke, Mr. Justice Blackmun stressed the universities’ expertise and the

judiciary's comparatively poor training in admissions in reaching his conclusion

that judicial interference must be the exception rather than the rule. Regents of

Univ. of Cal. v. Bakke, supra at 404 (Blackmun, J.). His statements are consistent

with the court's opinion in Board of Curators v. Horowitz, 435 U.S. 73, 55 L. Ed.

2d 124, 98 S. Ct. 948 (1978), where the court rejected a procedural due process

challenge to an academic dismissal for failure to meet academic standards:

Like the decision of an individual professor as to the proper grade . . . the

. determination whether to dismiss a student for academic reasons requires an

expert evaluation of cumulative information and is not readily adapted to the

procedural tools of judicial or administrative decisionmaking.

Board of Curators v. Horowitz, supra at 90.

See also Wong v. Regents of Univ. of Cal., 15 Cal. App. 3d $23, 93 Cal. Rptr.

502 (1971) (court not qualified to pass on attainment of medical student).

452 McDONALD v. HOGNESS Aug. 1979

92 Wn.2d 431

the selection process is a valid predictor of the qualities

sought (the published criteria) and that these criteria are a

valid index to a successful physician. He relies on two cases

interpreting Title 7 of the 1964 Civil Rights Act, which are

concerned with discriminatory employment tests. Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280,

95 S. Ct. 2362 (1975); Griggs v. Duke Power Co., 401 U.S.

424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). There is no

basis for applying these Title 7 cases here. As respondent

points out, they are concerned with employment and do not

set standards for arbitrary and capricious action in medical

school admissions.

Mc))onald has not shown that the policies and proce-

dures of the University of Washington School of Medicine

are arbitrary and capricious. There has not been willful and

unreasoning action, without consideration and in disregard

of facts or circumstances.

Because McDonald is*not entitled to relief, the question

of whether the trial court erred in concluding he is not

entitled to monetary damages has not been addressed.“

The decision of the trial court is affirmed.

Urter, C.J., BRACHTENBACH, DOLLiverR, Hicks, and

WiLuiaMs, JJ., and Henry and Ryan, JJ. Pro Tem., concur.

STAFFORD, J., concurs in the result.

.\“In addition, we have not discussed McDonald's claim that the U.W. medical

school's national recruitment of minority applicants violates WAC 478-160-125,

which before a July 18, 1978, amendment stated the medical school “gives pri-

mary preference in ad’ ‘ssions" to qualified Washington residents. Finding of fact

No. 11, however, states that 120 of 123, or 97.6 percent of the positions available

after the WAMI and other special exclusion, were filled by Washington residents.

APPENDIX B

JUDGMENT OF WASHINGTON SUPERIOR COURT

FOR KING COUNTY

NO. 817562

McDONALD v. HOGNESS

JUDGMENT OF DISMISSAL

THIS MATTER having come on regularly for

trial before the undersigned judge of the above-

entitled court, sitting without a jury, and a trial

having commenced on May 9, 1977 and ending on

May 17, 1977, and the plaintiff having presented

his case in chief, and plaintiff having rested his

case, and the defendants having moved for a dis-

missal of the plaintiff's Complaint, and the court

having orally granted said Motion for Dismissal,

and the court having heard argument and denied

plaintiff's Motion for Reconsideration, and the court

having heretofore entered its Findings of Fact and

Conclusions of Law, now therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that plaintiff's Complaint is dismissed

B-2

with prejudice as to all defendants, and defendants

are awarded their costs and disbursements to be

taxed herein.

DONE IN OPEN COURT this 21 day of

June, 1977.

James J. Dore

Judge

APPENDIX C

FINDINGS OF FACT AND CONCLUSIONS

OF LAW OF WASHINGTON SUPERIOR

COURT FOR KING COUNTY

NO. 817562

McDONALD v. HOGNESS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Commencing on May 9, 1977, at 9:30 A.M., a

hearing was held before the Honorable James J.

Dore, Judge of the above-entitled court, sitting

without jury, and continued through 10:45 A.M.

on May 17, 1977. The plaintiff was represented

by RICHARD B. SANDERS and the defendants

were represented by Slade Gorton, Attorney Gen-

eral of the State of Washington, Steve Milam, Assis-

tant Attorney General, and David L. Martin,

Special Assistant Attorney General.

On June 21, 1977, at 8:45 A.M., a further

hearing was held before the Honorable James J.

Dore, Judge of the above-entitled court, to con-

sider plaintiff's Motion for Reconsideration of this

court's oral decision announced on May 17, 1977.

At that time the court also considered the defen-

dants' presentation of the proposed Findings of

Fact and Conclusions of Law.

C=2

The court having heard the testimony of the

witnesses, having fully considered all the evidence

presented in the presentation of plaintiff's case,

the records and files herein, having rendered its

oral decision on May 17, 1977, and having denied

plaintiff's Motion for Reconsideration, now makes

the following:

FINDINGS OF FACT

I.

Plaintiff is 24 years old, male, single, and of

the Caucasian race. He is a Washington resident

and has been such all of his life. He presently

resides in Bothell, Washington.

Il.

Plaintiff obtained his elementary and secondary

education in the State of Washington graduating

from Inglemoor High School in June, 1971. He

attended the University of Washington commencing

in September, 1971, and at the time of his making

application to the University of Washington School

of Medicine he had a cumulative grade point aver-

age of approximately 3.58 out of a possible 4.0.

Il.

Defendants are John R. Hogness, President of

the University of Washington, Dr. Robert L. Flen-

naugh, George V. Powell, James R. Ellis, R. Mort

Frayn, Mrs. William H. Gates, Jack G. Neupert,

and Robert S. Philip comprising all the members of

C=3

the Board of Regents of the University of Washing-

ton at the time this action was commenced on Sep-

tember 13, 1976; Dr. Robert Van Citters, Dean of

the University of Washington School of Medicine,

Dr. Benjamin H. Belknap, former Chairman of the

Admissions Committee and former Assistant Dean

for Admissions of the University of Washington

School of Medicine, W. W. Washburn, Registrar of

the University of Washington, and the University

of Washington, a state-owned and state-operated

educational institution.

IV.

