# Petition — McDonald v. Gerberding

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 962

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1614%3A1. Public record. Not legal advice.