Governance of the University of Washington

and all of its various schools, colleges, and depart-

ments is vested by the legislature in a seven-

member Board of Regents, appointed by the gov-

ernor and confirmed by the state senate. The

Board of Regents in turn has appointed a pres-

ident of the University, who serves as the chief

executive officer of the institution. The Regents

have delegated authority for the establishment of

admissions standards and procedures to the Pres-

ident of the University, who, in turn, has further

delegated this responsibility to the deans of the

various schools and colleges.

In the University's School of Medicine, the

delegated responsibilities for medical school student

admissions are carried out under the general au- -

thority of the dean of said school, by a faculty

C-4

committee on admissions, which was chaired by an

Assistant Dean for Admissions, Dr. Benjamin H.

Belknap. The selection process is handled by an

Executive Committee of the Committee on Admis-

sions, also chaired by Dr. Benjamin H. Belknap,

the Assistant Dean for Admissions, together with

several separate interview-conference committees.

The Committee on Admissions is the largest stand-

ing committee of the medical school, and, for the

entering 1976 class (E-76) admissions year, it was

composed of 24 full-time members of the School of

Medicine faculty (14 from clinical departments and

10 from basic science departments), 7 practicing

physicians and four medical students from each

class for a total of 47 members. The final admis-

sions decisions are made by the Executive Com-

mittee of the Committee on Admissions, consisting

of the Assistant Dean for Admissions, members of

the medical school faculty and a student. Members

of the Executive Committee generally serve as chair

persons of the _ interview-conference committees

which met on an average of four afternoons weekly

from November of 1975 through April, 1976, in

connection with the selection of the E-76 class.

Defendant Dr. Benjamin H. Belknap was at all times

material to this suit, the Chairman of the Committee

on Admissions and Assistant Dean for Admissions

at the University of Washington School of Medicine.

= a Fea a ome

C-5

¥

Faculty effort expended in committee work

associated with the selection of the members of the

E-76 class was almost 4,500 faculty hours (with

nearly 2,000 hours devoted solely to interview-con-

ference committee work and the interviewing of

applicants). That amount of time represents a

commitment which exceeds the effort that will be

expended by the School of Medicine faculty in

teaching the members of the E-76 class during their

first two years of medical school.

Vi.

Both nationally and locally, far more individ-

uals qualified for admission as medical students

apply than can possibly be accepted. On a nation-

al basis for the E-76 class approximately 42,500

individuals filed applications for admissions to the

nation's medical schools, approximately 15,700 who

are enrolled and approximately 26, 800 were not

accepted for admission. Of the latter group, it

was estimated that nearly half or 13,400 could be

considered fully qualified for the study of medi-

cine. There are 117 medical schools presently

established in this country. [Deleted by trial

judge]: Fe-aceomnedate-the-arnual-413,400--qual-

ifted--appticants--who--are--16t - achnitted--te-medicat

schoots;--ar- additional -100--medical- -schools--would

heave--te--be--eonstrueted-and-staffed-at--a-cost-of

$+00-000-000-per -—-mediceat-school-and-a--waH--oF-10

C-6

years--before--sach—such__new -school-could--become

fHy--operationat.

Vil.

For the E-76 class at the University of Wash-

ington, 1,703 individuals applied for a medical

school class which numbers only 175 students. Of

those 175 positions, 50 positions were targeted for

allocation to qualified residents of Alaska, Montana,

and Idaho. The allocation of these positions to

Alaska, Montana, and Idaho residents is as a result

of the formalization of the WAMI (Washington, Mon-

tana, and Idaho) program, which permits the use

of facilities at the University of Washington, Uni-

versity of Alaska, Montana State University, the

University of Idaho, and Washington State Univer-

sity for a portion of the training of part of the

Students admitted to the University of Washington

School of Medicine. This program in regionalized

medical education has been authorized by the legis-

lature and, pursuant to agreements entered into

with each of the participating states and their par-

ticipating institutions, permits additional seats in

the school to be filled by residents of the partic-

ipating states at a cost paid for entirely by the

participating states, and with the aforementioned

use of educationa! facilities within those states.

Two positions were allocated to Medical Scientist

Training Program (MSTP), the M.D.-Ph.D. pro-

gram, of the School of Medicine. Of the remaining

ik asia « tot

C-7

123 positions, 120 or 97.6% were Washington res-

idents.

Vill.

The selection process at the University of

Washington School of Medicine is a continuing one,

commencing no later than September ist of each

year and ending following completion of the pro-

cess of composing an entire first year medical

school class, usually in June or July of the follow-

ing year. The admissions year for the E-76 class

was considered formally closed in June of 1976 al-

though the final annual written report to the med-

ical school Executive Committee by the chairperson

of the Committee on Admissions was submitted in

September, 1976. Admissions activity, however,

occurs on a year-round basis.

IX.

Basically, the Committee on Admissions func-

tions simultaneously at three levels in selecting a

class. Generally, the paper credentials of each

applicant are reviewed independently by two mem-

bers of the Admissions Committee, each making

independent assessments as to the competitiveness

of the candidates. Those candidates considered

potentially competitive for the positions available

then are invited to meet with an interview-confer-

ence committee consisting of three to five members

of the Committee on Admissions in an interview-con-

ference. Interview-conference committees evaluate

C-8

the candidates' paper credentials and the candidates

as they participate in the interview conference,

and forward their evaluations to the Executive Com-

mittee of the Committee on Admissions as a part of

each candidates' total application, and recommends

either: (a) that the applicant be reinterviewed;

(b) that his application be deferred for further

consideration; (c) that the applicant is noncompeti-

tive, or (d) that the file be referred for possible

review by the Executive Committee. The Executive

Committee, which reviews applicants in the context

of the total applicant pool, makes final determina-

tions regarding offers of acceptance.

X.

The specific steps in the selection process are

as follows:

(a) The School of Medicine participates in

the application process conducted by the American

Medical Callege Application Service (AMCAS). The

applications received by the University include

such information as an undergraduate transcript,

grade point average, scores obtained on the re-

quired Medical College Admissions Test (MCAT),

an applicant's self description, autobiographical

data provided by applicants, letters of recommenda-

tion, as well as such other information as the appli-

cant may wish to submit. Upon receipt of the

AMCAS applications at the School of Medicine, the

committee staff prepared a folder tor each applicant

a dae Ln Beata alli ail tl

rie DARL ERS Din Sel lille oe Wi ea

A an AIR ie ealinn ee Diehl ob A RL ctr a Wt tn inte Ne «es

C-9

from Washington, Alaska, Montana, and Idaho, and

regardless of residence M.D.-Ph.D. candidates and

those designating themselves as Black Americans,

American Indians, and Mexican Americans. No

folders are prepared for other applicants. The

committee staff acknowledges to the applicant re-

ceipt by the School of Medicine of the AMCAS appli-

cation, indicates what materials are lacking (usually

letters of recommendation and/or autobiographical

_ statements) before an application can be considered

complete, and requests additional submission by

the candidate of a form indicating from whom letters

of recommendation may be expected. The cover of

each folder is used to record dates of receipt of

materials and of mailing of notifications, authors of

letters of recommendation, residency designated,

etc. and itself serves in part as a flow sheet of an

application from time of receipt to final action.

The candidate again is notified when an application

is considered complete and ready for committee

review.

(b) Calculations of "first screen" score.

Upon receipt of AMCAS application, the Committee

on Admissions staff calculates from the academic

record and MCAT scores a "first screen" score

which (1) reduces to a single number and the many

components of traditional GPA and MCAT reporting,

(2) gives increasing weight to a candidate's aca-

demic performance as he or she has progressed

C-10

through the undergraduate years, and (3) empha-

sizes, by weighing the mathematics and science

portions of the MCAT. The formula for this calcu-

lation is as follows:

(Ist yr. GPA) + (2nd yr. GPA x 2) +

(3rd yr. GPA x 4) = X

sum of undergraduate years

[(VA percentile) + (Q.A. percentile x 2) +

(GI percentile) + (SC percentile X 4 x .005 = Y

X + Y = First Screen Score (FFS)

Such scores are reported on a scale of 0 to 8 (0 to

4 for adjusted GPA) + (0 to 4 for converted and

weighted MCATs)

In plaintiff's case, the FSS of 7.22 was de-

rived by the following calculation:

Freshman Cum GPA 3.87 2 wo, OF

Sophomore Cum GPA 3.44 x 2 = 6.88

Junior Cum GPA 3.7) &% 3 & 37,33

6 21.48 = 3.58

Verbal MCAT % 97x 1= 97

Quantitative MCAT &% 69 x 2 = 138

General Infor % 9ix is 91

Science MCAT % 95 x 4 = 380

760 x .005 = 3.53

First Screen 7.11

(c) Reading Committee. A minimum of two

members of the Committee on Admissions independ-

ently assess the completed application of each can-

didate referred for reading. The completed appli-

cation to be reviewed includes not only all materials

contained in the AMCAS application, but also an

C-11

autobiographical statement, if a candidate chooses

to use the "personal comments" section of the

AMCAS for other purposes, and letters of recom-

mendation. All correspondence, including "update"

letters and/or supplemental transcripts, as well as

all materials relating to previous applications, are

included in the materials presented for review. A

committee staff has previously indicated with arrows

approximate points on the reported academic records

at which MCATs have been taken.

In general, applications are to be assessed on

the basis of selection factors which have been pub-

lished in the Medical Schools Admissions Require-

ments book in the University of Washington School

of Medicine bulletin. These selection factors are

that.

"Candidates are considered on the basis

of academic performance, medical apti-

tude, motivation, maturity, and demon-

strated humanitarian qualities. Exten-

uating background circumstances are

considered as they relate to these selec-

tion factors."

In more specific terms, readers are provided with

worksheets which guide their evaluations in as-

sessing the difficulty of an applicant's program,

MCAT variables, outside activities, motivation for

medicine, letters of recommendation, and exten-

uating circumstances. Readers are asked to

"score" almost all of the variables described. Such

C-12

scoring is asked of the readers in order that they

commit themselves on each particular item of

analysis, and also to provide a "total score" mean-

ingful to the individual reader in the context of

the other applications he or she has evaluated in a

similar fashion. Thus, the total score based on

review of paper credentials is used only to assist

the reader in reaching an overall conclusion as to

whether a candidate appears to be unquestionably

competitive, competitive, possibly competitive, un-

likely to be competitive, or essentially non-competi-

tive.

If the independent evaluation of paper creden-

tials differs markedly between the two assigned

readers, a third member of the Committee on Ad-

missions will independently assess the file. Those

candidates whose paper credentials suggest that

they are "unquestionably competitive" or "competi-

tive" are usually invited to meet with members of

the committee in the interview conferences. Of the

1,703 applications received for the E-76 class,

approximately 816 were referred to the reading

committee. Of these, interviews were recommended

for and granted to 546 applicants considered poten-

tially competitive for positions available based on

the analysis of the reading committee. Scheduling

of such interviews was arranged by Admissions Com-

mittee staff.

mt sae he

C-13

(d) Interview-Conference Committees. Ex-

cluding early decision program interviews, which

must be conducted during the month of September,

interview-conference committees met on an average

of four afternoons weekly between November 25,

1975 and April, 1976, in connection with the selec-

tion of the E-76 class. An average of four to five

candidates were seen each afternoon. The number

of committee members present at each such inter-

view-conference for the E-76 year varied from three

to four with a few candidates having five committee

members. Admissions committee members present

at each such conference have had prior access to

anc studied for approximately half an hour each in

advance, photocopies of AMCAS applications, auto-

biographical statements and letters of recommenda-

tion usually provided to the conference members

four to seven days prior to the interview-confer-

ence session. Chairpersons of each interview-con-

ference also have at their disposal each applicant's

complete file. A brief committee discussion is gen-

erally held just before inviting a candidate to join

the conference.

(e) A candidate's time with the committee

begins in the early afternoon when all of the can-

didates to be.interviewed that particular day meet

in the interview-conference room with the Chairman

of the Interview-Conference Committee and are

provided a brief orientation as to the nature and

C-14

structure of the interview-conference. Also during

that initial orientation the order in which the appli-

cants will be interviewed is determined with con-

sideration being given to class schedules and out-

side commitments of the applicants. A candidate's

time with the interview-conference committee aver-

ages approximately 20 to 30 minutes. During this

time an attempt is made to evaluate the candidate

again in terms of published selection factors as

well as to attempt to identify specifically obvious

strengths and potential weaknesses. Members of

the interview-conference committee are provided at

each session with written guidelines and forms for

comments. During and or cfter the time spent

with the candidate, each admissions committee mem-

bers is asked to make written narrative comments

on the appropriate place on the forms provided.

[Deleted by trial judge]: -+-Re-comments-placed-on

these -ferms--as--wel-as- the -candidate's- -rankirgs-i9

tre-epiniorn-—ef-eaeh-+ndividuat-nierview-coer ference

eommittee --member--are-made-by-the--comanttee-in=

dependernt+y--of-eaeh- other.

(f) After the candidate has been excused,

each member present individually and independently

places the applicant in one of four categories as a

potential candidate for admission to the University

of Washington School of Medicine. These categories

are as follows:

a saa a one

‘pints ak mbeiete ieee

C-15

Outstanding. No apparent

deficiencies either academically

or as prospective health care

worker. High probability of

making an excellent physician

and scholor (Top 10%).

Acceptable candidate, with no

deficiencies that aren't balanced

by other abilities. If admitted,

probably would be an average

medical student at the Univer-

sity of Washington.

Possible candidate, with compar

ative deficiencies academically

and/or with regard to non-

cognitive features.

Unacceptable candidate. Spec-

ific deficiencies. Concern over

career choice and/or ability to

complete medical training with-

out academic or emotional dif-

ficulty.

After the completion of these forms by the

individual members of interview-conference com-

mittee, and after full committee discussion of each

candidate, a summary comment is prepared by the

chairperson and a conference disposition (non-com-

petitive, defer for a variety of reasons, reinterview

or executive committee review) is agreed upon.

The various independent categorizations and narra-

tive comments, as well as the summary, then for-

maitly are made a part of each interviewed appli-

cant's file.

C-16

(g) Preparation of Skeletal Consideration List.

Following each interview-conference, the committee

staff calculates an average of the ratings given the.

candidate by the individual committee members

based on a scale of 4 for a rating of OUTSTAND-

ING, downward through 1 for a rating of UN-

ACCEPTABLE candidate. The ratings to be aver-

aged and the average ranking thus obtained are

entered on the appropriate portion of the inter-

view-conference summary.

The skeletal consideration list is prepared and

updated by committee staff to establish a rough

order or agenda for consideration of candidates by

the executive committee of the admissions committee

for its meetings. Placement on the skeletal con-

sideration list is determined by one's total score

grouped in categories 4, 3, 2, and 1, correspond-

ing to the evaluations of the interview-conference

committee. Those candidates receiving an- average

interview conference score of 3.5 or better would

be grouped in category 4 in order of their total

score which is the sum of the first screen score

and the interview-conference score. Category 3

would be composed of those candidates whose inter-

view-conference scores average between 2.5 and

3.5. Category 2 encompasses candidates with inter-

view-conference scores of 1.5 to 2.5, and cate-

gory 1 lists candidates whose average interview-

C-17

conference score was less than 1.5. _ Plaintiff's

position on the skeletal consideration list was at

the level or position of number 237. Because many

individuals have identical total scores within each

category, ties for skeletal consideration list evalua-

tion occur. In reality, when corrected for "ties"

the names of more than 237 other candidates,

appeared above the plaintiff on the final skeletal

consideration list. As a result, of the 546 candi-

dates interviewed, more than 300 have a higher

placement than the plaintiff on the skeletal consid-

eration list. The listing for each candidate on the

skeletal consideration list included for all candidates

components of the total score, name, residence,

self-description, date of the interview-conference,

identification of the committee involved, individual

assessments of reading committee members, individ-

ual ratings by interview conference committee mem-

bers and any final action taken. The skeletal con-

sideration list served as a rough agenda for meet-

ings of the executive committee with regard to

selection. For each meeting of the executive com-

mittee the skeletal consideration list is revised and

updated to reflect the results of the most recent

interview-conference committee actions.

(h) Various appendixes to the basic skeletal

consideration list include listings of those for whom

proxy or substitution interviews have been pro-

vided; those applying from the states of Alaska,

C-19

C-18 |

the member of the executive committee (or substi-

Montana, and Idaho; those applying under the com- tute) responsible for that particular interview leads

bined M.D.-Ph.D program (MSTP); and those in the discussion of that individual's application.

specific two-on-one and one-on-one interview situa-

Ok ne ee oe

After discussion of a candidate, the committee votes

© nema his Ks

tions--all cross-referenced on the basic skeletal | a disposition (accept, hold for later comparison,

consideration list where appropriate. defer for other information, reinterview, or non-

(i) Executive Committee (EXCOM). The ex- | competitive). The disposition and its date are

ecutive committee of the Committee on Admissions | recorded on an executive committee review form.

is composed of six members. Five of the executive | At each meeting of the executive committee

committee members served as chairpersons of the conducted either on a monthly or semi-monthly

regular interview-conference committees, including basis, application files of candidates are reviewed

Dr. Belknap. One member of the committee was a | by the executive committee. It was the practice of

medical student. The Assistant Dean for Admis- | Dr. Benjamin H. Belknap to take to the executive

sions, Dr. Belknap, is the chairperson of this com- committee meetings a number of application files of

mittee. the candidates for admission which was approx-

The executive committee makes policy decisions imately two to three times the number of positions

with regard to admissions and makes decisions con- | to be filled at the particular executive committee

cerning acceptances to the class. Aside from deci- meeting. The number of positions to be filled at

sions under the early decision program, which must each meeting was generally determined on the basis

be made by September 1, the executive committee | of the percentage of candidates that had been inter-

attempts to abide by the uniform acceptance dates viewed at that time.

of the Association of American Medical Colleges on The records of the executive committee meet-

December 15, January 15, February 15, March 15, 2 ings that were submitted into evidence reflect the

and April 15, and thereafter until a class is filled. date of the meetings, the length of the meetings,

As previously indicated, the executive committee the percent of the candidates to be interviewed

uses the skeletal consideration list as an agenda that had been interviewed as of that date, and the

for establishing the rough order in which it eval- number of acceptances authorized. Generally they

uates individual candidates untii such time as the reflected the following information:

class is filled. When a candidate's name is reached,

a thas

C-20 C-21

ee teneth dereent of Approximate the School of Medicine at the University of Washing-

of of Time Candidates Acceptances Total to ton, 1,043 applicants were under consideration for

Meeting (hours) Interviewed Authorized wate admission. An applicant received consideration for

9/26/75 2 Early Decision 20 | admission if he or she was a resident of the states

a of Washington, Alaska, Montana, or Idaho. Appli-

12/8/75 61/3 33% 25 45 cants who were Black Americans, American Indians,

1/15/76 5 3/4 54% 33 78 Chicanos, or applicants for the "Medical Scientist

2/12/76 41/2 70% 15 93 Training Program" (MSTP) were considered for

2/24/76 41/2 90% 15 108 | admission regardless of their state of residence.

3/11/76 41/2 90% 19 127 | Of these 1,043 candidates, all those with first

3/29/76 41/2 94% 15 142 | screen scores above a level identified as four stan-

4/15/76 61/2 +/- 100% 18 160 | dard deviations below the mean first screen score

4/28/76 5 3/4 17 177 of the 1975 entering class for the School of Med-

4/30/76 9 100% 8 185 ! icine were seriously considered. These 816 can-

6/8/76 3 100% 1 186 | didates were asked to submit supplemental materials.

7/16/76 381 3/4 100% 1 187 | 546 of the 816 seriously considered candidates were

| considered potentially competitive by the reading

| committee for the positions available and were inter-

Approximately 54 percent of the interviews viewed. 175 applicants were expected to be mem-

had been completed prior to January 15, 1976. bers of the E-76 class, with 18 hoiding positions

Plaintiff's interview was conducted on January 30, on the alternate list.

1976, and by February 12, 1976, approximately 70 In the E-76 class, 120 students were from

percent of the interviews had been completed. Washington, 10 were from Alaska, 20 were from

XI. | Montana, 20 were from Idaho, and 5 were from

Of the total number of 1,703 applicants to the | other states. Of the 175 members of the £-76 class,

University of Washington School of Medicine for the ; 4 were Black Americans, 1 was an American Indian,

entering class of 1976, 471 were from Washington and 1 was a Chicano. There were 1,300 male appli-

28 from Alaska, 93 from Montana, 67 from Idaho, cants of which 134 were accepted or approximately

1,031 from other states, and 13 foreign residents. 10 percent. There were 413 female applicants of

Of the 1,703 persons that applied for admission to

C-22

which 41 were accepted, also approximately 10 per-

cent.

Excluding the 50 positions allocated for Alaska,

Montana, and Idaho students, and the two positions

awarded to "Medical Scientist Training Program"

(MSTP), there were 123 positions. 120 of these

positions, or 97.6%, were filled by Washington

residents.

XII.

The plaintiff's application file was first eval-

uated on January 18, 1976, by Dr. Benjamin H.

Belknap serving in his capacity as a member of the

reading committee of the committee on admissions

and Dr. Belknap completed his three-page screen-

ing worksheet by marking the section entitled over-

all analysis that the plaintiff was “competitive."

One of the comments made by Dr. Belknap under

the general comments section of the screening work-

sheet about the plaintiff was "no question he has

the smarts." The plaintiff's file was next eval-

uated on January 19, 1976, by Leigh McBride, a

medical student. Her independent analysis placed

the plaintiff in the "competitive" category. Accord-

ingly, committee staff, under the date of January

20, 1976, invited plaintiff McDonald to an interview-

conference scheduled for January 30, 1976, at

1 P.M. Mr. McDonald appeared on January 30,

1976, and met with an interview-conference com-

mittee chaired by ULavid Lagunoff, M.D., Professor

C-23

of Pathology, James C. Whorton, Ph.D., Assistant

Professor of Biomedical History, and James Edstam,

a fourth year medical student who has since re-

ceived his M.D. degree. Committee records indi-

cate that the interview portion of the conference

lasted 22 minutes.

Drs. Lagunoff, Whorton, and Edstam each

independently rated the plaintiff as a possible can-

didate with comparative deficiencies academically

and/or with regard to non-cognitive features with

Dr. Lagunoff rating the plaintiff slightly higher,

but still in the same category. Accordingly, com-

mittee staff assigned numerical scores to the can-

didates' ratings and the plaintiff by this means

was recorded as having a 2.5 score from Dr. Lag-

unoff and a score of 2.0 from Drs. Whorton and

Edstam. The plaintiff's interview-conference score

was -determined by averaging the three separate

scores and was a 2.17. The interview-conference

committee agreed that the appropriate disposition

was to forward the application to the executive

committee.

XIII.

At its meeting of April 30, 1976, which lasted

for some nine hours, the executive committee voted

that all candidates not otherwise acted upon be

considered noncompetitive for the class entering in

the fall of 1976, subject to the chairman's repeat

review of applications of all remaining interviewed

C-24

candidates. This review was carried out by Dr.

Belknap between April 30, 1976 and May 9, 1976.

The plaintiff's application was reviewed by the

chairman prior to May 10, 1976, and subsequent to

that time the chairman reported to the executive

committee that his final review had been completed,

and that in his judgment, although those considered

included many qualified for the study of medicine,

there were none the committee would be likely to

consider more competitive than those previously

admitted to the E-76 class, or placed on its alter-

native list, based upon the guidelines used by the

committee. Mr. McDonald was notified under date

of May 10, 1976, that his application for admission

to the Schoo. of Medicine was denied.

XIV.

Alaska, Montana, and Idaho have no medical

schools. Under the WAMI program, each state has

contracted with the University of Washington for a

certain number of seats in each entering medical

school class at the University of Washington. The

applicants from each of these states compete in

separate applicant pools from seats allotted to their

respective states; however, the University of Wash-

ington School of Medicine is not required to fill all

of the seates contracted for, if there are not enough

qualified applicants from a particular state. Fund-

ing is received by the University of Washington

from Montana, Alaska, and Idaho for those seats in

_—

eer ree ave oes _— :

C-25

each entering medical school class which are allotted

to Montana, Alaska, and Idaho. The remainder of

the funding of the medical school is 30% from the

State of Washington and 70% from the Federal gov-

ernment.

XV.

Consistent with overall University of Washing-

ton policy, the University's School of Medicine and

its faculty have determined that in order to best

serve the educational needs of the medical school

and to better serve the medical professional needs

of this region, it is essential that the School of

Medicine should seek greater representation of cer-

tain minority groups in its classes where there has

been serious under-representation in the School

and in the medical profession. The school and its

faculty have further determined that the minority

groups most seriously under-represented in the

school and in the profession in the region are

Black Americans, Chicanos, and American Indians.

To alleviate this imbalance in the medical school

and the medical profession in this region, it is

necessary to recruit qualified applicants of qualified

minority applicants from within Washington and the

WAMI region is insufficient to achieve any marked

redress of this under-representation. The medical

school and its faculty have also determined that

some members of minority groups may have suffered

cultural and educational disadvantages by virtue of

C-26

their ethnic background, and have determined that

such disadvantages are properly to be considered

when evaluating the overall qualifications of such

an applicant. Recent estimates place the number

of minority physicians in the State of Washington

at 3 Chicanos, no American Indians, and 16 Black

physicians.. There are approximately 80,000 Black

Americans residing in the State of Washington,

approximately 80,000 Chicanos in the State of

Washington, and a substantial population of Amer-

ican Indians.

XVI.

The University's School of evaluates its indivi-

dual applicants for admission without regard to

their sex. Ten percent of the males who applied

and 10 percent of the females who applied were

accepted.

XVII.

The School of Medicine gave no separate con-

sideration nor separate treatment to Black American,

Chicano, and American Indian applicants that were

interviewed. The fact that the applicant was a

member of a minority race was considered by the

medical school.

XVIII.

Plaintiff, like many other applicants who were

unable to gain admission to the University of Wash-

ington School of Medicine, was not unqualified for

medical school attendance. Plaintiff was in that

———s

C-27 ;

group of qualified candidates whose overall cre-

dentials were of average quality in comparision

with those of the many candidates with whom he

was in competition for the limited number of posi-

tions available. Under the sophisticated selection

system used by the medican school he would not

have been admitted even if all six of the minority

applicants were removed. [Deleted by trial judge]:

Mr---MeBenetds-pesition--on-the-skeletat+-considera—

ten--list--was--suffieient y--far-<down--that-—he--stit+

woutd--not--have-beerr-admitted: Plaintiff McDonald

was not on the designated alternate list for admis-

sion to the medical school.

XIX.

The University of Washington School of Med-

icine admissions process is a sophisticated system

for interview processing and finally selecting can-

didates to their medical school. The Assistant

Dean, Dr. Belknap, spent virtually all his activity

working in this area, attending national conferences

and meeting with other knowledgeable people in the

field of medical school admissions. The admissions

process used for the E-76 class was the product of

an evolution of admissions practices over a number

of years. A major revision of the admissions pro-

cess was initiated and coordinated by Dr. Benjamin

H. Belknap in the fall of 1974. As a result of

that revision in November of 1974, proposed guide-

lines for the interview-conference committee were

C-28

established which contained six areas of direction:

(1) selection factors; (2) means for E-75 entering

class; (3) some suggested guidelines for evaluation

of (a) motivation; (b) maturity; (c) humanitarian

qualities; (d) candidate's strengths and weaknesses;

(4) MCAT suggested areas of non-cognitive assess-

ment; (5) suggested areas for discussion with appli-

cants, and (6) some suggested areas for observation

during interview. The language for those guide-

lines was derived in part from information from the

Association of American Medical Colleges, from

national conferences attended by Dr. Belknap,

from information from psychiatrists from the Depart-

ment of Psychiatry of the School of Medicine,

national publications and studies reviewed by Dr.

Belknap, as well as former members of the school

of Medicine's admissions committee and the School's

assistant attorney general.

In addition to the formulation of the guidelines

used for the E-76 class, the screening worksheet

was also formulated in the fall of 1974, and the

basic forms for rating of the candidates by the

members of the interview-conference committee as

well as the interview-conference summary sheet

were also developed in November of 1974, and re-

vised in November, 1975.

XX.

Each member of the reading committee when

reviewing the application files of candidates using

C-29

the screening worksheet spent approximately 20 to

30 minutes per application conducting that indepen-

dent review. Each member of the interview confer-

ence committee spends approximately 30 minutes

reviewing their own personal Xerox copy of the

candidate's application file the day before the inter-

view-conference making notes on that copy of var-

ious areas for inquiry during the interview-confer-

ence. Prior to the interview portion of the confer-

ence, the member's of the interview-conference com-

mittee briefly discussed the information contained

in the candidate's application file, and indicate

areas of concern and possible directions for inquiry

during the interview portion of the conference.

As a general practice at the conclusion of the

interview, the members of the conference conmittee

excused the candidate from the conference and

independently complete their individual rating forms

of the candidate. Discussion is then directed by

the chairman and the chairman of the interview-con-

ference committee during discussion with the other

committee members, completes the interview confer-

ence committee summary sheet setting forth gen-

erally the conclusions of the interview conference

committee.

XXI.

The members of the admissions committee prior

to their participating in the interview conference

committee attend a training session conducted by

C-30

Dr. Belknap during which time they are provided

with copies of the Association of American Medical

Colleges Medical School Requirements book, the

School of Medicine bulletin, the sample screening

worksheet, a copy of the guidelines which are re-

turned at the end of the meeting, a completed appli-

cation to review at that particular meeting, and

during that meeting they are given direction in the

methods of evaluating the application files of candi-

dates for admission to the medical school. If an

individual was unable to attend the entire meeting,

there would be an individual meeting scheduled

with Dr. Belknap which would last for over an

hour, during which time the same material discussed

in the general meeting would be discussed by Dr.

Belknap and the committee member. The physician

and student members of the admissions committee

have all received extensive training, both in terms

of lectures and practical experience in interviewing

during the course of their studies in medical school.

The Ph.D. members of the admissions committee

are all full-time faculty members of the School of

Medicine and have extensive and frequent contact

with medical students through their teaching in the

School of Medicine. Prior to participating in an

interview conference, each member of the admis-

sions committee participates in the reading com-

mittee and gains experience in evaluating of appli-

cation files through the use of the screening work-

C-31

sheet in evaluating applicants' records as a part of

the reading process. [Deleted by trial judge]:

Members--of--the-admissions--eommittee-prier-te-their

-ftH+-participation-in-an-daterview-conference attend

i -entire-imterview--conmference-session-for one full

afterneer--and--observe--and-participate-in-four_to

frve- actuat-7tnterviews--of--medieat scheel-apptlcanis

though --not--making-out--evaluations..of those appli-

cants--prtor -to-thetr-participetion-irr -an-interview

corrference--committee -as--arr-acting-member-of- that

tntervtew-conference- committee:

At the commencement of the interview-confer-

ence committee meeting, each member of the inter-

view-conference committee is provided with a red

folder which contains attached to each of the in-

terior sides of that red folder, a copy of the pro-

posed guidelines for the interview conference com-

mittee for E-76 and references made to those guide-

lines during the course of interview conference

committee meetings. The members of the interview-

conference committee rate the candidates compara-

tively on the basis of the selection factors of the

University of Washington School of Medicine, on

the information that they have been provided by

the candidate through his or her application file

and through the discussion which takes place dur-

ing the interview portion of the interview-confer-

ence committee meeting.

C=-32

XXII.

No substantial evidence of monetary damages

was presented by plaintiff, and plaintiff's claim for

monetary damages is based on speculation and con-

jecture.

From the foregoing FINDINGS OF FACT, the

court now makes the following:

CONCLUSIONS OF LAW

F

Under RCW 28B.10.050 and 28B.20.130(3) the

power and duty to establish and determine entrance

requirements for admission of students to the Uni-

versity of Washington School of Medicine is vested

in the Board of Regents of the University of Wash-

ington. The delegation of a part of these powers

and duties to the dean and faculty of the School of

Medicine of the University of Washington is author-

ized by RCW 28B.10.528.

in

The promulgation and application of the admis-

sions policies of the University of Washington School

of Medicine constitute discretionary action by a

duly authorized administrative body of the State of

Washington.

Hl. ;

The 1976 admissions decision regarding plain-

tiff's admission to the University of Washington

School of Medicine was not arbitrary or capricious

or violative of plaintiff's constitutional rights.

C-33

IV.

The admissions policies and procedures of the

University of Washington School of Medicine do not

discriminate against applicants because of their

sex. As applied to the plaintiff, the admissions

policies and procedures did not discriminate against

the plaintiff on account of his sex.

Vv.

The admissions policies and procedures of the

University of Washington School of Medicine do not

discriminate against applicants because of their

race. As applied to the plaintiff, the admissions

policies and procedures did not discriminate against

plaintiff on account of his race.

Vi.

The admissions policies and procedures of the

University of Washington School of Medicine do not

invidiously discriminate against applicants on the

basis of their residence. As applied to the plain-

tive, the admissions policies and procedures did

not invidiously discriminate against the plaintiff on

account of his residence.

Vil.

The admission policies and procedures of the

University of Washington School of Medicine do not

discriminate against applicants because of their

sociological, economic, or political beliefs. As

applied to the plaintiff, the admissions policies and

procedures did not discriminate against the plaintiff

4

C-34

on account of his sociological, economic, or political

beliefs.

Vill.

The admissions policies and procedures of the

University of Washington School of Medicine were

developed and promulgated in accord with the dis-

cretion allowed to the defendants herein, said

policies and procedures were fair and reasonable,

and are not arbitrary or capricious. As applied to

the plaintiff, the admissions policies and proce-

dures used in evaluating the plaintiff's application

to the 1976 entering class of the University of Wash-

ington School of Medicine were fair and reasonable

and did not constitute arbitrary or capricious con-

duct on the part of any defendents herein.

IX.

The plaintiff is not entitled to an order direct-

ing defendents to admit and enroll plaintiff in the

University of Washington School of Medicine.

X.

The plaintiff is not entitled to receive any

monetary damages from any of the defendents herein.

XI.

The defendants are entitled to a judgment of

dismissal with prejudice of the complaint of the

plaintiff, and defendents are entitled to recover

their costs and disbursements herein to be taxed.

DONE IN OPEN COURT THIS 2nd day of June, 1977.

James J. Dore, Judge

APPENDIX D

MANDATE OF WASHINGTON SUPREME COURT

SUPREME COURT NO. 45864

KING COUNTY NO. 817562

COURT OF APPEALS NO. 5788-1

The State of Washington to: The Superior Court

of the State of Washington in and for King County

This is to certify that the opinion of the

Supreme Court of the State of Washington filed on

August 2, 1979, became the decision terminating

review of this court in the above entitled case on

October 31, 1979. This cause is mandated to the

superior court from which the appeal was _ taken for

further proceedings in accordance with the attached

true copy of the opinion.

Pursuant to Rule of Appellate Procedure 14.3,

costs are taxed as follows:

$55.00 in favor of respondents and against

appellant.

An order Denying Motion for Reconsideration

was filed on October 31, 1979; copy attached.

IN TESTIMONY WHEREOF, |! have hereunto set my

hand and affixed the seal of said Court at Olympia,

this 6th day of. November, A.D. 1979.

JOHN J. CHAMPAGNE

Clerk of the Supreme Court

State of Washington

APPENDIX E

WASHINGTON SUPREME COURT ORDER

DENYING PETITION FOR REHEARING

NO. 45864

ORDER DENYING MOTION

FOR RECONSIDERATION

McDONALD v. HOGNESS

ee ee ne ee eee Oe TN

The Court having unanimously decided that

j the appellant's motion for reconsideration should be

denied,

It is ordered that the motion be and it hereby

is denied. :,

Dated this 31st day of October, 1979.

NaN aettireneracs

ROBERT UTTER

Chief Justice

92 Wn.2d 431

(sien. onda

RIDE LN Li I Ot

APPENDIX F

ORAL DECISION OF

WASHINGTON SUPERIOR COURT FOR

KING COUNTY

Judge James J. Dore, May 17, 1977:

THE COURT: | just want to thank al! the

counsel who participated in this case, and espe-

cially Mr. Sanders, who represented Mr. McDonald,

and Mr. Martin and Mr. Milam, as well as the legal

assistant, Kent Nakamura, who has cooperated in

the preparation of this case.

| would like to mention that at this juncture

of the case, the plaintiff has rested, and the Court

has the opportunity to weigh the evidence and see

if there is really any question of fact and whether

the Court can make a determination as a mater of

law as to the propositions that are presented to

the Court. And |! think | have reached that posi-

tion, and | am prepared to make a determination.

First, if you were here earlier in the morning,

you were aware of many situations where | was

admonishing younger people to go to school and

try to get an education and study hard, so to

speak.

| am very sympathetic here with Fred Mc-

Donald. He has labored hard and is an outstand-

ing student, and he certainly should have every

F-2

consideration there is to give, and | think that

goes to all applicants for the medical and law .

school. There are so many worthy candidates out

there and there ar so few positions open; however,

my responsibility is to make a determination as

based upon the law and within the purview of my

responsibilities.

Now, after we discussed this case for a con-

siderable length of time and taking much testimony,

we really come down to two basic propositions: We

have an admissions case here and whether there is

a reverse discrimination under the State and Federal

Constitutions is the first issue we have to inquire

into.

The University of Washington Medical School

has rather a sophisticated system for interview

processing and finally electing candidates to their

medical school. It is indicative that the Assistant

Dean, Dr. Belknap, virtually spends all his activity

working in this area, attending national conferences

and meeting with other people.

There was further testimony that--I think Dr.

Cullen has testified they spend from five to seven

thousand hours annually to go through these appli-

cations, which is far in excess of the amount of

man hours that goes into teaching the first year

class. And so | think that we can say that they

make a real effort to select out the people they

want for medical school.

eas be IS a Te a ee

Sih ae Sal BS AP Ri BEDE Eg BEN EE AELOPR PA IE

F-3

Now, | don't think we have to talk about the

students that are excluded until we come down to

approximately the last 500 who are personally inter-

viewed, and we find that all these students are

qualified. | am sure the medical school could pick

the last 190 or the first 100 and have substantially

the same results. It probably wouldn't make any

difference. | think the barometer is the high

caliber of the students who are competing to be in

medical school.

However, their responsibility goes further

than that. They have the responsibility from these

500 to select out the best students for the medical

school, for the community, qualifying under the

policy promulgated by the dean and the admissions

officers of the school.

And so they have set up the interview. And

they have various categories--they talk about the

academic record and the medical college aptitude

scores, and they have these other categories which

they feel are important in developing a physician

who will have an impact on the community. This

is not an easy thing to do.

| think when you come to court, you can't

leave your common sense behind. If you are

hiring people ‘and you have 10 finalists, you cer-

tainly want to have the opportunity to look at

these people and talk to them and make some first-

hand judgments as to whether or not you want

F-4

them to be part of your organization. Regardless

of their skills, you have certain built-in barometers

and scales to measure these people, even if it is

just simple common sense.

But, here, we have more than that. We have

the interviewers, and the interviewers were trained.

Some of them are trained to the extent of one hour,

plus their own personal experience--some of them

had prior experience and some of them had exper-

ience in medical school, together with their own

background and general ability. That certainly

qualifies them to make a judgment in this matter.

Now, they were furnished with these guide-

lines, recognizing their rather esoteric concepts,

but | think we are measuring very fine things.

Motivation is certainly a very difficult thing to

define and it is difficult to define demonstrated

humanitarian characteristics.

To prepare some standards for these would be

extremely difficult, but the school has made efforts

to do just that. They have been in conference

with the psychologists from the School of Psy-

chology, trying to refine this process as much as

they can.

When we look at the results, the results show

that only 1.3 percent of the students fail to com-

plete the program. That's almost 100 percent. |

don't think you can have a better success rate

than that.

ee — ae, Pee

F-5

| think we had further testimony from Dr.

Cullen, who said if they didn't have the interview

face to face, they would probably be 92 percent

effective.

These are very interesting facts, but we have

to go back to the interview and the standard of

law we are talking about. We are here in an equit-

able proceeding. It is an extraordinary remedy.

You are asking the Court to tell the University of

Washington how to conduct their interview, how to

conduct a discretionary act.

We don't do that. If they refuse to act, the

Court will direct them to act, but we are just not

equipped to second-guess their discretionary activ-

ity.

Now, in their determination, if they are arbit-

rary or capricious in a meaningful act, if they

have some program of selecting one student over

another--if the Court discovers some type of a

scheme in which an unfair result is reached, the

Court can interfere and can direct a different act-

ivity.

Here, under the testimony of Dr. Sax, he

indicated that this program is not--the interview is

not a good program. It should be in more detail.

Well, to. make this decision, | concede that,

but still, it doesn't make any difference. This is

a decision the University of Washington has to make.

They can formulate their own plan as to the inter-

view.

F-6

Now, as to the discrimination, we have a

group of people who are all qualified. The minor-

ities are all qualified and, in fact, it is interesting.

We heard the testimony of one of the doctors who

testified that he worked with the minorities who

were unqualified and he had such a difficult time,

he then took a position that they would only deal

with qualified minorities.

And they went throughout the United States

to recruit these people, and they have been very

successful. Our Supreme Court tells us, in the

interview, they can take into consideration the fact

that they are a minority and they are white, as

long as they are racially neutral.

We had a lot of testimony, and it is a hard

thing to talk about, but | think blackness is

merely a characteristic of a human being. It is

one of the things that goes into them, and it isn't

any different than whiteness or any other quality,

like the ability to do one thing or the other. This

can be considered.

And the _ interviewers were very honest.

They said they did consider this and this was part

of their determination, and this is certainly within

the Constitution.

| think further | can go ahead and made a

finding that the selection program as outlined by

the University of Washington Medi::al School is not

F-7

a discriminatory program, and their interview pro-

cess certainly is not arbitrary and capricious and

certainly is within the constitutional bounds.

So at this time, the Court is in a position

where | have to deny this relief. And | am sorry

Mr. McDonald is not able to go to medical school,

but that's what the law indicates.

Thank you, gentlemen. V.R. 514-520

APPENDIX G

CONSTITUTIONAL AND STATUTORY PROVISIONS

Section 1 of the Fourteenth Amendment to

United States Constitution in pertinent

provides:

"No state shall make or enforce any law

which shall abridge the privileges or

the

part

immunities of citizens of the United States;

nor shall any state deprive any person

of life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protec-

tion of the laws."

Section 601, Title 6 of the 1964 Civil Rights Act

(42 U.S.C. 2000d) states:

42 U

"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 sub-

jected to discrimination under any pro-

gram or activity receiving federal finan-

cial assistance."

.S.C. 1983 provides:

"Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any state or territory, sub-

jects, or causes to be subjected, any

citizen of the United States or other per-

son within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress."